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ZONING BOARD OF ADJUSTMENT
THURSDAY - MARCH 24, 2005
356 Main Street – Farmington, NH
Members Present: Neil Gosselin, Jr., Russell Stoakes, John David Aylard-Alternate Seated, Donna Gorney-Alternate Seated, Joanne Shompe-Alternate Seated
Randy Orvis - Recused himself, he is working with applicant WCV, Inc.
Absent: Margaret Russell -Absent with notification;
Staff Present: Paul Esswein, Megan Taylor (for Doreen T. Hayden)
Public Present: Philip W. Serowik, WCV, Inc.
Vice Chairman Gosselin called the meeting to order at 7:07p.m, roll call and introductions were made as well as seating Joanne Shompe, Donna Gorney and John David Aylard.
Paul Esswein opens by defining the need for tonight's meeting - that is for Vice Chairman Gosselin to deliberate with the board members on their decision. The public hearing was closed at the last full meeting and it was decided that the board did not want to make a decision right then and there at the last meeting of March 3rd as the board decided they wanted time to review and absorb information, prior to decision, so it was postponed to 17th of March, which did not happen, no Chairman or Vice Chairman to hold meeting, which brings us to today March 24th, so tonight you should go through the 5 criteria's for granting a variance, discuss each criteria and then when you feel that these criteria's have been discussed in detail, then take a sense of where the board members are and develop a draft of the motions.
Vice Chairman Gosselin agrees with Paul Esswein's recommended course of action.
Paul Esswein - 1st issue - whether or not this project if approved would contribute to the diminution of surrounding property values meaning it would have the effect of reducing property values
Vice Chairman asks John David Aylard if he has a view on this - John David Aylard comments don't see it would diminish the value. Joanne Shompe - She agrees with John David Aylard. Russell Stoakes - concurs. Vice Chairman - do not see any reason that it would destroy any current values of the houses around it.
Paul Esswein - at some point the board will need to vote on these criteria but feels that each should be gone through 1 by 1, have discussion on each and then come back and vote on them.
Vice Chairman questions - each one has to be voted on? I thought each one had to be met? Paul Esswein - actually you don't have to vote on each one, you must decide at some point on each criteria to grant it or not. If you deny the criteria, then you must specify a reason for denial, that it did not meet one of these criteria's.
Paul Esswein - 2nd item - that it would not be contrary to the public interest.
Vice Chairman asks Donna Gorney. Donna Gorney - I do not think so. Russell Stoakes - I don't believe it's contrary. John David Aylard - Agrees that he doesn't believe it would be contrary in the sense that it's a house in a house area. Vice Chairman - only thing he'd like to bring up is the non-contrary to public interest - is the fact that this land is non-conforming, therefore is it in the public's interest for the board to continue to grant things that are more non-conforming. Is it in the public's interest? That's what the board is here for "the publics interest" as representation.
Paul Esswein - only non-conforming due to the frontage as it is now, you are correct that it would become more non-conforming because it does require 500' of frontage, Vice Chairman - would then be 2 lots non-conforming. There is discussion between Vice Chairman Gosselin and Paul Esswein about a 2-lot non-conforming topic where 1 being a conforming lot and 1 not.
