ANTRIM ZONING BOARD OF ADJUSTMENT
March 3, 2009 Board Meeting
Members & Staff Present: Diane Chauncey Doug Crafts John Giffin
Ron Haggett John Kendall Len Pagano Frank Scales
Paul Vasques Don Winchester Paul Young
Members & Staff Absent: None
Public Attendees: Paul and Vincent Falcigno
Beverly and David Hall
John Rattigan, Attorney for the Halls
Public Meeting: Chair Kendall convened the meeting at 7:13 pm. Chair Kendall introduced the Board and Staff.
7:15 Public Hearings:
Paul & Theresa Falcigno - File 2008-18ZBA - Rehearing of an Area Variance to permit the construction of a carport within the minimum front yard setback: fifty feet (50') from the street or right-of-way line (Wheelers Cove Road) and twenty feet (20') from the minimum side yard setback. Chair Kendall requested that Ms. Chauncey read the Public Notice, which follows: "Notice is hereby given that a public hearing will be held at 7:15 PM, Tuesday, March 3, 2009 at the Antrim Town Hall concerning a request by Beverly & David Hall for a REHEARING of an area variance from Article VIII, Section C.3. of the Antrim Zoning Ordinance to permit the construction of a carport within the minimum front yard setback: fifty feet (50') from the street or right-of-way line (Wheeler's Cove Road) and Section C.4. twenty feet (20') within
the minimum side yard setback on the property of Paul & Theresa Falcigno located at 60 Wheeler's Cove Road (Tax Map 214, Lot 76) in Antrim, NH 03440, located in the Lakefront Residential District". The notice was posted in the Ledger/Transcript on February 17, 2009. All abutters had been notified with all receipts returned but one.
Chair Kendall asked Mr. Falcigno to present his proposal. Mr. Falcigno explained how he had owned his seasonal home on Pierce Lake for 34 years. The cutout in the road has not been altered in anyway. He explained how he had parked his covered boat in the cutout for many years. Four years ago, a branch fell during the winter months, hitting his boat and tearing the cover. At this point, he realized he needed to do something. He thought of four options and how the choices would work for him.
- Store it in the same spot – no carport – hope for the best
- Trailer it to his home in Connecticut – he is getting too old
- Store in boat storage - original plan, but new owners raised rate 50%, and he is on a fixed income - not able to pay extra.
- For him, the only choice - store in a carport
At this point, Chair Kendall interrupted Mr. Falcigno and said that he thought that since Halls were the applicants for the rehearing, the Board should now hear their reasons for the rehearing. There was some discussion as to who should be speaking when. Chair Kendall wanted to move the meeting forward. Attorney Rattigan said that it did not matter who spoke when and the Falcignos bore the burden of proof to show that their request fit the area variance criteria.
Attorney Rattigan had handouts for the Board: 1.) January 13, 2009 letter requesting a rehearing and summarizing the arguments, 2.) February 24, 2009 application letter, 3.) a letter from Mr. Hall's cardiologist, 4.) a Mellen Survey letter with color pictures, and 5.) the December 16, 2008 ZBA meeting minutes (for the purpose of noting the fire chief's refusal to sign a document stating that an emergency vehicle could past the car port).
Attorney Rattigan wanted to address the facts. He did not believe that the information that had been presented to the Board satisfied the criteria for an area variance. Attorney Rattigan said that it is customary to request a certain number of feet for relief of the area variance. What are they precisely asking for? Attorney Rattigan stressed that the Zoning Ordinance that required certain setbacks was adopted for obvious reasons and to allow a structure in the minimum setback developed mobility issues as well as safety issues.
Attorney Rattigan continued with what he felt was the most difficult criteria for the applicant to satisfy, is the ‘hardship’ criteria. He said that to receive a variance that satisfies the hardship criteria, there must be something unique about the property such as the topography, wetlands, something physically unique that distinguishes it from other properties in the zone. He said that there was nothing physically unique with the Falcigno property. He cited the standard set in the Malachy Glen v. Town of Chichester case, 155 NH 102 (2007).Attorney Rattigan continued that the applicant had said that he had options, such as parking the boat without a carport protecting it.
