Jackson Board of Adjustment
April 15, 2009
HEARING FOR AN EQUITABLE WAIVER OF DIMENSIONAL REQUIREMENTS
Minutes Approved July 15, 2009
Members in Attendance: Frank Benesh, Helene Matesky, Debra Crowther, Ted Brown and David Urey. Alternates attending the meeting were Joan Davies and Paul Belluche. Susan Way is the recording secretary. Others attending the meeting were David Mason, Shawn Bergeron, Larry Siebert, Attorney Chris Meier, Lorraine Seibel, Pamela Sherry-Landess, Janet Wills, Gordon Wills, Richard Bennett, Roger Chambers, David Hlebica, Hank Benesh, Martha Benesh, and Holly Lewis.
The meeting began at 7:05 PM. with Frank Benesh Chairman of the Board of Adjustment presiding. The five members present constitute a quorum and will vote.
Agenda: Hearing for an Equitable Waiver of Dimensional Requirements—2009-1—Pamela Landess on Property at 28 Francis Drive, R18, Lots 42 and 43.
HEARING FOR AN EQUITABLE WAIVER OF DIMENSIONAL REQUIREMENTS—2009-1—Landess
The hearing will follow our standard procedure:
1. The applicant will present the case for the waiver. During this time only the board may interrupt to ask questions.
2. Those in favor may speak.
3. Those opposed may speak.
4. Public comments
5. Rebuttals from both sides
6. 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 and deliberations 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
Helene Matesky, Clerk for the Board of Adjustment, stated that the abutters were notified by certified mail. This information was supplied by the owner and Helene found a few errors in those abutters that needed to be noticed. She sent notices to Hlebica, Lenane, Blaney, Massuco, and Wills. The Almquist property was eliminated. We received cards back from all the noticed abutters. The Public Hearing notice was published in the Conway Daily Sun and posted on E-news and at the Town Office.
Frank Benesh, Chairman of the Board of Adjustment, made the following statement: This is a hearing for an equitable waiver for dimensional requirements. To grant this request there has to be four findings: (summarized): (a)The violation was not noticed or discovered until the structure was substantially completed; (b) the violation was not an outcome of ignorance of the law or failure to inquire or misrepresentation or bad faith but a result of a a good faith error by the owner or its agents or by an error in ordinance interpretation; (c) that the violation does not constitute a public or private nuisance or adversely affect future uses of property in the area, and (d) the cost of correction so far outweighs any public benefit that it
The selectmen had written Ms. Landess on October 21, 2008, that her structure was in violation of several zoning ordinances—Section 5 of the River Conservation District, 4.3.1.2 regarding setbacks and Section 2 regarding non-conforming uses, building and structures. There was a memo sent to the Selectmen on October 8, 2008 regarding setbacks and volume increase. Substantial work had already been done by the time the owner was informed of these violations.
The following timeline was presented from information provided by the applicant.
Building Permit was issued to Dale and Pamela Landess—8/03/04.
Spring 2005 - 90% of the work was completed by the ex-husband.
(Dale Landess)
Mid-Spring 2005 - Order to stop construction during divorce proceedings.
2007 - Pamela Landess became sole owner, Deed changed.
Pamela unaware of town notices because of address change.
Received first notice in October 2008 – contacted town immediately.
Cost to return property to original state as requested by town--$70,000 to
$80,000 with a total cost of $110,000,
The building permit of August 30, 2004, was signed by the Selectmen. There was a note on the permit that stated “You must be 75 feet from the high water mark, measured horizontally with any pier, foundation, deck wall or other part of the structure. If it is shown to be less than 75 feet, it will be removed at the owner’s expense.” The building permit states that all of the new structure is to be in the existing footprint. To construct a 2 X 6 wall, insulate, lower and change roof pitch and add 3-season porch. Use: office space, bathroom and 3-season porch at R-18-42 and 43.
Chairman Benesh asked Pamela Landess to speak. Ms. Landess was represented by Attorney Chris Meier of Cooper, Cargill and Chant. Attorney Meier has just been recently asked to represent Ms. Landess and was not present at the time of the issuance of the building permit. He has supplied an outline to the Board members. He contends that there is no waiver needed. All of the construction was done in compliance with the wording of the zoning ordinances at the time that the building permit was issued and in good faith by his client’s ex-husband. There was no attempt to violate the zoning ordinances.
