“ SPECIAL “
ZONING BOARD OF ADJUSTMENT MEETING MINUTES
WEDNESDAY, DECEMBER 8, 2004
356 Main Street – Farmington, NH
Members Present: Margaret Russell, Tom Brennan, Russell Stoakes, Gordon Grant, and Joanne Shompe
Absent: Neil Gosselin, Jr., John David Aylard, and Donna Gorney
Recused: Randy Orvis
Staff Present: Paul Esswein, Doreen T. Hayden,
Public Present: Raymond F. Riley, Randy Orvis-Representing WCV, Inc. Attorney
Craig Salomon-Representing WCV, Inc. Phil Sirowik, President-WCV, Inc.,
Attorney Laura Spector-Representing the Selectmen, Town of Farmington
OLD BUSINESS:
Chairman called the Special Zoning Board Of Adjustment meeting to order at 7:04p.m. Chairman notes that the previous meetings minutes will not be reviewed tonight; review will be conducted at the next scheduled monthly ZBA meeting to be heard on January 6, 2005.
Chairman reminded each board member present of the December 14, 2004 training session that is to be held at 6:30p.m. in the assessing clerks office, as the Selectmen’s Chamber is not available that evening.
Russell Stoakes motions to adjourn until 7:30p.m., Gordon Grant 2nds, all in favor, Motion Passes.
NEW BUSINESS:
Chairman Russell called the Special Zoning Board of Adjustment Meeting to order at 7:35p.m. Chairman seats Joanne Shompe and Gordon Grant to allow for a full board.
Attorney Craig Salomon opens discussions with his introduction as representation of the applicant Mr. Phil Sirowik, President, WCV, Inc. They are at this meeting tonight for a variance application on the same lot on Hornetown Road most of the board members have considered at one time or another in the context of the appeal of the administrative decision. This is a different appeal with different standards. Briefly review of where they are at and where they would like to go and for the sake of the new members or those that have not been to previous meetings. Attorney Salomon discusses the sub-division of Hornetown Road many years ago into long narrow lots with 200 ft of frontage on Hornetown Road, elaborating on the various lots known as 10, 11, 12 and 13 that his applicant has acquired.
WCV, Inc. constructed homes on 10 and 11, 2 homes on lot 12 and 1 home on lot 13; the proposal tonight is to add a 2nd home on lot 13 for which this variance request is being sought. A private driveway known as Shepherds Lane is servicing those homes already constructed and would also be used by lot 13 for access. There is a deeded right to use the access and the homeowners are responsible for maintenance and plowing of the road. Randy Orvis has handed Attorney Salomon a sketch showing the potential to bring a road in from Hornetown Road that would meet the towns standards and regulations this sketch also shows the dimensions and shape of lot. The lots are located in the AR zone that has frontage requirements of 250’ ft frontage, the ordinance requirement today. However, in previous meetings there were discussions about whether that frontage requirement should be increased if there is a proposal to build 2 homes.
Attorney Salomon refers to table 2.01B page 20 (copy attached) of the Zoning Ordinance and he reads it that you cannot have more than 1 dwelling unit per 3 acres, minimum lot size is 3 acres, and minimum lot area per dwelling unit is 3 acres, also quotes from Permitted Uses on page 28 of the Zoning Ordinanace “Table of Permitted Uses”. We are proposing 2 dwelling units on 8 acres. He suggests to the board that if they had 250’ of frontage that they would not be before the ZBA and the permit would be issued. Attorney Salomon continues his in-depth discussion on the various criteria’s, his contacts with an area Realtor, the Bosha Case Tests that are used, reasonable uses’, Supreme Court’s findings, hardship reasons, substantial justice, benefits to the applicant, benefits to the Town of Farmington and surrounding neighbors, reasonable expectations, previous (2/19/03) building permit approval, spirit and intent of the ordinance and
permitted uses. Attorney Salomon summarizes; their job to persuade the board of 5 things:
(1) Would granting the variance hurt any surrounding property values?
(2) Would granting the variance be contrary to the public interest?
(3) Is not granting the variance going to create an unnecessary hardship for WCV, Inc.?
(4) Would granting the variance do substantial justice?
(5) Is granting the variance within the spirit and intent of the ordinance?
Attorney Laura Spector comes before the board on behalf of the Town of Farmington Selectmen to oppose WCV, Inc. request for granting variance. WCV, Inc. request is based on section 3.01 of the Zoning Ordinance, which reads (see attached). She states that the Selectmen take the position that “this means immediately after you construct that 2nd house, you need to legally be able to sub-divide such lot without any relief from the Zoning Board of Adjustment”. The Selectmen’s position is that 250’ of frontage is not sufficient for the 2nd home; the frontage needed would be 500’. WCV, Inc. must show this board all 5 requirements for meeting this variance request, if it cannot show 1 of those 5, then the board should deny the variance. She
points out the failure of WCV, Inc. to meet at least 2 of those criteria’s:
(1) Spirit of the Ordinance – it is the Selectmen’s understanding that section 3.01 of the zoning ordinance was adopted to allow family members to construct 2nd homes on lots without having to undertake high expenses and time consuming meetings with various boards.