Attorney Rattigan said that the applicant also needs to demonstrate that granting the variance will not be contrary to public interest. He referred to the Chester Rod and Gun Club, Inc. v. Town Chester case in which the Board must first examine the applicable zoning ordinance, and examine whether granting the variance would threaten public health, safety, or welfare; or it would alter the basic character of the locality. He then referred to the pictures and that there were no other structures built out to the road. To allow this structure to remain along the road and to allow others to build in a similar manner would undermine the public safety and welfare.
Attorney Rattigan felt that the Board was unreasonable to conclude on the record before it, that the granting of this variance is consistent with the spirit and intent of the ordinance, or that substantial justice will be done. The fact that the Falcignos prefers to store his boat onsite rather than elsewhere offsite does not rise to the level of injustice. The Board’s findings do not address this criterion.
Lastly, Attorney Rattigan said that the applicants must show that the carport does not diminish the value of surrounding properties. The carport is markedly different and as such it is offensive. It should not be allowed to remain in place. Attorney Rattigan stressed that this is not a popularity contest - it is really about applying the criteria. He understood that the Board has received a number of letters in support of the carport, but there was a 3 to 2 vote that showed the Board was conflicted about the decision.
Chair Kendall asked if the Board had any questions.
Chair Kendall asked the Halls if they had anything to add. Mrs. Hall thanked the Board for agreeing to a rehearing. She told how her parents had owned the seasonal home that she and her husband now own. They have been summering on Pierce Lake for over 45 years. There has never been structures that close to the road in the 45 years that she has driven the road. Mrs. Hall said that the Falcigno carport on the Southeast side is placed so that it follows the rut of the road. She explained this is not evident now because a new erosion track has developed since the carport was constructed.
Mrs. Hall spoke of the Falcigno letters of support. With a map of the area, Mrs. Hall showed the Board members the proximity of their parcels to the carport, emphasizing that there was no need for them to drive past the structure. It does not show on the map that there is a separate road that continues behind the cottages so that they have no need to use Wheeler’s Cove Road. They have their own access. Mrs. Hall showed properties that needed to use the road and the potential problems of driving past the carport.
Mr. Pagano asked how trucks were able to turn around in the small area. Mr. & Mrs. Hall explained that it is very difficult and that a 3-point turn would be necessary.
Mrs. Hall showed the photos and report that Mr. Mellen (surveyor from Hillsboro) had prepared which indicated the width of the road. Pictures taken recently in deep snow showed two stakes and the tape showing a road width less than eleven feet (11’). The width of access past the carport is limited. The tape in the photo showed that the stake within the carport measured eleven feet (11’). Mrs. Hall said that emergency vehicle, large trucks, etc, can not get down.
Mrs. Hall shared a situation that exemplified the difficulty in getting by the carport. Shoreland work needed to be done while the lake was drawn down which would require snowplowing. Plowing would be impossible with the carport in place. She further explained that the septic truck driver was unable to pass by the carport. Mrs. Hall then detailed Mr. Hall’s heart condition. He has had numerous heart attacks and medical procedures for his heart condition. She feared what would occur if emergency services could not get down the road by the carport. In summary, Mrs. Hall reiterated that the carport sits in the setbacks, it is an eyesore, it devalues her property, and she would like it removed.
Public Hearing: Chair Kendall opened the public hearing, and asked that the abutters letters be read. The following letters are in File #2008-18ZBA, Rehearing of Area Variance:
- Carol & Kenneth Nealy
- Helen & David Weymouth
- Eric Piekanski
- Gerri & Harold Foster
- Dean DelVecchio
- James & Vicki Guill
- Robert & Paulette La Macchia
- Stonewall Landscaping (Tharm Farner)
- Cottage Grove Cardiology
There were no other abutters present - either for or against the proposal. Chair Kendall asked if anyone else would like to speak. Mr. V. Falcigno spoke on behalf of his father. He said that the Halls and the Falcignos use the same Septic Removal Company, and there has never been a problem. The letters of support from neighbors stated that the carport is not a problem. Access is not an issue. The road has never been plowed in the winter. The carport fits into the neighborhood. His father’s seasonal home is well maintained and he feels that Mrs. Hall’s core objection is that she does not like the way the carport looks.