Paul Esswein - 3rd item - Is has been pretty much agreed that this is an area variance and in order to grant an area variance, it has to be shown that the variance is needed for the proposed use given special conditions of the land, you have heard both sides of the argument. Russell Stoakes - what were the special conditions - Joanne Shompe - 1 side said there were no special conditions of the land, so therefore it would not have met that condition, the other side said that the special conditions of the land that there is 1 just like it next door, which doesn't make it special, but…… Russell Stoakes - interjects with if I remember it correctly there are 3 pieces of land there that are roughly the same in dimensions, Vice Chairman agrees that all of them are and then you have the road/driveway that splits
them all in half, discussion continues about this. Vice Chairman thinks what is trying to be said why they fall under this category, that there lot is so large this way……(pointing to map) and so short this way (pointing to map) that is why they think they need area variance and do not have the requirements to put a road through it and sub-divide, basically you have lots like this (showing) with a private driveway going through (showing) and the road (showing); because the land is 9-acres they fall into this special purpose category because they don't have what it takes to put 2 house on 1 lot. Vice Chairman asks if anyone else has input into this section of the variance. Donna Gorney - questions the other property that's just like this one and the zoning on that. Paul Esswein - comments that the previous, Building Inspector/Code Enforcement Officer made an Administrative Decision that the zoning ordinance at 3.01 allowed for 2 single family homes on 2 lot as long
as (Paul Esswein reads from 3.01). This current case is pretty much the same except, that the new BI/CEO is interpreting it differently saying that this dimensional requirement requires not only a separation of houses and setbacks but also the road frontage is required to sub-divide the properties and this particular parcel does not have the requisite road frontage. Which 2 single-family residences would require 500', this only has 200'. Previous decisions by Town of Farmington official doesn't mean it is correct, but it doesn't supersede future boards or CEO to make that same decision. Vice Chairman asks John Aylard if he has anything to add, he replies; right or wrong it seems like a lot of houses without road frontage. Donna Gorney - Doesn't meet the criteria. Joanne Shompe - I agree with Donna, I don't think it meets the criteria. Russell Stoakes-could easily argue that it doesn't meet the special conditions because it has properties next door that are pretty
close the same. Russell Stoakes - if two people standing next to one another are exactly the same is one more special than the other - Donna Gorney - good point
Paul Esswein - 4th item - 2 part review - if you granted the variance or if you denied the variance could the benefit being putting another house on that property be achieved some other way in a reasonable manner? Appellant has said it is too costly to put the road in, the Town of Farmington Attorney made the argument that a driveway would have to be put in, but it is not a sufficient reason for granting the variance. Vice Chairman questions the private the driveway as being used for frontage? Paul Esswein - not unless it is brought up to the Town of Farmington standards, that is the issue. To bring the road up to Town of Farmington standards it would be very costly. In order to create the frontage in this case you would have to build a road that meets the Town of Farmington standards. Vice Chairman
discusses with Paul Esswein some greater detail about the road and the frontage of the property. Russell Stoakes - Town of Farmington standards, what grade are we talking; Paul Esswein - 50' R. O. W., 20' travel way, 22' wide build up base with 18-20" of gravel, finer gravel on top, ditching, culverts, clearage, remove brush and those type items for site distance problems. Donna Gorney - who maintains - Paul Esswein - the people who live on the road. Vice Chairman - is it paved? Paul Esswein - no. Vice Chairman asks if there is anything to add. Joanne Shompe - thinks the road is a reasonable request to allow them to get around and get the variance. Vice Chairman - somewhat concur with that statement, by putting the road in, not only would it benefit the 1st house it would also benefit the 2nd house and by having another properly maintained access for either fire, rescue or police by having this paved would be beneficial to the Town of Farmington and
those properties, the benefit of spending the money for the road is feasible for what they want to do for both properties. Russell Stoakes - The road was $30,000.00 for the driveway - it seems expense for a 1/4 mile road, but I believe it would probably raise the property value at least by 1/2 of what thhey are going to spend on that road and would also make it immediately sub-dividable, some of the costs would go into the value of the home. Vice Chairman thinks the costs is reasonable. Donna Gorney - if they grated the road who would be responsible for the road? Paul Esswein - the homeowners, it's a private road. Vice Chairman asks couldn't they go to the Planning Board and have a town road put it? Paul Esswein - No, the only way would be for the town to accept the road through a town meeting. Vice Chairman asks it is an avenue? Paul Esswein - it is a possibility.
Paul Esswein - next criteria - by granting a variance it would do substantial justice.
