CITY OF BERLIN, NH
ZONING BOARD OF ADJUSTMENT
DRAFT-----MEETING MINUTES-----DRAFT
December 16, 2009
Members Present: Acting Chair Ron Cote, Henry Boucher, Richard Tremaine, Greg Estrella, Dana Hoyt
Others Present: City Planner Pam Laflamme; Joe Martin, Code Enforcement Officer; Rita Debonis; Attorney Chris Meier; Sean Lamontagne; Attorney Luke Webster
Dana Hoyt, Clerk took a roll call of the board, all present with the exceptions of Chair Bigelow and Norine Elliot.
Acting Chair Tremaine opened the meeting at 6:32 p.m. and appointed Greg Estrella as a voting member for the evening.
Minutes: Mr. Cote made a motion to accept the minutes of the October meeting, with Mr. Boucher seconding the motion and everyone voting in favor.
Acting Chair Tremaine explained the meeting was to deliberate on case 13-09, Rita Debonis, Appeal of Administrative Decision. The case involves an appeal of an administrative decision of the Building Inspector to grant a building permit (no. 131-B09) dated October 28, 2009 regarding a roof permit for 777 Main Street (Parcel 128-215).
Acting Chair Tremaine explained the procedure of the hearing including asking members whether they felt they had any conflicts of interest. There were none determined. Acting Chair Tremaine read the rules of conduct to the board and the audience.
The Clerk read the public hearing notice for the case.
Applicant: Case number 13-09 Rita Debonis, an abutter to the south of 777 Main Street, requests an Administrative Appeal which involves an appeal of an administrative decision of the Building Inspector to grant a building permit (no. 131-B09) dated October 28, 2009 regarding 777 Main Street (Parcel 128-215).
Petitioner and her attorney Christopher Meier were both sworn in by Acting Chair Tremaine.
Attorney Meier presented the facts of the petitioner’s case. The fact of the case at issue is that the Building Inspector allowed a permit for a new roof. The pre-existing roof was a flat roof and the owner of 777 Main erected a pitched roof that leaves the original foot print of the property and overhangs onto Ms. Debonis’ property. A map from the City’s GIS was provided to the board for review. The petitioner referenced the City’s setbacks regulations and indicated that they should be applicable as presented. The permit according to the petitioner was issued unlawfully. The pitch creates a nuisance of snow and rain for Ms. Debonis. The petitioner does not believe the pitch should have been allowed and asks for relief.
The board asked questions about the overhang and how much it overhangs on each side.
Ms. Debonis was sworn in and asked about right-of-way and who maintains the right-of-way. The conversation moved on the actual placement of the property and then moved back to the right-of-way which Ms. Debonis clarified she maintains as the owner of the underlying property.
Attorney Webster was sworn in and shared with the board a survey plan completed by York Land Services for Ms. Debonis. The overhang is ten inches and only about 4-5 inches over the property line. The structure is a grandfathered, commercial structure, which is legally non-conforming. The second and third floors were removed; the non-conformity was decreased by square footage only. The building footprint remains the same. The structure was built before the City had zoning. The new design is safer for snow loads and better designed. Attorney Webster cited NH RSA 674:19 as to the applicability of the Zoning Ordinance related to the alteration of a building and the Zoning Ordinance.
Attorney Webster reviewed case law from other cases he deemed similar in circumstance and asked the board to uphold the decision made by Mr. Martin to allow the permit.
Mr. Lamontagne was sworn in and asked about where he stores snow from the roof. He replied that he maintains the snow from the AV Home Care side of the property. Mr. Lamontagne explained that a flat roof was undesirable because of repeated interior flooding problems.
Rebuttal from Attorney Meier and Ms. Debonis: Attorney Meier indicated that roof style was simply a cheaper alternative and was more of a convenience issue for Mr. Lamontagne than it was a nuisance to his client. The permit issue is simply one that must be rectified. Pictures were reviewed with the board again. The attorney is concerned about snow fall onto his client’s property.
Summary of the case was given by Acting Chair Tremaine. The City issued a permit to Mr. Lamontagne which ultimately resulted in an overhang of the roof at 777 Main Street onto Ms. Debonis’s property causing snow and water drippings onto the property creating a nuisance. The roof line is also increasing the existing degree of nonconformity.
Hearing was closed at 7:30PM
Board
Discussion: The board discussed the case and questioned the definition of building footprint and debated the term non-conformity. Questions were asked and answered of the building inspector. Mr. Hoyt indicated that he thought the only issue they could review in order to make a decision was the issue of nonconformity which he believed to be an obvious issue.
The board then reviewed Article XIX Section 17-202, Item 1 Appeals from Administrative Decision. Acting Chair Tremaine indicated that it comes down to whether the Building Inspector made an error. Mr. Hoyt believes that the decision was made in good faith, but that indeed an error was made.
Attorney Meier stated that Mr. Martin should not be participating in the deliberate phase of the discussions in order to avoid any improprieties. Nothing improper had been stated, but he wanted to remind everyone of the procedures.
Acting Chair Tremaine stated that decision was whether an error had been made. Mr. Hoyt made a motion to grant the appeal based on the violation of the ordinance concerning the increase in the degree of nonconformity of the property.
The motion was seconded by Mr. Cote; a roll call vote was taken with all votes in the affirmative. Appeal granted.
Adjournment: Mr. Boucher made a motion to adjourn the meeting with Mr. Cote seconding the motion and everyone voted in favor.
Acting Chair Tremaine closed the meeting at the meeting at 7:59 p.m
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