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ZBA Minutes and Decision Notice, April 29, 2009

 Jackson Board of Adjustment
PO Box 268, Jackson, NH 03846

April 29, 2009

CONTINUATION OF THE PUBLIC

HEARING FOR AN EQUITABLE WAIVER OF DIMENSIONAL REQUIREMENTS

Minutes Approved: July 15, 2009



Agenda:   Continuation of the hearing for an Equitable Waiver of Dimensional Requirements—2009-1—Pamela Landess on Property at 28 Francis Drive R18, Lots 42 and 43

Members in Attendance: Frank Benesh, Helene Matesky, Debra Crowther, Ted Brown and David Urey. The alternate attending the meeting was Paul Belluche.  Susan Way is the recording secretary. Others attending the hearing were Larry Siebert, Loraine Seibel, Pamela Landess, Martha Benesh, and Holly Lewis.

The meeting began at 7:00 PM. with Frank Benesh Chairman of the Board of Adjustment presiding. The five members present constitute a quorum and will vote. Chairman Benesh explained that tonight we will be open for any new comments and not continue to review the last meeting unless there is a request to do so. There were no requests at this time.

The hearing was called to order at 7:05 PM..
              
Helene Matesky read an e-mail received from Phil Davies, the Chairman of the Conservation Commission, prior to the last hearing. It stated “I will be unable to attend this hearing on the Pamela Landess application however we did discuss the issue at our meeting and agreed on the following statement; The Conservation Commission would like to comment to the Zoning Board of Adjustment regarding the Pamela Landess application. The River Conservation District is the key element in maintaining the Wild and Scenic designation for the Wildcat. We voted in our meeting of April 9, 2009 to encourage the ZBA to maintain the spirit and integrity of the River Conservation District.”

Chairman Benesh wanted to thank Pamela Landess for allowing the members to visit her property and allowing us to see everything we wanted to see was waiting.

Pamela Landess had a few points to go over from the last meeting. In the pack presented by her attorney, the building permit section clearly shows the measurements of the proposed deck that would be coming off the living room and the 16 x 16 porch that was proposed to come all the way up to the existing porch which is close to the river. Ms. Landess feels that during prior inspections these details were overlooked.

The proposed 16 X 16 porch is now actually 10 x 16.  This is because on Dick Bennett’s second visit he stated that in order to have the larger deck, posts and piers would have to be added. This would have made the deck closer to the river. The deck is now 10 x 16 as some of the board members found when they recently measured the area. People had questioned the angle on the side of the deck.  The angle is the result of Dick Bennett’s suggestion to cut the deck from the corner of the house to the corner of the deck diagonally to prevent any further expansion into the river area. This deck was meant to be an egress and as it is now, it is functional but not as originally proposed.

The 5 members that visited saw that the foundation and front deck is 15 feet. It was proposed to put in a second bedroom there. A tour of the area shows that the den and a second bath were reconfigured. This is not an addition that Bergeron has been claiming to have occurred on the right side of the house. At the Board of Adjustment Public Hearing on April 15, her attorney gave the Board a drawing (identified as Exhibit C) that works with the building permit on the proposal for the porch and the proposal for the 16 x 16 deck. Pamela Landess said she drew the dotted line on this plan outlining the changes suggested by Mr. Bennett from the original plan.  The floor plan of the appraisal shows an error by the appraiser. She measured the room to be 8 x 16. The actual measurement is 6 X 16 as verified by members of the Board.

Pamela had a question about abutter’s notices. She felt that an abutter that was sent a notice was not a true abutter to the one lot that the house was located on. Helene Matesky pointed out that both Lots were listed on the Building Permit so the abutter had to be legally noticed. This abutter, Gordon Wills, had stated at the prior meeting that the deck encroached in the path to the river and limited his access. It was brought up at the last meeting that there is an 8 foot public right of way along the river that is not owned by the individual property owners. Helene read the deed issued to Pamela on July 5, 2007. It states that this strip is held by  landowners of the Black Mountain Terrace subdivision. The footprint of the foundation and deck has not changed and the path still exists so Mr. Wills would not have any problem with this access. In the package submitted to the Board with the application for the waiver, there was a copy of the original deed. This states that there is an 8 foot  public right of way along the river but does not include the right to cross anyone’s property to get to this area.

