ZONING BOARD OF ADJUSTMENT
THURSDAY - MARCH 3, 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
Absent: Margaret Russell -Absent with notification;
Randy Orvis - Notified via fax previous commitment
Staff Present: Paul Esswein, Doreen T. Hayden
Public Present: Hiram Watson, Helen Constantine, Charlie King, Kathy King, Terrie Nickerson-New Durham resident for Meyers, Jack Dever-Farmington CEO, Greg Michael-Wiggin & Wourte, Steven Mayo-EquiVise LLC; Mary Barron-Abutter, Butch Barron-Abutter, Frank Barbarisi, Barbara Elliott, Mark Hillsgrove, Joan Smith-Hillsgrove, George Meyer, Lorraine Meyer, Attorney Craig Salomon, Attorney Puffer, Attorney Laura Spector, Phil Swiroik (note that some attendees did not sign in)
Vice Chairman Gosselin called the meeting to order at 7:06 p.m.
OLD BUSINESS:
Review and approve the minutes of the meeting from February 3, 2005, Russell Stoakes notes that on page 3 of 6, 4th line down, the word should be sits and not sites, with that change Vice Chairman Gosselin motions to approve the minutes as written with the noted change, 2nd by Russell Stoakes, no further discussion, all those in favor, motion passes.
The minutes from the December 3, 2004 meeting cannot be reviewed and approved until such time that the board that sat for that meeting is in attendance for the review and approval of those minutes.
NEW BUSINESS:
Vice Chairman Gosselin calls a non-public session to order at 7:11 p.m. to meet with Attorney Puffer to have discussions on the hearing of WCV, Inc.
Vice Chairman Gosselin and members of the board go into another non-public session at 7:50 p.m. with Attorney Laura Spector regarding Equivise, LLC.
At 8:02 p.m. Vice Chairman Gosselin called the meeting with the public back into order.
Application by Frank Barbarisi: Appeal of an Administrative Decision; (Tax Map U13, Lot 039): In re: the 15 foot setback (Tax Map U13, Lot 038).
John David Aylard recused himself from hearing this application as he has a working relationship with the applicants partner Barbara Elliott.
Attorney Robert Herman from McNeil, Taylor, and Gallo is acting as representation for the applicant(s) Barbarisi/Elliott of 541 Chestnut Hill Road. The applicants have filed for an appeal from an administrative decision that was amended as to the decision that was made by the Code Enforcement Officer in issuance of an Occupancy Permit for a garage construction not within the setback requirements of 15' from the boundary of the common lot between clients Barbarisi/Elliot and Mark & Joan Hillsgrove. They believe the boundary line is and has been clearly set by the deed (copy provided to the board). The frontage on Chestnut Hill Road, which the deed clearly indicates, is 155.5 feet from an ancient stonewall which then goes to the Hillsgrove lot. The dispute being how far from the stonewall does the boundary
go to and further disputing the issuance of the Building Permit; they understand that the Building permit was issued back in June of 04 but on that permit it was indicated "must meet setback requirements" that permit was amended or changed as they wanted to expand the sides of the garage that was done on September 2, 2004, but again same language "must meet setback requirements". His clients were not aware that building permits were issued, after speaking with the town it was understood that a Building Permit would be issued and that the setbacks would have to be met. There were no problems until the garage was actually put up, it is a pre-fab thing, where one day you start the project and 2 days later your done, that is when the dispute of the garage was made, probably in measurement of 10 feet from the boundary. Jack Dever issued letter dated 12/21/2004 stated he visited with Mr. Hillsgrove who pointed out where his property line is and as
Mr. Hillsgrove pointed out there was no pin, it had been removed The Attorney also handed to each member a certified copy of a statement from Shirley Lobeaire (spelling?) this letter helps in the explanation of the chain link fence position; she and her deceased husband were the original owners of 543 Chestnut Hill Road (Mr. Hillsgrove’s property) she purchased from William Willey who owned both lots and the Lobeaire were told that the chain link fence is the property line. Attorney Herman comments there is a boundary dispute there. Attorney Herman states the jist of their argument is the true boundary line if fairly clear; it is the fence that is and has been there. . Attorney Herman continues his presentation in great detail defending his client, the applicant. Attorney Herman references RSA 479 boundary dispute – through a process, come to some type of agreement, or go to court. They ask that the board revoke the Certificate of
Occupancy Permit for the garage because basically it does not meet the setback requirement, and I can present other Deeds, but you have the Town records. Perhaps Mr. Hillsgrove can request a setback variance; it is 9’ or 10’ from where boundary line is. You have the affidavits and the clients deed, clearly shows the chain link fence 155.5 feet from the fixed stone wall, we would like the C. O. revoked and perhaps the proper way is for Mr. Hillsgrove to request a variance.