Attorney Meier feels the applicant is entitled to an equitable waiver. Essentially you don’t have to get to the fact whether there is a violation or whether a municipal official acting as the building inspector at this point made a mistake in granting the building permit.
There are three modifications that have occurred on this property. This property was a non-conforming structure in 2004 when the building permit was issued. The wording in the ordinance was changed in 2006. Originally there were 2 open porches attached to the building. These were enclosed to create rooms. The roofline was elevated over one porch to enlarge the master bedroom. This work was not completed until 2007 after the divorce settlement but within the original footprint and at a cost of $9,000t as estimated on the permit.
Frank Benesh had a question about the drawings and notes supplied by Ms. Landess. She explained that one drawing had a note that she had hand-written while the drawing that was supplied by the Bergeron firm did not. There were handwritten notes on some of the exhibits but the drawings and plans were not altered. Helene mentioned that most of the exhibits did not have dates and it was very difficult to tell which plans may be new and which were original. Attorney Meier stated that Exhibit C is out of order but the others are chronological. These plans were copies made from drawings by the client and those supplied by Mr. Bergeron’s office.
Ted Brown asked if there was a site plan. He did not find one in the exhibits. Frank says that there was one with the original permit. Ted has visited the property and noted that the front deck appears to be new. The applicant says that a narrower deck was added after the other deck was removed and a portion of it enclosed. The footprint is the same as the original plan. Helene also questioned this additional deck on the drawing and Ms. Landess explained that it was a replacement of a portion of the old deck. Frank asked if this deck is any closer to the river and it was stated that it is not.
Ted Brown noted that the Wildcat River is a Wild and Scenic River way and is protected by Federal regulations and if there is a violation it may be out of the jurisdiction of the Zoning Board. Attorney Meier could not comment on Federal Law without further research.
Joan Davies asked Mr. Meier if he had seen the house and he replied that he had not—only photographs. She also inquired if the comment he made about the back of the house applied to the river side and he affirmed that this is correct.
Exhibit G shows the appraisal that was done as part of the divorce proceedings. This appraisal shows that most of the construction was done by 2005 when the Building Permit expired. There was only finish work to be completed and that was completed in 2007.
Chairman Benesh asked if there were more questions from the Board and there were none.
The current building inspector, Shawn Bergeron, of Bergeron Technical Services was not involved in 2006 when the ordinance was changed. He mentioned that there have been comments tonight about non-conforming use. This is a non-conforming structure. The use as a residence is permissible. The construction has now expanded a non-conforming structure by adding volume. Most of the violations are entirely within the River Conservation District. Shawn can’t tell when the volume increases occurred.
Ted Brown asked how Shawn became involved in this. Shawn was asked by the selectmen to look over the situation after a complaint about building being done without a permit. Shawn has visited 3 times and sent letters that did not get to Pamela Landess because of her address change.
Chairman Benesh asked for any comments in favor of this waiver.
Larry Siebert became interested after attending a recent Conservation Commission meeting. He obtained permission from the landowner to inspect the area. He feels that the Town Inspector has been criminally trespassing on this property as he has continued to visit without the permission of Ms. Landess. He measured 49 feet from the set back to the deck. The cement work is old with some new patches on it. Frank Benesh asked if he was acting for the Conservation Committee and Mr. Siebert said that he was only there to view the property and found that most of the structure is within the setbacks.
Holly Lewis wants to know if definitions have been changed when the codes were updated. Shawn says he does not have information to answer this. Ms. Lewis wanted to quote the International Residential Code and Mr. Bergeron pointed out that the town of Jackson has not accepted these codes.
Roger Chambers asked when the original structure was built. Pamela replied that she thought it was built around 1970.
Loretta Seibel, the original realtor, sold the property to the Landesses in 2004. It was in need of considerable repair. She said it was originally built as a one-room fishing camp in the early 1950”s. Some renovations were done by a previous owner.
Paul Belluche asked who did the building inspection on this property in 2004. Dale Landess had recused himself and Dick Bennett was appointed by the selectmen. Dick Bennett said that Dale was replaced within a month. Frank asked if there were more questions for Dick.
