CITY
OF BERLIN, NH
ZONING BOARD OF ADJUSTMENT
MEETING MINUTES
January 20, 2010
Members Present: Chair Harold Bigelow, Reverend Dana Hoyt, Noreen Elliott, Greg Estrella, Ron Cote, and Henry Boucher
Members Excused: Richard Tremaine
Others Present: Sean Lamontagne, Luke Webster and Greg Michael (Wiggin & Nourie PA), Jason Ross (HEB),; Christopher Meier, (Cooper
Cargill Chant, PA ); Rita Debonis; Craig Lyons, Berlin Daily Sun; Mike Rozek, Councilman; Max Makaitis, Economic Development Director;
Robert Danderson, Councilman; Pam Laflamme, City Planner; Joe Martin, Code Enforcement Officer; Alison Findsen, Secretary
Chair Bigelow opened the meeting at 6:30 p.m.
Minutes: It was noted that the minutes of the previous meeting had stated Mr. Cote as action chair and it should have read Mr. Tremaine (under members present). With the previous change, Mr. Boucher made a motion to accept the minutes of the previous meeting, with Mr. Estrella seconding the motion and everyone voting in favor.
Request for a rehearing: Luke Webster, on behalf of Mr. Lamontagne requested that the request for an Equitable Waiver precede the rehearing request. Chair Bigelow declined the request, keeping the order with the agenda.
The Board reviewed the request for a rehearing of case number 13-09, presented by Sean Lamontagne. Chair Bigelow stated he would recluse himself from voting, because he had not been present at the previous hearing, unless there was a tie vote. Reverend Hoyt stated he believed the request for a rehearing, using the reference of the zoning ordinance was misapplied, because this was a case for structural use and the ordinance (17.32.1.a-) was regarding use. Mr. Boucher and Mr. Estrella did not comment. Mr. Cote thought there might be enough new info for a rehearing, as the applicant was taking care of the overhang. Mr. Bigelow believed there was not enough for a rehearing and he was in agreement with Reverend Hoyt regarding the misuse of the ordinance.
Motion: Reverend Hoyt stated that because there was no added evidence to warrant a rehearing. Reverend Hoyt made a motion to deny the request of a rehearing due to the lack of new evidence. Mr. Boucher seconded the motion and everyone voted in favor.
Chair Bigelow opened the public hearing for the next case and explained the proceedings of the hearing.
Applicant: 01-10 S L Tree built Real Estate Holdings Co. LLC (Sean Lamontagne) of Berlin, represented by Luke Webster, Wiggin & Nourie PA, of Manchester, NH
Request: Equitable Waiver, requested under Article XIX, Section 17-202.4 of the Berlin Zoning Ordinance. The said property is found in a Business General Zone, and on tax map 128, lot 215.
Discussion: Mr. Webster, of Wiggin & Nourie PA, was sworn and explained the roof had a pitch of 10 inches of overhang. He stated his client applied for and received a permit for the job, and began work in good faith, working with the Enforcement Officer, Joe Martin. The building is grandfathered as a nonconforming structure on the lot.
1. The violation was not noticed by owner, former owner, owner’s agent or representative, or municipal official, until after the structure in violation had been substantially completed. [via timeline previously mentioned --- The application for a building permit, along with plans 9showing the pitched roof design), were submitted. At the time of the plans were submitted and until the roof was substantially completed the applicant was not aware that the roof was in violation of the Ordinance. The permit was issued October 2009, in accordance with the condition the applicant act on the permit within 30 days of its issuance, the applicant began construction. According to Mr. Webster, the work went on for two weeks with not interference. After a short delay, Mr. Webster stated they were told by the code enforcement officer to
complete the construction. Mr. Webster then stated that neither the applicant nor the code enforcement officer recognized the violation until the roof construction was substantially completed. He set a timeline of having the permit granted on October 28, 2009. He then began to work. Most of the work was completed by November 19, when he first heard of the appeal of an Administrative Decision, where he had to stop work. At this point it was completed, except for three rows of shingles on the Debonis property -- the Right of Way. Mr. Webster gave the reasons per RSA 674:33-a.
2. The violation was not an outcome of ignorance of the law or Ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of the owner, owner’s agent of representative, but was instead caused by either a good faith error in measurement or calculation made by the owner or owner’s agent, or by the error in Ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority. --- Under this criteria the violation for which the applicant seeks an equitable waiver must have been caused by one or two conditions: a) an error in measurement or calculation by the owner or owner’s agent; or b) an error by the municipal permitting official in interpreting or applying the ordinance. The plan showed the pitched roof and
the permit was granted.
3. The physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of the property in the area, nor interfere with or adversely affect any present or permissible future uses or any such property. --- Mr. Webster stated the proposed us of the property as a non-residential pub is a permitted use within the Business General Zone, in which the property is located. Property values will not be impacted. No public or private nuisance will be created by the pitched roof and roof overhang. Mr. Webster added that the pitched roof is designed to prevent snow from falling off the roof and the applicant proposes to design and install a gutter system that will prevent runoff from falling on the right of way along the property line. The building has existed in its location for almost 90 years
without issue or complaint. The roof overhang does not significantly impact the abutting property such that any diminution in property value will result. The overhang is not a ground encroachment but alternatively exists at the roofline.
4. Due to the degree of the past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained that it would be inequitable to require the violation to be corrected. --- Applicant would suffer a substantial economic hardship if forced to demolish and replace the roof. Denying the proposed equitable waiver is not outweighed by any gain to the general public as the neighborhood surrounding the property values will be impacted.