Attorney Rattigan asked if anyone can put anything up and then not have to take it down. The Board should be confident enough to make a decision.
Mrs. Hall said that she is concerned about access, not the way the carport looks.
Mr. Hall told of the septic truck and the measurements.
Mr. Falcigno said that he has a receipt from All Clear Services (Septic Cleaning) – the same company that the Hall’s hire and that there has been no issue in driving by the carport.
Chair Kendall closed the Public Hearing.
Deliberation: Chair Kendall asked for questions or comments from the Board members:
- Mr. Giffin stated that he was not anymore convinced that the carport should remain in its present location. He stated that if Mr. Falcigno came to the Board for a variance, he would not be in favor of granting the request. He questioned if the carport could be placed in another locale and questioned the legality of the right of way. The measurements of the right of way were conflicting depending on which side of the argument. The existing conditions could not presently be viewed. He did not know the answers and felt that the Board should continue the rehearing until a site walk of the property could occur and Town Counsel could be questioned concerning the right of way.
- Mr. Crafts agreed with a continuance.
- Mr. Pagano considered the concerns of both parties. The Board should show due diligence and examine all criteria and concerns of both parties. He felt that it would certainly be more desirable to deliberate while all of the Board was present. In his opinion, the carport appeared to be glaringly obvious in the right of way. Mr. Pagan felt that it was unfortunate that Mr. Falcigno erected the structure without a building permit based on the opinion of the seller.
- Mr. Crafts thought that Mr. Falcigno should be given the benefit of doubt.
- Mr. Pagano stated that the abutters' letter stating that the road has never been plowed should not be a mitigating factor. If a property owner should desire to plow the road, there should not be an obstruction. Caution should be observed in the Board's ruling.
- Ms. Crafts (who lives on Gregg Lake) said that there are many small non-conforming lots and lots of right of ways along lakefront properties. He stated that it was too bad a lawyer is involved. Living on a lake is different from other areas of town. Abutters do play a role, but he would like to do a site walk before making a decision.
- Mr. Young who (lives on Pierce Lake) agreed with Mr. Crafts. His property is on a joint right of way with 15 other property owners. The fifteen owners cooperate in the maintenance of the road and have done so for many years. Mr. Young said that he was appalled that it had come to this and that it was a shame the neighbors could not work it out before coming to the Board with an attorney.
- Chair Kendall said that it seemed like both parties were nice people and it was difficult since emotions played a role in the case. The Board needs to review the criteria carefully. The Antrim Zoning Ordinance is not clear about a right of way, and the property owner’s deeds show no clear bounds.
The Board members continued to discuss the above points. Mr. Young made two motions. Neither was seconded. A third motion by Mr. Young:
Mr. Young moved continue to a date convenient to both parties and their attorney. The date of May 12, 2009, a Tuesday, at 6:00 PM (rain or shine) to: first.) review the site at 60 Wheeler’s Cove Road; and second.)to continue the Public Meeting at the Town Hall.
It was seconded by Mr. Pagano, and unanimously agreed upon by all.
The Falcignos, the Halls, and Attorney Rattigan left the meeting room.
Approval of Minutes Mr. Young made the motion to approve the minutes of the January 20, 2009 Zoning Board of Adjustment as written. It was seconded by Mr. Pagano, and unanimously agreed upon by all.
Mr. Pagano moved to adjourn the meeting, which was seconded by Mr. Young and unanimously approved by the Board. Chair Kendall adjourned the meeting at 9:20 pm.
Respectfully submitted,
Diane M. Chauncey, Planning Assistant, On Behalf of the Antrim Zoning Board of Adjustment
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