Chairman Benesh asked if there were any other questions for Pamela and there were none.


Frank Benesh then asked if anyone else attending the meeting had questions.

Larry Seibert had a procedural question. He felt that there were three actions that could be taken.

1.      Not grant the wavier.
2.      Grant the waiver.
3.      Turn the matter back to the Selectmen. If this action occurs, perhaps a time frame could be established for the applicant so that this situation is not prolonged.

Chairman Benesh said he is not sure that we can direct  the Selectmen to do anything. He is in favor of waiting until the end of the deliberations to see where this ends up.

There were no further discussions. The Public Hearing was declared closed at 7:25 PM.

DELIBERATION

Chairman Benesh summarized the 3 actions that we need to consider.

1.      What was the status of the Zoning Ordinance when the permit was first applied for and granted in 2004?
2.      Consider the actions of Dick Bennett.
3.      Would the Town of Jackson or Dick Bennett have done anything differently if the correct setbacks were given? There is a question if the measurement was 78 feet from the property line or 78 feet from the river.


Helene would like to add a fourth consideration. She would like the Board to consider if  all of the changes were made within the building footprint.

Frank Benesh would like to thank David Urey for all his assistance and work done in the summary of facts he has prepared for the Board members to consider at tonight’s Public Hearing. This summary covers the proposed background of the case, the proposed findings of fact, and a proposed action to be voted on by the
Board. This information will be read by the Chairman for discussion.  

Chairman Benesh asked for comments from the members.

Paul Belluche reported that he and Ted Brown visited the site together and took measurements. He found that there were no changes in the footprint. Paul would like to see that we take the right and proper action. This building has been in existence for some time and whether the ordinances of 2004 or 2006 were considered is not a great concern to him. The applicant followed the suggestions made by Mr. Bennett.

Ted Brown was intrigued by the 8 foot public right of way and reviewed the wording that was read by Helene. There would be a different setback if this strip is taken from the edge of the river or the edge of the property line. He figured the measurements both mathematically and tried to do a horizontal reading but the terrain made this difficult. By the mathematical calculation the distance was approximately 39 feet and the other determination was approximately 54 feet.

Frank stated that in the town zoning ordinance, the setback in the river conservation district is 75 feet from the river bank. David Urey asked if Ted had any previous knowledge of an easement to cross from Francis Avenue to the river. Ted does not feet that there is. Helene stated that easements across the property as specified in the deed may not be anything that this Board can rule on and may not be an issue where this is an existing building and modifications to it and not new construction. Frank feels that this would only matter if we decide that she encroached in this area with her building. There may or may not be an issue with the paths being lost in this section.

Paul questioned the date of the zoning ordinance regarding the River Conservation District. David Urey found an amendment dated 3/10/1987 so it is felt that the original date was before this. Ted stated that this was about the time frame that the Wildcat received the Wild and Scenic designation.

David Urey is going to withhold any comments until the end of the review of his summary.

There was no further discussion and Chairman Benesh began the review of the summary. Please see the, Background, Findings of Fact and Reasons for Decisions and Action of the Board document attached for details.

Background

1.      No changes.
2.      No changes.
3.      The date of the deed to Pamela Landess—July 5, 2007—should be added.
4.      No changes.
5.      No changes.
6.      David Urey asked if there was a date on the application. Helene found that it was dated March 11, 2009. The wording of the last sentence was changed to “The Board of Appeals received her application on March 11, 2009, and scheduled a Public Hearing for April 15, 2009, at 7 PM after several conversations with the applicant and Chairman Benesh.
7.      Change to include Dick Bennett as acting building inspector and include Holly Lewis to the last line.
8.       No changes.
9.      Eliminate the first sentence. (The Chairman had received a copy of the minutes by this time.) End the first sentence after the word minutes and eliminate the rest of the wording in that sentence. Add the time that the hearing was continued by unanimous vote as 9:15 PM.