(2) WCV, Inc. proposed commercial use of this section of the ordinance is not in keeping with the spirit of that ordinance.
(3) Cumulative impact of building a 4th house on these 2 lots; what will end up having 4 houses on 2 lots with aggregate frontage of 400’.
Attorney Spector continues her discussion in greater detail regarding the zoning ordinance requirements and purposes, what actions create non-conformities and why the ordinance is written so that this does not occur, the actions of the previous Building Inspector and how at this point they are not binding, also discusses the unnecessary hardship requirement, and refers to the Simplex Technologies requirements.
Chairman Russell asks if there are any abutters to speak in favor or against this application? None in attendance. Any other comments? Randy Orvis comments on Attorney Spectors’ argument on the spirit and intent that it is flawed. In looking at the ordinance it specifically says, “duplexes and single families are allowed”. He is not sure why it is against the spirit and intent to put up a single family when it specifically says you can put a duplex in there. Randy continues his discussion and interpretations of the ordinance.
Attorney Salomon would like to make a brief rebuttal – 1st the Selectmen have suggested that granting this variance would violate the spirit of the ordinance, to make that argument they go back to past legislative history. Secondly, they characterized the use as commercial, sure he’s a builder, but the end use would be the residents that they’re talking about. The Selectmen also make an argument that granting this variance would be promoting non-conformity. They read the table as not making it any more non-conforming. Attorney Salomon references section 3.01 on future subdivision with his interpretations versus the Selectmen’s interpretations. He continues his challenge with reference to Attorney Spectors’ comments regarding the Simplex Test or the Bosha
Test and also references the “use” and “dimensional” variance possibilities, in addition to the challenge on the 2nd prong of the Bosha Test and Attorney Spectors’ interpretations of such.
Attorney Spector would like to make one last comment: There is nothing under the Bosha Test that is unique about this particular property, yes it did preexist with the requirement for 250’ or 500’ of frontage and there are many lots in town that preexisted with this requirement. The lot in itself has no uniqueness about it to permit it to have 2 houses on the 1 lot. Under Bosha, they cannot show unnecessary hardship.
Attorney Salomon has an additional comment, under the 2nd prong of the Bosha Test – feasibility; Mr. Sirowik advised Attorney Salomon that a lot is worth about $50,000.00, the cost to build 400 feet of road would be approximately $30,000.00, so ½ the value of the lot would be tied up to build the road, which in terms falls under financial burden.
Chairman Russell asks for comments for the board members.
Tom Brennan – Which lot developed 1st? Mr. Sirowik responds - all of them were built around the same time, but 13 would be the last one. Tom continues his discussion with the applicant regarding the private driveway, how many house lots where previously approved? Attorney Salomon interjects comment regarding the recorded easements on the property. Attorney Salomon states it is not a Town Road. Discussions continue between the board members, Randy Orvis, Attorney Salomon about the access to Shepherds Lane, for emergency and non-emergency vehicles, the length of the proposed road, where the road will actually be located, if the Fire Department has approved, possibility of a hammerhead turnaround. Tom questions Attorney Salomon about the condo association; Attorney Salomon explains Condo
Assoc. and Homeowners Assoc. in that development.
No other board members have questions for the applicant or their Attorney.
Chairman Russell closes the meeting to the public 8:35p.m. and advises the board members that they do not have to make a decision this evening.
Chairman Russell now opens the discussion amongst the board members, going over each of the 5 criteria points that were previously addressed.
Russell Stoakes motions to deny, he does not believe it is necessary to give the variance based on the fact that it would give them a non-conforming lot, for which they already have, but the potential for a 2nd non-conforming lot. Joanne Shomphe 2nd the motion, but wants to make a friendly addition to Russell Stoakes motion in that there is an alternative method to make an additional lot conform without the Board granting the variance, Tom Brennan thinks that it doesn’t meet the hardship criteria, Chairman Russell indicates that is what Joanne indicated.
Chairman Russell asks for any discussion on the motion, Russell Stoakes, states the motion read by Doreen is a little shaky, Chairman Russell asks Russell Stoakes to rephrase his original motion. What he is trying to say is “motion to deny because granting the variance would give the ability to have 2 non-conforming lots”. Do not meet the criteria of 3.01.
Attorney Salomon interrupts and wants it put on the record that the Selectmen’s’ council was shaking her head and sending signals. Attorney Spector apologizes.
Chairman Russell states that all the sheets are an indication that the applicant has not met all of the 5 criteria for a variance. So it is obvious that the board does not feel that they have met those criteria’s.
Russell Stoakes withdraws the motion that he has made currently. 2nd Tom Brennan.
Tom Brennan motions that the variance is denied on the hardship criteria specifically as there is other avenues that can be pursued to make 2 conforming lots should this be subdivided later on at a future date. Russell Stoakes 2nd the motion. Tom Brennan states to get it down to a single issue and make it easier.
Chairman Russell asks for any further discussions, all those in favor of the motion, all are in favor. Motion passes.
Gordon Grant motions for adjournment, Chairman Russell asks for 2nd, Tom Brennan 2nds the adjournment, all in favor, motion passes 9:05p.m.
Approved as written 01-06-2005
| 
