Jackson Board of Adjustment
Public Hearing
October 18, 2006
Case 2006-01 (Map V-9 Lot 2)
Appeal of Administrative Decision by Mary Ann and Thomas Digan regarding the property owned by Myles and Christine Crowe.
Minutes Approved - December 13, 2006
The meeting began at 7:10 p.m. with Roger Chambers, Chairman of the Board of Adjustment, reading the administrative details.
This is case 2006-01 (Map V-9, Lot 2) with the Public Hearing being held on October 18, 2006. Publication of the notice for the Public Hearing appeared in the Conway Daily Sun on Wednesday, October 4, 2006. Abutters were notified by Certified mail and Public Notices of this hearing were posted at the Town offices and the Post Office.
Tonight 8 members of the Board are present. Helene Matesky, Debra Crowther, Roger Chambers, Ted Brown and Kurt Kramp will be the 5 voting members. Dot Wood, David Urey and Lisa MacAllister, as alternate members, may ask questions at any time and take part in the deliberation, but will not vote. Susan Way is our recording secretary.
The hearing will follow our standard procedure:
* The applicant will present his case for the Administrative Appeal. During this, only the Board may interrupt to ask questions.
* Those in favor may speak.
* Those opposed may speak
* Public comments.
* Rebuttals from both sides.
* Comments
After this, the Public Hearing will be closed. The Board will try to vote and give the results on the same night but it depends on the time, whether we finish tonight. You may stay and listen while the Board deliberates to make a decision but there will be no further public input unless the Board has a question. If it gets late, the hearing may be adjourned to a later date.
Roger Chambers, Chairman of the Board of Adjustment, made the following statement: This is a hearing for an Administrative Appeal of a Selectmen’s decision to grant a building permit--not for a Zoning Variance. The Board would like to address this issue only, and not delve into past history. If anyone wishes to make a statement, please come through the Chair.
Roger presented two items on the docket. The first is the Digans’ Appeal of Administrative Decision and the second is a motion to dismiss by the Crowes’ attorney, Randall Cooper. The motion to dismiss will be discussed first.
Kurt Kramp made a motion to deny the request for dismissal since the document submitted to this Board by Randall Cooper, attorney for the Crowes, was based on the Planning Board decision and this hearing is not about what the Planning Board did a year ago. This hearing is only on the building permit issued by the Selectmen. TTed Brown seconded the motion. David Urey agreed that a number of the issues raised by the applicants, Mr. and Mrs. Digan, date back to the Planning Board decision. However, Mr. and Mrs. Digan do raise new issues with the setbacks of the garage/residence; that issue was never before the Planning Board. He agrees with the motion to deny the request by Mr. Cooper to dismiss. All voted favorably.
The meeting began with a synopsis presented by the petitioner of this case, Attorney Greg Sullivan, representing Thomas and Mary Ann Digan.
Attorney Sullivan introduced himself and the Digans who are abutters to the Crowe Property. He distributed a letter from David Douglass of Thaddeus Thorne Surveys, Inc. relating to the issuance of the building permit. He summarized his issues as follows: This letter states that the soils would only support 2.31 dwelling units. There are already 2 units that have been built. The plans submitted to the Planning Board do not support 3 units. The current zoning laws of Jackson do not allow for such a planned unit development.
Ted Brown asked for a clarification of existing buildings. There are references to a Bed and Breakfast and a Lodge. He remembers the prior owner, Ed March, had a residence and a barn. The Crowes responded that the Bed and Breakfast is the former March residence and includes the Lodge, which was the March barn. The proposed garage/residence, as shown in the building permit application, would be built on the upper east side of the lot. David Urey questioned if there were 2 deeds. In response, it was pointed out that there is only one deed for this lot. Mr. Sullivan distributed information from Avitar tax assessors for the property.
Ted Brown pointed out that the Digan application referred to the concerns that the buildings are within the setback. David Urey mentioned that it appears that the proposed building meets setbacks requirements and that the current buildings are grandfathered. He asked attorney Sullivan if he had any problems with the setbacks. Mr. Sullivan replied that he did not.