Findings of the facts:

1.      Frank asked if both of the owners signed the Building Permit. David replied that only Dale had.
2.      The words Wildcat River in parentheses should be removed and back of property put in quotes as this is from the application.
3.      No changes.
4.      No changes.
5.      No changes.
6.       David feels he misunderstood the application. He would like this to be “The application referenced a deck of 16’ X 16’ and a second existing deck of 7’ X 15-5’.
7.      No changes.
8.      No changes.
9.      No changes.
10.     At the end of the first sentence delete the word husband and change to the applicant.
11.     Change the second sentence to include the date of July 5, 2007.
12.     In the last sentence add quotes around grandfathered.
13.     David would like the date to be removed as this is the date on an amendment. He would like that sentence to end at the word Section. This was agreeable to the Board. The word grandfathered should be put in quotes.
14.     No changes.
15.     Debra feels that the change in volume is not an issue as this change to the zoning ordinance, did not take place until after 2004. At that time we were considering measurements to be two-dimensional. David said that it was clear that the Board of Selectmen did not consider volume increase as important and did not consistently consider this factor. The third sentence should stop after the word denial then continue with the fifth sentence.
16.      The wording of the fourth sentence should be changed to “Selectmen Bennett acknowledged the fact that the deck and the house fell within the River Conservation District”. The Board members (Ted and Paul) found that the horizontal measurement was approximately 39 feet. The last sentence should read “The Board finds that the Town is barred by municipal estoppels from claiming that the misstatement in the application caused any harm to the public, or violated the JZO.”  The recording was unclear as to what Dick Bennett replied at the Public Hearing on April 15, 2009. A brief discussion among the Board members felt that he did not have much support to justify denial in 2004. Chairman Benesh would like to add that the Board  finds that prior to March, 2006, the Board of Selectmen had not consistently construed Section 2.2.3  to preclude an increase in volume in a non-conforming structure in determining whether the structure was more non-conforming in any way.   
17.     No changes.  
18.      No changes.
19.     No changes.
20.     Keep first two sentences and delete the remainder.
21 through 25 were not changed.

Add
   
     26. The fact that the building permit had already expired prior to the
completion of the work has no relevance to the issues before this
Board since we find that the increases in volume of the structure
occurred prior to the expiration of the building permit in August
2005.

REASONS FOR DECISION AND ACTIONS OF THE BOARD

1.      No changes.
2.      No changes.
3.      Add to the last sentence “and that they were substantially complete prior to the expiration of the permit as stated in #26”.


Helene Matesky made a motion to accept the Background, Findings of Fact and reasons for Decision and Action of the Board as discussed. Ted Brown seconded the motion and all voted favorably.

The hearing was adjourned at 8:50 PM.

Helene outlined the timeframe of notification of the decision. Ms. Landess asked that no notification be sent to her attorney. She will supply a copy to him if he requests it but she is being charged for any additional work.
Chairman Benesh announced that there is another similar proposal that may be coming up soon for the Board. This application may not be complete in time for the regular May meeting.  He will be notifying all the members when the application is received.

Chairman Benesh will attend a Selectmen’s meeting and explain this case.

Ms. Landess thanked the Board for all their assistance.

Ted Brown made a motion to adjourn the meeting at 9:00 PM. Debra Crowther seconded the motion and all voted favorably.      

Respectfully submitted,


Susan G. Way
Recording Secretary

Any corrections or comment 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


Background, Findings of Fact, and Reasons for Decisions and Actions of the Board


IN RE:  PAMELA  LANDESS, 28 Francis Drive, Jackson, NH  [R18, Lots 42 & 43] (the “Property”)
Application for an Equitable Waiver of Dimensional Requirement [RSA 674:33-a, Jackson Zoning
Ordinance, Section 16.2.4]

Background on the Pamela Landess Case (#2009-01)
1.       Dale and Pamela Landess filed a Building Permit Application and were issued a Building Permit dated August 30, 2004 for certain modifications to their house on Francis Ave, Jackson, NH [R-18, Lots 42 & 43].