Vice Chairman asks for clarification on justice for whom? Paul Esswein - mostly for the applicant. Is not granting of the variance denying him any legitimate use of his land? Denying him income? Basically use of his land. If you deny him is all use of that land denied or is there something he could still do with the land. If he couldn't do anything else with this, and if by granting the variance you allow him to do it that would be substantial justice "by allowing him the use". Vice Chairman still does not understand the question on this one - if we deny him it's not doing substantial justice, if we grant it, it is doing substantial justice. Donna Gorney - if he didn't get the variance he would be stuck with nothing to do about it or could he find other ways around it, is that what
basically it means. Paul Esswein - reads guidelines from the states board of adjustment handouts - you have to balance - by denying it what is the public benefit that you are creating against the benefit that the applicant is losing. Paul Esswein continues reading the definition and now interprets that reading - to deny the benefit you have to show the public benefit outweighs the private benefit of the development. Russell Stoakes - questions the wording substantial justice. Discussion between Paul Esswein, Vice Chairman Gosselin and Russell Stoakes on the definition of substantial justice. Vice Chairman for public reasons I don't think a dirt road is suitable for fire/rescues, for the property owner granting of the variance would do him substantial justice, by not granting we would be taking something away from him that he wants to do which does him in injustice, but in the Town of Farmington view by granting the variance to that 2nd house if there
is a problem they would have to go down that road i.e. turning around, getting down the road overall, can't get there in a timely manner to save people, Vice Chairman thinks this is a throw up question, he just wants to bring up those 2 points why it does and does not do substantial justice. John David Aylard - does meet substantial justice in the sense of 10 acres to 1 use, not everyone uses all 10 acres of their land. Donna Gorney - feels the applicant could build / upgrade road and would give the ability to sub-divide the land with no problem, it would do him justice, she doesn't think in this case they need to grant the variance because there is something he can do to sub-divide the property, by putting in the road. If we did give him the variance that would do him injustice to future homeowners. Russell Stoakes - thinks granting the variance would do substantial justice that would be the greater good. The issues with the Fire Department could be taken up
separately. Vice Chairman - by whom? Isn't now the time to decide before it becomes a problem down the road. It also doesn't do substantial justice, say that in 20+ years from now someone wants to sell their home as they might be a government employee and the facility they work for shuts down in 3 years and they decide they're going to move / relocate so that they can keep their government job, now there's a problem selling home because it's not the individuals property it's someone else's property which will cause a hardship down the road, it doesn't due justice for future owners.
Paul Esswein - 5th item - consistent that by granting the variance it would be consistent with the spirit of the ordinance, or not contrary to the spirit of the ordinance. Again, this is fairly difficult, the applicant has said that it is not contrary to the spirit of the ordinance, but it really is just allowing a use that is already allowed in that zone. The ordinance itself allows for 2 single-family residences on a single lot. Paul Esswein - If you were to grant the variance or deny the variance by saying that it was contrary to the spirit of the ordinance, how would you allow it on any other properties? Vice Chairman asks - how would I allow it to be granted on any other property? Paul Esswein - Yes. Vice Chairman - those properties will be able to be subdivided without coming before the ZBA again. Russell Stoakes - technical question on this - let's say the variance was granted, now you have a lot that does not meet the proper frontage to put the 2nd house on, does this
variance mean they would not need the proper frontage in order to subdivide? Paul Esswein - Yes. Russell Stoakes - so in theory they could create a lot with zero frontage because we've already given them a variance, the reason I ask is that the ordinance says that the lot has to be subdivideable and if this variance grants them the ability to subdivide without proper frontage then it is within the spirit of the ordinance. Vice Chairman - would say it is not within the spirit of the ordinance, it is against, does not meet the criteria of the subdivision. Russell Stoakes - it says all dimensional requirements shall be met, an by the variance we've removed that part, and sufficient distance between the principal structures to permit future subdivision, If I was to dissect this sentence "after giving the variance, you would be within the spirit". Vice Chairman - reads that differently. Russell Stoakes - "that's what sucks about English".
Vice Chairman discusses his interpretation of the statement and feels that it would be like a back door in getting around the variance requirements. Russell Stoakes interjects that he may have made a mistakes as the variance is for frontage and he looked at 3.01, he further clarifies as "is this variance consistent with the spirit and intent of the ordinance, in this case being 2.01" he asks Paul Esswein if that is correct - Paul Esswein - yes and he'll read another section from the handbook as an example to when this might be applied. Paul Esswein clarifies section 3.01 allows 2 units on a single lot, 2.01 sets the standards for AR District. Further discussion between Vice Chairman Gosselin, Russell Stoakes and Paul Esswein on the spirit of the ordinance's definition and interpretation and questioning oneself before answering "this ordinance" or "whole" ordinance, Paul Esswein - "whole" ordinance, not little pieces of the
ordinance. Vice Chairman asks for any more questions - John David Aylard - would argue that it may meet the spirit of the ordinance in the sense of "putting in the road" would meet the requirement and therefore meet the ordinance. Vice Chairman interjects that is not what they are coming in here asking for.
Paul Esswein wants to review what he's heard:
The only area that has consensus that the variance could not be granted was on the hardship, that the variance was necessary in order for the proposed use given the special conditions and that there could be other reasonable and feasible ways of achieving frontage requirements. Vice Chairman Gosselin - interjects he feels the board does not agree with number 5 also. Vice Chairman asks if they should go through each one of the arguments, Russell Stoakes - feels the arguments were sufficient and to craft a motion.