Vice Chairman Gosselin reviews the septic map, he also asks for questions from the board, no comments. Paul Esswein – the Town would like to respond; It is an appeal of decision made by the Town; no appeal of building permit issuance, went through inspections, Paul Esswein asks Jack Dever, C.E.O if he has any comments, Jack Dever stated he had previously advised the citizens, this issue is of civil matters any dispute between property owners is not handled by Town officials and that property line dispute should be handled through courts. Jack Dever follows-up to Paul Esswein – when someone comes to the office for a building permit application, we ask them to indicate on the plan where their property lines are, the Town of Farmington does not require a certified plot plan as a requirement to a
building permit. When a citizen shows me his property line, I have to believe the citizen is correct. Even if you call the fence the property line, you still have 20’ so there is not setback issue as the setback is 15’.
Attorney Robert Herman submits photos to the board to debate Jack Devers comments and a lengthy discussion takes place with Attorney Herman, Paul Esswein and the members of the board.
Vice Chairman Gosselin now opens the floor to the public either for or against this applicant.
Mr. Hillsgrove submits copies of his Deed which also says he should have 155’ of frontage and initial survey, showing 296’ feet of frontage to share. Initially developed by William Willey and subsequently subdivided by David Berry out of Rochester. 155’ Hillsgrove, 155.5 Barbarisi; there was not 310’ of frontage to share, only the 296’.
Charlie King – Questions one of the documents that was submitted on the survey, if it was done by licensed surveyor, or as a proposed line sketch? Reason – if decision is made certain things have certain order of precedence supersedes others as far as being correct. Randy Orvis who is not here is an expert on this matter and if the board does not feel comfortable in making a decision regarding this then certainly you can ask for outside service.
Barbara Elliott – Subdivision was done in 1975 originally. In January / February Rick Drew who is not a registered licensed surveyor, it is a proposed one. First I’ve never been told it’s a dispute by anybody, nothing official, never had a meeting with Mr. Hillsgrove, obviously I’m still paying taxes on the property “won’t take those away”. Discussion continues by Barbara Elliott.
Vice Chairman Gosselin poses questions to Mr. Hillsgrove, Mr. Hillsgrove responds, Joan Hillsgrove takes the mike and gives her input on this dispute, Barbara Elliott returns to the mike in her and Frank Barbarisi defense, Mr. Hillsgrove again returns to the mike, now turning the discussion to the storm drains that run onto his property and floods the driveway. Russell Stoakes asks, who owns the fence? Mr. Hillsgrove “funny you should ask that question” my brother-in-law put the fence up.
Attorney Herman comments on RSA 472 – would require court order, he notes the metes and bounds and hands a copy of plan, with notes.
Paul Esswein – The Town doesn’t believe the board can act upon a boundary dispute.
Vice Chairman Gosselin – closes to the public, clearly see dispute, until dispute resolved he cannot see a judgment. Discussion between the board members, Russell Stoakes motions to continue until boundary dispute settled, 2nd by Donna Gorney, Vice Chairman Gosselin – all in favor – all respond I.
Russell Stoakes questions Attorney Herman when he feels within reason that he can have this boundary dispute resolved? Attorney Herman, it could take several months, he would hope they could talk to Mr. Hillsgrove and come to some arrangement.