2.      At the request of the Board of Selectmen, the Town Building Inspector, Shawn Bergeron, visited the property in December, 2006 and found that the work was incomplete.

3.      The Town attempted to contact the owners in December 2006, July 2007 and July 2008 by mail with letters stating that the Building Permit had expired and that the work was incomplete.  Pamela Landess, now sole owner of the property as of July 5, 2007, did not receive notice that the Selectmen were trying to contact her until October 2008.  She immediately contacted the Board of Selectmen by phone and explained that due to an address change and divorce proceeding she had not received the Board’s previous letters.

4.      At the Oct. 10, 2008 meeting of the Board of Selectmen there was discussion that the owner(s) of the property had built within the setbacks for the River Conservation District and well outside the prior footprint of the house.

5.      Ms. Landess attended the Nov. 3, 2008 meeting of the Board of Selectmen and was told that her building was in violation of the Jackson Zoning Ordinance as enclosing the deck had increased the volume of a non-conforming building and that there were changes made to the property that violated the Permit.

6.      Ms. Landess was advised that in order to resolve the situation the offending changes needed to be removed or she needed to go to the Zoning Board of Appeals (hereafter the “Board”) and seek an Equitable Waiver of Dimensional Requirements.  The Board received her application dated Mar. 11, 2009, and, after several conversations between the Applicant and the Chairman of the Board, the Board scheduled a Public Hearing for April 15, 2009 at 7:00 p.m.

7.      Approximately twenty people attended the Public Hearing, including:  property owner, Pamela Landess; her attorney Christopher Meier; Ms. Landess’s former real estate broker for the property, Ms. Seibel;  abutters Hlebica and Wills; former Selectman and former acting Building Inspector Richard Bennett; current Building Inspector, Shawn Bergeron; current Selectman, David Mason; Larry Siebert, Holly Lewis and others.
 
8.      The meeting was called to order shortly after 7:00 p.m. on April 15 at the Jackson Town Office.  Those members of the Board of Appeals present were:  Chair, Frank Benesh; Vice Chair, Debra Crowther; Clerk, Helene Matesky; Ted Brown; and David Urey.  Alternates present were; Paul Belluche and Joan Davies.  The Public Hearing was commenced by Chairman Benesh immediately after attendance of the Board members and Alternates was taken.

9.      Attorney Meier made opening comments on behalf of his client, Ms. Landess, and distributed his STATEMENT OF FACTS IN SUPPORT OF THE APPLICATION FOR EQUITABLE WAIVER dated April 15, 2009.  Mr. Meier explained what work had been done and how that corresponded to the drawings submitted with the Application for Building Permit.  Others speaking included Ms. Landess, Richard Bennett (former Selectman/acting Building Inspector), Shawn Bergeron (current Building Inspector), Ms. Seibel (real estate broker for the Landesses at the original purchase), Mr. Hlebica (abutter), Larry Siebert, as well as other neighbors and interested parties.  At approximately 9:45 p.m. the Hearing was continued by a unanimous vote of the Board until April 29, 2009 at 7:00 p.m. at the Jackson Town Office.   Further information on what transpired at the Hearing may be had be reference to the Minutes once available and approved by the Board.


Findings of Fact of the April 15, 2009 Board of Adjustment Hearing (hereafter the “Hearing”):
1.       Applicant’s former husband, Dale Landess, filed a Building Permit Application (hereafter the “Application”) together with the applicable fee [$75.00] on the subject property on or about August 9, 2004, which included a description of the work to be performed and multiple sheets of drawings depicting the changes to be made to the existing house.   The Building Permit (hereafter the “Permit”) was approved by the Board of Selectmen [Bennett, McClave and Funicella] on August 30, 2004
.
2.      The Application stated that the setback of the house from road was 25’; setbacks from the side of the property were 40’ and 27’; and the setback from the “Back of Property” was 78’.