Paul Esswein you don't have to agree with them, you just have to determine that they don’t meet all of the items to get the variance. Joanne Shompe - interjects that if the board finds that they don't meet on 1 point, then you can deny on that 1 point, if everybody is in consensus on 3A and 3B that they did not meet criteria on those points the board can deny it on those 2 points. Paul Esswein - your vote will be based on that, will craft a motion, as you did make some findings on both of those items. 1st you vote on a finding and we will craft a motion for than, then you'll do a motion to deny based on the finding, I believe that is the proper procedure for doing this.
Paul Esswein - what I heard was that it is the opinion of the ZBA that the road improvements themselves would add value to the property and that would be a benefit / offset the cost. Also heard, they did not believe just because the lot is long and narrow, that doesn't create a special condition as there are other lots similar to that in this neighborhood and through out the Town of Farmington and is not a unique condition. Those would be the two findings to be made.
Vice Chairman has a problem; that they have found more than just those 2; Paul Esswein - you talked about more than that, and some of you are in agreement and some of you are not. You have enough votes on 2 additional to decide one way or the other. Russell Stoakes - 2 easy ones, clearly gave non-emotional final answers, they are not like substantial justice.
Paul Esswein - To make a finding a fact, those 2 items are the facts that you found relative to this application, because the value of the lot is increased because of the road, that it then costs to much to build the road and the other one is the shape and configuration of the lot does not create a special condition.
Vice Chairman Gosselin motions - that under unnecessary hardship - area variance - part A that because the land is long and narrow is not special and unique because there is other properties in that area and also around the Town of Farmington, article 3 B, that their benefits of putting in a proper road in would also benefit the property and would also benefit the people that own the property and is a feasible method to achieve a proper variance.
Motion: To find that road improvements necessary to meet the requirements of the ordinance would add value to the properties and offset the argument that a road would be too expensive to build and that the shape and configuration of this lot does not create a special condition that warrants granting a variance, 2nd by Russell Stoakes, all those in favor, all respond I, motion passes.
Vice Chairman would like to make a finding that under 5, it would be consistent with the spirit of the ordinance after deliberation between myself and Russell Stoakes, I'd like to make a motion of finding that this is not in the spirit of the ordinance because by granting the ordinance it would give the ability to subdivide, on a whole that is not in the spirit of the ordinance, 2nd by Russell Stoakes, all those in favor, all respond I, motion passes.
Paul Esswein wants it worded right - A motion to find that granting the variance would allow future subdivision of the lot without a requirement that all dimensional requirements be met and therefore inconsistent with the spirit of the ordinance, Vice Chairman Gosselin makes that motion, 2nd by Russell Stoakes, all those in favor, 4 in favor, 1-oppossed - John David Aylard.
Vice Chairman - would like to make a finding on part 4 - due substantial justice - I do not believe that this does substantial justice for fire/rescue to get to the property of the 2nd home, I also do not think this does substantial justice for future property owners, due to the fact; that when they decide to sell this will be on 1 lot and I do not think it does substantial justice by granting the variance as it would create a hardship to the fact the owner or the future subdivision of the property is without the proper dimensions of the lot. John David Aylard, says this is not really any different than owning a condo, you don't own the property. Vice Chairman Gosselin makes a friendly amendment to go against #2 - that it is not contrary to public interest for fire/rescue reasons - Paul Esswein - it is
contrary; granting the variance would be contrary to the public interest due to "the public interest of having fire/rescue available", Joanne Shompe, would be contrary as fire/rescue would not be able to get to it. Vice Chairman asks for a motion to clarify what he's trying to say - Russell Stoakes motions that it is contrary to public interest concerns i.e. fire/rescue access, 2nd by John David Aylard. Paul Esswein - sums up Russell Stoakes motion to - Motion to find that granting the variance would be contrary to the public interest due to limited access for emergency services, confirmed 2nd by John David Aylard, all those in favor, all respond I, motion passes.
Due to the reasons given; Vice Chairman Gosselin motions to deny the variance, based upon the findings that have been stated for 2, 3, and 5; Paul Esswein - clarifies motion as; deny the variance, based on the findings demonstration that the conditions of approval have not been satisfied, 2nd by Russell Stoakes, all those in favor, all respond I, motion passes.
Vice Chairman Gosselin motions to adjourn, 2nd by Donna Gorney, all those in favor, all respond I, motion passes. 8:25 p.m.
APPROVED AS WRITTEN 04/07/2005
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Neil Gosselin, Jr. Vice Chairman Date
Farmington Zoning Board of Adjustment
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