SPECIAL ZONING BOARD OF ADJUSTMENT
MEETING
THURSDAY, FEBRUARY 19, 2004
41 South Main Street
Members Preesent: Paul Parker, Gordon Grant, Russell Stoakes, Charlie King, Randy Orvis
Staff Present: Fran Osborne
Public Present: Beth Fischer, Rocky Newton, Judy Emerson, John Aylard
· Chairman Parker called the meeting to order at 7:02 p. m. stating this is a special meeting for 2 cases to hear by a full board. The minutes of the February 5, 2004 meeting were reviewed. A motion was made by Randy Orvis to approve the minutes as presented, Gordon Grant 2nd, Russell Stoakes abstained, motion carried. Chairman Parker seated Gordon Grant for Margaret Russell.
· Application for Special Exception by Elizabeth Fischer as provided in Section 104 (B) (2) of the Zoning Ordinance for 43 South Main Street (Tax Map U6, Lot 104). Chairman Parker introduced board members to those present stating there is a full board this evening. Mrs. Fischer stated she will proceed. Mrs. Fischer said she is the owner of 43 S. Main St. since 1985. She is seeking a Special Exception to expand upward (2nd story expansion.) By reading of the code I'm not changing the footprint and it will actually be lower than the existing building. It is not in the flood plain. There is no impact
of abutters and there is no visual obstruction. Pictures Mrs. Fischer presented were reviewed by the board. She wants to put a 2nd story on unit #4 – add 2nd story addition to the existing 1st floor #4 unit existing. I believe I comply with the spirit of the ordinance. It is less than 35' and does not block views or sunlight. The floodplain is a non-issue. She is not in the 100-year floodplain. Randy had his floodplain maps and said this was so. No public discussion.
Randy Orvis - discussion on where addition is.
Charlie King - documentation on existence of 4th apartment. Tax assessing records show this has been there and is grandfathered as being there. Public portion closed. Discussion on floodplain map presented by Randy.
Randy Orvis motioned we grant the Special Exception to Elizabeth Fischer based on evidence presented for location as it does not adversely affect abutting property, does not block views and does not exceed maximum heighth of 55', Russell Stoakes 2nd, all in favor, motion carries.
· Rocky Newton & Judy Emerson - Application for Appeal of an Administrative Decision in relationship to Section 2.01 (B) of the Zoning Ordinance - no reason for the denial made by the ZBA on 12/4/03 regarding Application for Variance in relation to frontage requirements, Ridge Road (Tax Map R59, Lot 31). Charlie King made a motion for 5 minute recess at 7:25 p. m., Gordon Grant 2nd, motion carried. Meeting reconvened at 7:30 p. m. Chairman Parker explained the reasons for an appeal. Rocky Newton stated he had new evidence. He has an economic hardship in that he cannot obtain financing and
subdivision. Rocky read his narrative (attached). Discussion on # (11) Zoning & Planning Key 495 414k495 Most Cited Cases - applicants for a zoning variance may establish unnecessary hardship by proof that: (1) a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment, (2) no fair & substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property, and (3) the variance would not injure the public or private rights of others.
Rocky Newton - I have a constitutional right to enjoy the property. I need a variance for tax purposes & a financial need to establish a mortgage. I'm in the process of building a home right now. When lots were originally cut out there was a 200' frontage requirement, therefore 400' was required amount of frontage for 2 lots. In the meantime the frontage requirement has changed. Charlie King - did you obtain a building permit? Rocky Newton - yes. Chairman Parker asked if he has tried to find a solution other than a variance.
Special Zoning Board of Adjustment Meeting February 19, 2004 (continued) Page 2
Rocky Newton - the only thing I could do is an expensive road. The property is family owned. Discussion on hardship. I stand on the hardship issue from Simplex. I would highlight #11. We believe our definition on unnecessary hardship has become too restrictive in light of the constitutional protections by which it must be tempered. In consideration of these protections, therefore, we depart today from the restrictive approach that has defined unnecessary hardship and adopt an approach more considerate of the constitutional right to enjoy property. Henceforth, applicants for a variance may establish unnecessary hardship by proof that: (1) *732 zoning restriction as applied to their property interferes with their reasonable use of the property,
considering the unique setting of the property in its environment; (2) no fair & substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others.
Randy Orvis - are we right now hearing the request for the rehearing?
Rocky Newton - I have this property to help my family - I sold my property in Middleton to build near my family. My brother is a quadriplegic and my mother is ill at 70. One previous abutter who attended original session was for my request. No questions. Chairman closed the public portion of the hearing.
Discussion to grant the rehearing on information presented by the board.
Charlie King made a motion to grant the appeal for rehearing, Russell Stoakes 2nd, all in favor, motion carried. Charlie King made a motion to continue and have the rehearing this evening, Gordon Grant 2nd, motion carried.
Evidence was presented as above. No public discussion. Chairman closed the public portion for rehearing.
Russell Stoakes - discussion on the subdivision previously granted at 200' per lot for 400' total.
Charlie King - it is usually normal for frontage requirement to decrease, not increase.
Chairman Parker - desire was to keep rural character.
Randy Orvis - the intent of the Zoning Ordinance was not to have a house every 200'. Discussion. He doesn't need a variance. He can do a private road if he wants to.
Charlie King - he may have to bring the road up to town specifications.
Randy - he can draw a plan with 250' off the road and go to the Planning Board for a subdivision. Discussion on private road and 50' road frontage and right-of-way to back lot off Ridge Road. Street definition as well as frontage definition was discussed. Section 3.10 also discussed and Private Road standard and how to go forward. Rocky Newton wishes to go forward with variance procedure. Discussion on just handling the two issues for previous denial (unnecessary hardship & contrary to the spirit & intent of the ordinance). Discussion on #2 - this benefits the family and him as a tax payer. #5 - spirit & intent of the ordinance - discussion on the 2 lots. Randy Orvis said the house is way out back. I think he meets that. Charlie -
the goal of the development was to keep this area rural and not scattered & premature development. No future subdivision to be allowed should be added.
Russell Stoakes - I don't see a problem. The house will be way off the road 700'. Discussion on OSP-ZBA decisions on hardship - frequently asked questions web page.
Charlie King - discussion on being able to put 2 homes on this piece of property. His hardship is that he can't get financing without subdivision. The applicant needs to have his own land to be able to obtain financing. The applicant has a right to enjoy reasonable use of his property. Discussion.
Gordon Grant made a motion to grant the variance for Rocky Newton/Judy Emerson based on new evidence presented, Russell Stoakes 2nd, all in favor, motion carried.
· With no further business to discuss, Gordon Grant made a motion to adjourn at 8:35 p. m., Charlie King 2nd, motion carried.
APPROVED
__________________________________________ _______________________________
Paul Parker, Chairman Date
Zoning Board of Adjustment - Town of Farmington
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