3.      The Application described the work as “Construct 2 x 6 wall, Insulate, Lower and Change Roof Pitch, Add 3 Season Porch To Existing Deck”.

4.      The Application estimated the cost of the construction to be $15,000.

5.      The Application specified that the house would have two bedrooms.

6.      The Application also referenced a deck of 16’ x 16’; and a second deck of 7’ x 15’– 5”.

7.      Selectman Bennett added two handwritten notes on the Application, as follows on the bottom of page 1:  “#1 You must be 75’ 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’ it will be removed at the owner’s expense.”  And on page 2 he added, “#2 This house cannot be more that a 2 bedroom at this time”.

8.      The Permit repeated both notes identified in Item 7 above, and added the following notes:  “All of the new structure to be on existing footprint.  To construct a 2 x 6 wall, insulate, lower and change roof pitch, add 3 season porch. Use:  Office space, bathroom and 3 season porch.”

9.      Applicant’s attorney, Christopher T. Meier, submitted a Statement on the night of the hearing on April 15, 2009, in which he described the modifications to the house as follows: “Included in the proposed work was: (a) enclosing a 2 level porch area on the River side (south west) of the house; (b) enclosing an entry porch on the easterly corner of the house; and (c) raising the roof on the northerly corner of the house (the ‘Modifications’)”.  Exhibit C to Mr. Meier’s Statement is a sketch which depicts the three changes, (a), (b) and (c) in plan view.  The Board adopts Mr. Meier’s statement and sketch as an accurate showing of the modifications that were made to the house pursuant to the Permit.  

10.     By mid-2005 the Board finds that the framing and enclosing of the Modifications had been substantially completed by the applicants.  Work was not complete on the overhangs, fascia, soffit, trim, siding and final roofing of the house.  Applicant submitted an appraisal dated December, 2005 that she had obtained in connection with the property settlement associated with her divorce proceedings with Mr. Landess.  The appraisal, together with numerous photographs, records in detail the status of the work as of Dec. 2005.

11.      As a result of the divorce proceeding filed between Applicant and her husband, work was suspended in mid-2005 on the Property, while the parties divided the family assets.  On July 5, 2007 Applicant became the sole owner of the Property.  Certain correspondence between the Town of Jackson and Applicant regarding the status of the Property did not reach Applicant due to an address change.  We find that once Applicant became aware of the Town notices in October, 2008, she contacted the Town immediately.

12.     In 2004, the Jackson Zoning Ordinance (hereafter the “JZO”), District Regulations, Section 4.3.1.2,  stipulated a 50’ setback from any public or Private Road right-of-way, a 25’ setback from any abutter property line, and a 50’ setback from the near bank of any year-round stream  which is a property boundary.   The Board finds that the building and structures that existed on this Property as of the effective date of Section 4.3.1.2 (Nov. 16, 1971, Mar. 8, 2005) are “Non-Conforming Structures and Buildings”, but we find that they are “grandfathered” pursuant to Section 2.2.3 of the JZO.  
 
13.     In 2004, the JZO,   Section 5: RIVER CONSERVATION DISTRICT was in effect and was applicable to this Property by reason of the Property’s boundary on the Wildcat River.   Section 5.2.3 states that where the floodplain has not been delineated or where the delineation is less than 75 feet from the nearest bank of a stream, “the River Conservation District shall be defined as that area within 75 feet of a body of water.”  Section 5.4.1 defines “Uses Permitted”, which is a compilation of permitted accessory uses, not including a use as a principal dwelling unit.  However, Section 5.4.2, Special Provisions, states that “Non-Conforming Uses, which existed on the effective date of this Section ( 3/10/1987), shall be permitted to continue as specified in this Zoning Ordinance.  See Section 2.”  The Board finds that the building and structures that existed on this Property as of that date in 1987 are “grandfathered” under the River Conservation District provisions of the JZO.  