David Urey asked why the selectmen signed the permit Dick Bennett replied that there was a house there at that time. There was a note added to the permit that mentioned not building any closer to the river. The only area outside the original footprint was the cantilevered rear deck.
Frank Benesh asked if the new deck was closer to the river. David Hlebica, an abutter, says that it is approximately 10 feet closer. Shawn Bergeron was unable to speak to this issue.
Paul Belluche commented that the new deck on the rear does not resemble the original. Pamela replied that the old deck was removed with the construction of the enclosed area and a new deck has replaced the old one within the original footprint. Dick Bennett replied that there were two decks 10 x 16 feet and feels that this is approximately what we are dealing with.
Paul Belluche was interested in Dick Bennett’s thinking at the time. Dick felt that putting in the reminder that the owners not expand would be sufficient. He felt that there was a possibility to increase the volume of non-conformity. Ted Brown said that it is not unusual to add such comments on a building permit.
Pamela was asked when the permitting was started. She replied that the application was made before the August 8, 2004 closing on the property. She did have an appraisal done on December 28, 2005 as part of the divorce proceedings that showed considerable work had been done as outlined in the permit. All work had to be stopped after this time until the divorce was settled.
Shawn Bergeron suggested the possibility that the Board members make arrangements with Ms. Landess to view the property. There is a possibility that the Federal government might have documentation on this property. All property along the river has an 8 foot section that does not belong to anybody. Ms. Landess says that she accesses the river from a neighbor’s property as the drop-off behind her house is too steep.
Holly Lewis feels that the benefit of the building is that it is of better construction and safer than it was thus increasing its value.
Chairman Benesh feels we can’t make any decision tonight. There is a lot of material to review and points to consider. He would like to continue this discussion at another meeting.
David Urey made a motion to continue this hearing on April 29, 2009, at 7 PM at the Town Office Building. The motion was seconded by Debra Crowther and all voted favorably.
Gordon Wills, an abutter, has a comment on the new deck. Mr. Wills says that it encroaches on the path to the river that was always used.
Frank Benesh asked Pamela Landess for permission for Board members to come visit the site. Ms. Landess agreed that she will be there until Sunday and gave members her phone number to make arrangements. She would like to be present for insurance reasons.
David Urey asked Loretta Seibel if deck size was mentioned in the real estate listings and she replied that outside measurements were not considered.
The hearing was closed at 9:15 PM to be reopened at 7 PM on April 29, 2009. Anyone interested in the rest of the meeting is free to stay.
Chris Meier wanted to know if there is more evidence to be presented.
Frank Benesh stated that we would be considering measurements and any other information that comes up. He anticipates a brief hearing.
DELIBERATIONS
Frank Benesh mentioned that the application states that there is a 75 foot setback that is inaccurate.
Ted Brown still sees no site plan in the paper work. The 8 foot right-of-way is a surprise to him. Helene says that it is stated in the copy of the deed supplied by Ms. Landess.
Frank Benesh wants to know how to view the 2004 zoning ordinances and wonders if there is a mistake in the 2004 application. In granting the permit did the town make an error?
Helene Matesky stated that Dick Bennett was aware the building was within the setbacks but took no action.
Frank Benesh wondered if Dick Bennett was acting on not the volume but on the footprint. Some felt that this was his decision.
Ted Brown viewed the volume issue from a layman’s point. It is one side times the other side which is area but when height is added you get volume.
Frank Benesh is going to visit the site and get measurements. He will also do research to see if any legal issues have to be addressed.
David Urey wants to determine when there was substantial completion.
David Urey would like the vote to be divided in 3 parts.
Frank Benesh would like members to e-mail him with any questions and discussions.
Frank Benesh made a motion to adjourn the meeting at 9:50 PM. Debra Crowther seconded the motion and all voted favorably.
Respectfully submitted
Susan G. Way,
Recording Secretary
Any corrections or comments on these minutes should be submitted in writing to Frank Benesh, Chairman, Board of Adjustment, PO Box 268, Jackson, NH 03846
A complete text of the By-Laws and other Board of Adjustment (ZBA) information can be found on jacksonvillage.net under Boards and Commissions.
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