David Urey stated that the soil information submitted to the Planning Board back in January 2005 found that the property had 145% of the soil required to allow the proposed 6- bedroom house. He asked if Mr. Sullivan was proposing that the town get a third opinion on the septic system. Attorney Sullivan stated the Digans were willing to reimburse the town for a third independent soils/septic opinion. Kurt Kramp asked for clarification of the number of lots involved. Sometimes it is mentioned as one lot and at another time as two. Attorney Sullivan responded that it is recorded at the Registry of Deeds as one lot.
THOSE IN FAVOR: There were no comments.
THOSE OPPOSED:
Myles Crowe briefly tried to explain that the unit subdivision is one parcel. He stated that they have 4000 gallons septic capacity and use only slightly over half of that. Mr. Crowe feels that the soils capacity grossly exceeds the need. The issue on this lot is the number of titles that can be granted with the existing town regulations, not septic system capacity. He feels that Mr. Sullivan is confusing titles and dwelling units.
Christine Crowe stated that they currently get two bills from the Town of Jackson for taxes. Before the subdivision they received one bill; now they pay two bills.
REBUTTALS
Attorney Sullivan stated that Myles Crowe verified his point that it is one lot. Mr. Sullivan stated he was not trying to confuse anyone, but trying to simplify the issue for the Board. It is only one lot of land and this is why the Section 6 calculations are so important. Mr. Douglass of Thaddeus Thorne Survey and others he has consulted all come to the same conclusion that 2.31 dwelling units are the maximum allowed on this lot under the Jackson Zoning Ordinance. He questions Mrs. Crowe’s comment that there could be 40 bedrooms. Mr. Sullivan thinks this issue needs to be resolved by this Board. He is not convinced that the Board has been given sufficient information one way or the other to do this. With the 2.31 dwelling unit information provided by his experts at Thaddeus Thorne Survey, this
building permit should not stand.
Helene Matesky pointed out that the soils information submitted to the Planning Board took into consideration the proposed 6 bedroom house, and that the two other buildings would be remaining. The Planning Board reviewed all of this information prior to granting the approval for two exclusive use areas on the lot so the time for appealing the 2005 decision has expired.
Mary Ann Digan stated that when this was operated as a Bed and Breakfast the soil calculations were different. When it was changed to a residence, the soil calculations changed dramatically. This is where the 9 bedroom capacity came in.
Myles Crowe stated that the way the capacity was measured was first of all in gallons—4000 gallons. If you look at the residential requirements for a residence as the Bed and Breakfast was considered because there was a kitchen, because breakfast was offered.
Debbie Harmon asked about the two tax bills the Crowes currently receive. How did that happen? Christine Crowe replied that when the subdivision of the land into two exclusive use areas was approved, one bill was issued for one exclusive use area with the 2 dwellings now in existence; and one bill for the other exclusive use area.
Kurt Kramp had a question for Myles Crowe. Kurt noted that the Planning Board hearing was for a 6-bedroom house. Is this garage/residence, submitted with the building permit, at the same location? Myles stated that the reason they did this was that the Digans had made a legal threat that nothing could be done with the upper section of his property. They requested a building permit for this structure instead of the 6 bedroom house, because the building permit fees would be excessive for a building that they are not going to build. They want to get some action and the issue resolved because as this has gone on so long and two buyers have cancelled out already.
Attorney Sullivan pointed out that they just stated that they do not plan to build and this is just another subterfuge. He again asked that the Board of Adjustment defer action until the Board can obtain a certification from an independent soils engineer, of the Board’s choosing, to be paid for by his clients.
Ted Brown stated that the issue we started with, based on the Digan application, was the setback. If there is lack of land for 2 structures where do we figure setback? The building permit application has a diagonal line drawn across it with a figure of 142.50 feet and it doesn’t tell us what this line means. Myles Crowe replied that this is the boundary line for the property. There were no setbacks shown on the permit application. It was hand drawn by Christine Crowe.