14.     Section 2.2.3 of the JZO permits a Non-Conforming Structure or Building to be “moved, enlarged, altered, restored or replaced within the boundaries of the lot it occupied at the time this ordinance took effect, providing that the change does not make the structure more non-conforming in any way. “  This Section was amended on March 14, 2006 to prohibit, among other things, modifying a non-conforming structure or building in such a way as to increase the “volume of the structure or building within the proscribed Setback area.”
  
15.     There was testimony and discussion at the Hearing that prior to the March 14, 2006 amendment of the JZO, the Board of Selectmen construed the language of Section 2.2.3 to permit enlargement of the volume of the structure or building so long as the lateral encroachment of the structure or building into the proscribed setback did not increase.  [Examples cited were the RavenWood Curio Shoppe (Larry Siebert); and the Snowflake Inn (the Methots).]  Selectman Bennett also commented at the Hearing that there was not much support as of 2004 to deny the subject Application based on an increase in the volume of the building in the proscribed setbacks.  The Board finds that the Board of Selectmen, prior to the amendment of March 14, 2006 to the JZO, had not consistently construed Section 2.2.3 to preclude an increase in the “volume” of a non-conforming structure when determining whether a change made a structure “more non-conforming in any way.”

16.     The Application as filed contained a misstatement as to the distance between the existing house and deck, and the “Back of property”, which was stated as being “78’ “.  Selectman Bennett, the acting Building Inspector for the Board, visited the Property on several occasions after the granting of the Permit and during pendency of construction.   It appears from his testimony at the Hearing, and from the testimony of the Applicant,  that Selectman Bennett viewed the distance between the deck and the Wildcat River and was aware of the fact that the existing  deck was closer to the back of the lot and to the Wildcat River than was stated in the Application.   Selectman Bennett appears to have acknowledged the fact that the deck and house fell within the River Conservation District.  The day after the Hearing, two members of the Board [Brown and Belluche] visited the Property and measured and calculated the horizontal distance between the deck and the bank of the Wildcat River as being approximately 39 feet.  The Board finds that the Town is barred by municipal estoppels from reversing its prior approval of the Permit, and/or from claiming that the misstatement in the application caused any harm to the public, or violated the JZO.

17.      Referring again to Attorney Meier’s sketch identified as Exhibit C, we consider first the area designated as “(a)”.   It is Applicant’s position that this two-story enclosed living space on the Wildcat River side of the house was built entirely within a footprint formerly occupied by existing deck structure.  However, an appraisal of the property that Applicant obtained in December, 2005 during the divorce procedure suggests that the depth of the enclosed space (a) plus the remaining deck was 18 feet.  This would suggest that the deck formerly identified in the Application as being 16’ x 16’ had been expanded by two feet.  However, upon actual measurement by two 2-member teams of the Board on April 16, 2009, the depth of the newly added enclosed space plus the remaining deck is found to be 16 feet, not 18 feet.  Therefore, we find that the appraisal is in error as to this dimension.  The various Board members also examined the old footers and plantings under the deck in an attempt to determine whether any expansion had occurred as a result of the subject construction.  The Board finds there is no evidence that the deck was expanded in such a way as to be “more non-conforming” as interpreted under Section 2.2.3 of the JZO as of the period prior to March, 2006, when that Section was amended.

18.     Referring again to Exhibit C, we consider next the area designated as “(b)”, which involved enclosing an existing entry porch on the eastern side of the house to provide additional bedroom space.  The Board has considered testimony of the Applicant at the Hearing and during the subsequent visits by Board members, photographic evidence submitted by Applicant, and on site inspections by Board members of the space and the footers.  It is unclear from the record whether the earlier entry porch encroached on the setback from the abutter’s property line on the east.  However, the Board finds that the added living space did not expand the footprint of the prior porch area, and thus was a permitted expansion which did not make the structure or building “more non-conforming” as interpreted under Section 2.2.3 of the JZO at the relevant time.