Friendly amendment by Vice Chairman Gosselin to move the hearing to July 7, 2005 to allow for each applicant to have their respective parcels surveyed to show true boundary lines, 2nd by Joanne Shompe, no further discussion, all those in favor, motion passes
8:55 p.m. Vice Chairman Gosselin moves for a 5 minute recess, 2nd by Russell Stoakes, no further discussion, all those in favor, motion passes.
9:00 p.m. Vice Chairman Gosselin recalls the meeting to order and reseats John David Aylard to hear the balance of the items on the agenda.
Rehearing of the WCV, Inc. request for a variance from the terms of article 3.01 of the Farmington Zoning Ordinance, to permit the construction of a 2nd dwelling unit on a lot without the required 250’ of frontage:
Paul Esswein states this matter was considered and denied by the Zoning Board of Adjustment on December 8, 2004. The applicant filed a motion for rehearing on January 6, 2005 and the ZBA considered this request for rehearing on February 3, 2005 at which time you, the board granted that request, so tonight it is a rehearing which means “brand new” “never heard before” application.
Attorney Craig Salomon representing the owner and president of WCV, Inc. Mr. Phil Swirorik,
Attorney Salomon wants to briefly describe what WCV is proposing to do and I believe that there are 3 people here that have heard this before and 2 that have not. There are several lots on Hornetown Road that were sub-divided in the 70’s; they had 200’ frontage and had about 2,000’ and WCV acquired 4 of those lots and build houses on all four lots at this point. I’ll call lot 10 – 1 house and septic approval, lot 11 – same as lot 10, lot 12 – 2 homes on it which were built pursuant to a building permit that was issued by a former building inspector who interpreted the same section that we are here for tonight, he also granted a building permit for the home on lot 13 and on that building permit for lot 13 he said that WCV could in fact apply and obtain a 2nd
building permit, based on that they went forward and got a septic approval for the 2nd house and then applied to the Town for the 2nd house from the new Building Inspector Mr. Dever who denied that permit. We understand the law “2 wrongs don’t make a right” we wanted to tell you the history of that. The other piece of the history is “procedural” which I won’t dwell on. The decision was appealed of the building inspector to this board, which was originally granted and the decision of the building inspector was overturned, to allow for a building permit, the selectmen requested a hearing on that and that rehearing you reversed yourself and that case in now pending in court, so without waiving any rights on that case, we came for a variance which was heard in December, denied, I appealed raising 4 issues:
1st reason: Didn’t properly apply the hardship standard as contained in the recent Bosha case
2nd reason: Forms that the board filled out – contained 2 miss-statements of law (a) waiving – public interest (b) hardship analysis didn’t contain Bosha formula (c) decision was unreasonable – they had burden of proof on all 5 issues. Counsel for the Selectmen also corresponded with the board and said she supported the idea of the rehearing so the record could be clearer. Now I will go through the reasons why the variance should be granted: 1) No negative impact on surrounding property value – last time we gave a letter from a realtor as no adverse effect on property owner; no diminution in value of surrounding properties 2) public interest – this is an item I raised in my appeal, one of the forms that you use said that you had to find
that granting the variance would benefit the public interest; that is not the scenery. You only have to find that granting the variance would be contrary to public interest. What they are doing is creating a second residence in a zone that allows single family residences on 3 acres. As defined in your bulk and standards and in table 2.01B. Attorney Salomon reads each requirement under the permitted AR zone, of which they must meet the setbacks of which they do not meet the front setbacks only the side, so public interest is defined as to what is permitted in the zone. Access to these homes comes in from a private road there are 5 homes being serviced by one driveway, end of the road designed for emergency vehicles, they are not asking for a use variance they are asking for a dimensional variance. 3) This point I feel is a particularly strong for WCG whether or not to grant the variance would do substantial justice – meaning has not been clearly
identified, it has balance 4) Spirit and Intent of the Ordinance – 1st consideration under 2.01B as Mr. Orvis stated the ordinance “contemplates” 2 DW/U/3acre, setbacks met and minimum lot size, but not street frontage we have 200’ prior to the adoption of the 250’ requirement, and what does section 3.01 mean, for which we have been talking about for months. 1st - located on a lot, a lot is as defined under 1.12, Attorney Salomon reads each requirement, coming to the last which they have been wrestling with “in this case all dimensional requirements should be met with sufficient distance between principal structures for future subdivision”. That sentence gives 3 things to look at 1) dimensional requirements met – prior meeting administrative appeal– yes they are there grandfathered, they are asking for relief from the frontage 2) are there sufficient distance between structures to permit future
subdivisions 3)to permit future subdivision. Attorney Salomon not outlines and details conversation had with Randy Orvis on the building of a road which would allow for future subdivision. 5) Hardship analysis – Simplex Test – 1st issue – whether or not the variance “area” is necessary to enable the applicants proposed use of the property” 2nd uniqueness only 200’ of frontage it is 2000’ deep. Financial hardship – will cost 30K to construct road ending up with a lot nearly worth 50K.