COMMENTS
Myles Crowe stated that he is sorry that this has taken so much of the Board’s time and feels it certainly has taken a lot of time for them. He feels that the Digans have intended to prolong this as long as they possibly could. Now Attorney Sullivan is asking for yet another delay in getting another opinion on the soils. After that, they will probably come in with another delay. Mr. Crowe would like a decision so that they can move forward.
Mrs. Digan stated that delay has never been their intention. Attorney Sullivan pointed out that the Crowes’ concern is that they lost a buyer. The Digans concern is that whatever structure that is built, be done in accordance the Jackson Zoning Ordinances. He stated that if this Board is of the opinion that this structure is within these ordinances then they will abide by the decision.
Attorney Sullivan wants to thank the Board for its consideration.
Public hearing is closed at 8:25 pm by Chairman Chambers.
The deliberative session was called to order at 8:30 pm by Roger Chambers.
David Urey stated that he reviewed the file from the Planning Board records. This file shows that the subdivision into two exclusive use areas was granted on January 13, 2005. This was granted 19 months ago. The appeal period for that was 30 days after the decision. That appeal was never filed. He mentioned that the Digans stated that they were not properly notified of the Planning Board hearing in January 2005 and were unaware of the nature of the hearing. However, the Planning Board records show that there is a receipt for the certified letter in the file. It was signed by a Digan, though it was not clear whose first name it was. Therefore he feels the appeal of the January 2005 decision was not filed in a timely manner.
Kurt Kramp made a motion that if the appeal is denied, it would be on the condition that the Board is only voting on the building permit as it now exists as a residence/garage with no plumbing, no wiring, dirt floor and bare walls. If anything beyond this building permit is done, a new building permit is required. This would allow the Selectmen and anyone else who wants to get involved a chance to do so. Debra Crowther seconded the motion if that is how the vote goes. All voted favorably.
DELIBERATION
Roger Chambers asked if the Board should deny or approve the appeal.
Debra Crowther: deny the appeal
Helene Matesky: deny the appeal. The time to appeal was February, 2005.
Kurt Kramp: deny the appeal with the conditions applied. The Planning Board decision is not our concern.
Ted Brown: deny the appeal with Kurt’s conditions.
Roger Chambers: deny the appeal. The time to challenge the circumstances was in February of 2005.
Kurt Kramp made a motion to deny the appeal. Debra Crowther seconded the motion and the appeal was denied by a vote of 5 to 0.
At the request of Attorney Sullivan, Kurt Kramp amended the motion to state “The appeal has been denied based on the 5-0 vote with conditions . Ted Brown seconded this motion and all voted to deny the appeal as amended with conditions stated above. Those voting to deny the appeal as amended were: Ted Brown, Roger Chambers, Debbie Crowther, Kurt Kramp and Helene Matesky.
Roger Chambers declared the hearing adjourned at 8:45 pm.
OTHER BUSINESS:
Roger Chambers will be mailing out paperwork on an Equitable Waiver of Dimensional Requirements on 21 Vista Way. He has scheduled the public hearing on that case for Wednesday, November 1, 2006, at 7 pm at the Kelly Municipal Building and the appropriate notices will be done as soon as possible.
Helene Matesky mentioned that the minutes of the July 19th meeting needed to be approved. David Urey made a motion to accept the minutes as written; Roger Chambers seconded the motion and all voted favorably.
Helene Matesky distributed new manuals from the NH Office of Energy and Planning.
There being no further discussion, Kurt Kramp made a motion to adjourn the meeting; Roger Chambers seconded the motion an all voted favorably. The meeting was adjourned by Chairman Roger Chambers at 9:00 pm.
Respectfully submitted
Susan G. Way
Recording Secretary
October 21, 2006
PUBLIC COMMENTS/CHANGES – Changes in writing should be sent to Roger Chambers, Chairman, Jackson Board of Adjustment, PO Box 268, Jackson, NH 03846 within 7 days of posting, in order for consideration by the Board at the next meeting.
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