19.     Referring again to Exhibit C, we consider next the area designated as “(c)”, which involved raising the roof on the northern corner of the house and modifying certain internal walls to reconfigure the internal space.  The Board finds that the raised roof is within the height limitation stated in the JZO [Section 4.1.3], and that no modifications were made to the footprint of the house.   Thus, the Board finds that expansion “(c)” did not make the structure or building “more non-conforming” as interpreted under Section 2.2.3 of the JZO at the relevant time.

20.     There was testimony from the abutter on the eastern side of the house, Mr. Hlebica, that the footprint of the deck had been increased, and that the overhang of the house had been increased.  However, the Board can find no support for his contentions.
  
21.     In an INTER-OFFICE MEMORANDUM from Bergeron Technical Services LLC  (hereafter “BTC”) dated 10/15/2008, authored by Andy Chalmers, and addressed to the Jackson Board of Selectmen there are nine (9) “violations” listed regarding “the property at #28 Frances Ave”.   The Board finds that the first four of the alleged violations (Items 1-4) deal with “Dimensional Requirements” that could be subject to relief under RSA 674.33-a, “Equitable Waiver of Dimensional Requirement”.   The Board further finds that Items 5-9 deal with subject matter unrelated to relief that could be granted under RSA 674.33-a.  Accordingly, this Board limits its findings of fact to Items 1-4 in the subject MEMORANDUM, and makes no findings of fact concerning Items 5-9 in said MEMORANDUM.

22.     In a letter dated Nov. 17, 2008, the Board of Selectmen advised Applicant, Ms. Landess, that “the addition is within the setbacks”, and that “Your addition is in violation of the Jackson Zoning Ordinance.”

23.     Considering all of the above findings of fact itemized above concerning the applicable setback and height requirements, pre-existing structures and building, work that was performed and the changes that were made, and the timing of the work and changes, the Board finds that there is no violation of the Jackson Zoning Ordinance.   Accordingly, the Board finds that BTC, the Town’s agent for Code Enforcement, was in error when it cited the Applicant for the violations contained in Items 1-4 of said MEMORANDUM.  The Board takes no position on Items 5-9 cited in said MEMORANDUM.  

24.     Further, the Board finds that the position stated in letter from the Board of Selectmen dated Nov. 17, 2008 to Applicant was in error when that Board cited Applicant’s addition as being “in violation” of the JZO.

25.     The Board takes no position on whether Applicant should have applied for a second building permit and paid an additional fee after she became the sole owner of the Property in July, 2007 and began the finish work on the overhangs, fascia, trim, siding, soffit and roof.
 
26.     The Board finds that the fact that the Building Permit dated Aug. 30, 2004 had expired prior to completion of the final work in 2008 has no relevance to the issues before this Board.  We find that the increases in the “volume” of the building and structure occurred prior to the expiration of the Building Permit on or about Aug. 31, 2005; and that the work done on the Property after the amendment of Section 2.2.3 of the JZO on Mar. 14, 2006 did not have the effect of “increasing the volume of the structure or building within the proscribed Setback area.”

Reasons for Decision and Action of the Board:

1.      RSA 674:33-a, Equitable Waiver of Dimensional Requirement, is applicable to provide relief in situations “When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance enacted pursuant to RSA 674:16….”  Section 16.2.4 of the Jackson Zoning Ordinance essentially provides for the same relief as RSA:674:33-a
.  
2.      The Board, having found no structure or building at the subject Property which is in violation of a physical layout or dimensional requirement imposed by the Jackson Zoning Ordinance, finds that no relief can be granted under RSA 674:33-a or under Section 16.2.4 of the JZO.
 
3.      The Board further finds that no relief is required since according to its Finding of Fact #23, relating to Items 1-4 in said MEMORANDUM, the Items are found not to be violations of the JZO; and according to Finding of Fact #24 the additions made by Applicant are found not to violate the JZO.
It was moved by Matesky, seconded by Brown,   to make the Findings of Fact Nos. 1-26 itemized above, and to make the Decisions and take the Actions in Nos. 1-3 itemized above.


Voting in Favor:   Benesh, Crowther, Matesky, Brown and Urey
Opposed:  None