Vice Chairman Gosselin asks for questions from the floor. No responses.
Attorney Salomon yields the chair to Attorney Laura Spector who is going to argue the case for the Town of Farmington Selectmen.
Attorney Spector – WCV Inc is requesting a variance from Section 3.01 of the Zoning Ordinance 1st note that in the application of WCV, they noted that they are lacking the frontage of 250’, the Selectmen are contesting – WCV needs 500’ of frontage (relates back to 3.01 and what it states) if the lots are to be subdivided then 500’ are needed as each lot must have 250’ frontage. Attorney Spector reminds the board that to obtain a variance all 5 of the criteria must be met by the applicants, if they fail to even meet one of those criteria than the board should deny the variance. She notes that the selectmen contest that WCV cannot meet any of those criteria for a variance. Attorney Spector now goes through each of those parts of the ordinance that
Attorney Salomon previously debated and gives her interpretations of each section; Spirit and Intent, Public Interest, Diminution of Value, Unnecessary Hardship, Uniqueness, Financial Hardship.
For each of those defined reasons the Selectmen contest that the request for Variance be denied and a written submission I hand to each of you, including Attorney Salomon.
Attorney Salomon does come forward once again for a very brief moment going over; permitted uses in the AR zone, Chart 2.01, Section 3.01 says…………..Attorney Spector related to minutes from the ZORO committee, Mr. Orvis is not hear and Attorney Salomon relates some of Mr. Orvis’ comments during a ZORO meeting.
Vice Chairman Gosselin opens the floor to the public, no comments. Vice Chairman Gosselin opens the floor to the board members for questions or comments, no comment. 9:45 p.m. Vice Chairman Gosselin closes the floor to the public
John David Aylard motions to continue to the next meeting, 2nd by Russell Stoakes. John David Aylard rescinds motion, 2nd by Vice Chairman Gosselin, no further discussion, all those in favor, all respond I; Vice Chairman Gosselin motions to move this meeting to a special ZBA Meeting of March 17, 2005 at 7:00p.m., 2nd by John David Aylard, no further discussion, all those in favor, motion passes.
Paul Esswein – Continuation of a public hearing for Equivise, LLC (Tax Map R14, Lot 022): A public hearing was initially convened on January 6, 2005 and continued to February 3, 2005 due to a storm; To consider a request for a special exception as provided in Section 2.00 and Section 2.08 of the Farmington Zoning Ordinance permit development of an elderly housing in the Industrial Business District.
Paul Esswein - at the last meeting, you made the decision that you could consider age-restricted housing as a residential use not specified in the ordinance; so your task now is to determine whether it meets the criteria for a special exception in the Industrial Business District and then if you find that it does then it meets the requirements of Section 2.00.
Attorney Michael – previously met last month and discussed this in great detail, taking through a detailed explanation of the proposal of what they were trying to do and the criteria of 2.0 and 2.8 of the Special Exception criteria, at the time there were some abutter questions. Testimony was received by an equally general favor the development of the property. Last time the board had questions and wanted to look at the property in both an industrial development and as the use we present, to reserve the 1st 400’ for Industrial Use and the back side for elderly housing development. The rear is very hard to develop, in the aquifer protection zone that is why his /their proposal makes sense. Attorney Michael references the previous meeting that Mr. Mark Fugere presented his
findings in that it would provide an economic plus for the Town of approximately $420K from tax dollars and infrastructures. Attorney Michael would like to incorporate all the comments from the past meeting, he could again take you through piece by piece from the previous meeting but not tonight’s purpose to repeat what has already been said.