Jason Ross, HEB, structural engineer, was sworn in and stated the way the roof is built will not shed snow, nor would raking the snow be necessary. Icicles should not be a problem, but gutters could be put up to change the course of the water. Chair Bigelow asked if he was stating there would be no issue of snow or ice falling, and Mr. Ross answered that was the intent of the construction. Mr. Webster stated there was an equal right to use the right of way also. It was noted that Mr. Lamontagne will help to maintain the right of way.
Support: Al McLain, of Berlin, spoke in favor of granting the Equitable Waiver. He stated he owned the new office complex and that if Mr. Lamontagne had not fixed up his building, it may have been harder to get his tenants to agree to rent. Too many are being left after fires. He stated it would be an injustice to deny the request.
Councilman Robert Danderson, of Berlin, spoke in favor of granting the Equitable Waiver. He stated what the applicant was requesting was reasonable. He noted how many building have been left untouched after a fire. He stated that a flat roof does drain to the side and noted that the City is trying to stop the building of flat roofs and Mr. Lamontagne should not be penalized for doing what the City wants.
Max Makaitis, Economic Development Director, Berlin, stated that he supports developing the economy of Berlin and this business will help by the hiring of employees. He stated the key word was equitable; the applicant built a roof that is attractive and fits the neighborhood. He stated that no public harm would be done by granting the waiver, but would be done to the applicant if refused, as it would be costly. He stated he works with NCIC, who granted the loan to Mr. Lamontagne and that this would eventually help the economy.
Councilman Michael Rozek, also spoke in favor of granting the Equitable Waiver. He stated it was a shame to have two neighbors battling over a 10” overhang, which has become an emotional challenging situation. He stated the 8 foot right of way was used by both sides. He noted a flat roof decays and rots. He felt if the neighbor did not want that business there, they should have spoken up earlier.
Opposition: Mr. Meier spoke in representation of Rita Debonis, against the granting of the Equitable Waiver. He stated it was not just about 10 inches of overhang, but install a roof that will shift the impact of the snow/rain off his property and onto Mrs. Debonis’ property. He pointed out that the easement was for the use of the property, but that it was Mrs. Debonis that owned the right of way and paid taxes on it. He stated it was the only means to her home but the applicant had other access to his. He stated the applicant has not shown that the project has been substantially completed by the time he had the news and had to stop. He questioned the timeline given by the applicant and believed it to be wrong. He stated his client submitted an appeal on the 14 of November and the applicant kept working until the 19th. He
also stated the pitched roof was a change to the property and shifts the snow/ice load onto the property of Mrs. Debonis. He stated that Mr. Lamontagne stated he would clear the right of way, but Mr. Meier questioned whether or not he (Mr. Lamontagne) could be believed. He added that if Mr. Lamontagne sells the property, there could become a problem with the new owners. He stated the expert who stated snow load would not be a problem shifted from unlikely to have a snow fall problem to not likely. He noted the heavy snow fall in the area and stated that all precipitation will end up falling on to Mrs. Debonis’ property. Mr. Meier submitted pictures (Exhibit A, B, C) showing ice on the roof and snow on the right of way. Mr. Boucher mentioned the possible use of gutters. It was noted that gutters do not always work well and tend to fall off. Mr. Meier stated that the only solution would be a flat roof and it should have been done in the first place. He reiterated that the work
continued after their motion for an administrative decision appeal. He again questioned the timeline the applicant gave. Mr. Boucher interjected that Mr. Lamontagne may have rushed because of the weather. Mr. Leier stated that it was up to the Board to decide, adding that he believed Mr. Lamontagne did not use “good faith” when working on the roof. Mr. Leier stated that the timeline showed it was not good faith, as he began the work in October and his client’s appeal was submitted on November 14, and the applicant did not stop work until the 19th. Mr. Leier again reiterated that the applicant could not prove his timeline. He stated the applicant completed the work after the request to stop. No one else spoke against the granting of the waiver.
Final Word: Greg Michael spoke for the applicant, stating that the applicant proceeded in good faith of the permit. To deny the waiver, it would need to be proven that the applicant did not work in good faith... He stated the roof was designed to help stop the forming of icicles, and noted that heat tapes would make snow and form icicles. He stated that gutters would help to redirect the water. He reiterated the applicant built in good faith and it would cost him near $50,000 to replace the present roof. Mr. Leier stated it would be around $23,000 and submitted an estimate (Exhibit D).
Chair Bigelow closed the hearing at 7:50 p.m. and summarized the case, which was not disputed.
Board
Discussion: The Board questioned what “substantial completion” was. The building was more than 90% complete, so they felt it was. They questioned the conflict with the timelines. Ms. Laflamme presented an email communication between her and Joseph Martin which showed a timeline of his actions and substantiated Mr. Lamontagne’s timeline. October 28 the permit was issued. A letter from the abutters received on November 5, with the application for appeal being received on the 16th. Notices were sent out on November 19th, of which Mr. Lamontagne received. The Board believed that the applicant did indeed act in good faith, according to the permit. They believed that Mr. Martin also acted in good faith when issuing the permit. The Board reviewed at the pictures (Exhibits A, B, C). They mentioned the right of way
being private property owned by Ms. Debonis, but the right given to Mr. Lamontagne’s property for use. They discussed the water/snow/ice issue and the use of gutters. The Board discussed the cost of replacing the slant roof. The Board believed that the applicant met all four of the criteria to grant the waiver, but felt that a condition of installing gutters would be more beneficial to the neighbor, to keep snow and ice off of her property.
Decision: To grant the Equitable Waiver with a condition of gutters being installed.
Motion: A motion was made by Mr. Boucher to approve the request for an Equitable Waiver, with the following condition:
Rain gutters be placed on the roof to redirect the water.
The motion was seconded by Reverend Hoyt and everyone voted in favor.
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