This is not a rehearing it is a continuation. I made the comment before and I’ll make it again, very carefully looking at the Special Exception under 2.0 to be consistent with other characteristics in the Industrial Business Zone “literally” looking at cannot comply with statement. Attorney Michael continues his discussion in greater detail outlining the benefits of having such a development located in that area, keeping in mind what they are trying to do in keeping with the character of the land, the overlays, the nature of the land, and accessory uses allowed. Attorney Michael feels his applicants request meets the Special Exception and would appreciate a very favorable view.
Vice Chairman Gosselin opens the floor to the public, no comments.
Paul Esswein, refer to section 2.08 and make a determination of the Table of Permitted Uses.
Vice Chairman Gosselin closes the floor to the public.
Russell Stoakes argues that it is consistent with the Table of permitted Uses. John David Aylard feels it is not feasible for Industrial use.
Vice Chairman Gosselin asks the members of the board how they feel. Discussion amongst the board members on their feelings of what has been presented to them.
Russell Stoakes motions that the proposal is in character to 2.08D, 2nd by Donna Gorney, all in favor, all answer I.
Paul Esswein – Standards of 2.00 paragraph A. are met; advise the board the next step in meeting those standards.
Vice Chairman Gosselin makes motion does not cause threats to properties or public, 2nd by John David Aylard, all in favor, all answer I
Russell Stoakes makes motion, no detriment value under 2.08 (3); Vice Chairman Gosselin 2nds, all in favor, all answer I.
Vice Chairman Gosselin discusses travel corridor – 600 cars in and out off Route 11, unlike a business that has set times such as 5:00p.m. impact would not be as prevalent as elderly people in and out during the day. Joanne Shompe disagrees, not rushing out all at once; end of work day, Russell Stoakes does not believe traffic impact will be that bad.
John David Aylard motions to approve #4, 2nd by Joanne Shompe. No additional impact to schools; Vice Chairman Gosselin motion to approve #5, 2nd by Russell Stoakes, all in favor, all answer I.
Vice Chairman Gosselin motions to approve # 5, 2nd Russell Stoakes, all in favor, all answer I.
Russell Stoakes motions to approve #6, 2nd by Donna Gorney, all in favor, all answer I
Paul Esswein- Authority under Section 2.00 B to impose special conditions on the Special Exception, you should discuss the special conditions 1st and then vote on granting the Special Exception.
Russell Stoakes as proposed to them the 400’ in the IB Zone wants it as in as a Special Condition, 2nd by John David Aylard, all in favor, all answer I.
Vice Chairman Gosselin – standard of how many lots under the AR Zone, minimum lot sizes for the anchorage – is this Planning Board item, per Randy Orvis’s fax dated 03/02/2005 “be adjacent to agricultural rural mix usage”.
Special Exception for age restricted housing allowing that requirement of 1 member to be of the age of 55 or older.
Russell Stoakes - Number of units to be determined by Planning Board, 2nd by Donna Gorney; Vice Chairman Gosselin – motions to request not more than 2 bedrooms, 2nd by Russell Stoakes.
Motion to approve Special Exception with conditions by John David Aylard, 2nd by Russell Stoakes, all those in favor, all answer I.
Vice Chairman Gosselin motions to adjourn 10:43 p.m., 2nd by Joanne Shompe, all those in favor, all answer I.
Meeting adjourned.
__________________________________ __________________
Neil Gosselin, Jr. Vice Chairman Date
Farmington Zoning Board Of Adjustment
APPROVED AS WRITTEN 07-07-2005
ELMER W. "BUTCH" BARRON, III, CHAIRMAN
FARMINGTON ZONING BOARD OF ADJUSTMENT
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