Board of Adjustment, Town of Jackson, NH
Minutes of Meeting Held
July 15, 2009
Minutes Approved September 2, 2009
CONTINUATION OF DELIBERATION OF AN APPEAL FROM AN ADMINISTRATIVE DECISION REQUESTED BY HOLLY LEWIS
(See Notice of Decision Published July 17, 2009)
PUBLIC HEARING ON AN APPLICATION FOR AN AREA VARIANCE REQUESTED BY LARRY GARLAND
(See Notice of Decision Published July 20, 2009)
Members in Attendance: Frank Benesh, Ted Brown, and Helene Matesky. Alternates attending the meeting were Joan Davies, Paul Belluche, Joan Aubrey and Lisa Macallister. Susan Way is the recording secretary. Others attending the meeting were Gino Funicella, Bea Davis, Bob Davis, Larry Siebert, Brian Byrne, Bobbi Meserve, Greg Buxton, Hank Benesh, Holly Lewis and Larry Garland.
The meeting began at 7:05 PM with Frank Benesh, Chairman of the Board of Adjustment, presiding. The agenda for the evening will be reviewing the minutes of the April 15th, April 29th and the June 17th Public Hearings; the continuation of deliberations for the administrative appeal for the Lewis case and the Public Hearing for an area variance requested by Larry Garland.
The minutes of the April 15th Public Hearing were reviewed. Ted Brown made a motion to accept the minutes as written; Paul Belluche seconded the motion and all voted favorably.
The minutes of the April 29th Public Hearing were reviewed. Paul Belluche made a motion to accept the minutes as written; Ted Brown seconded the motion and all voted favorably.
The minutes of the June 17th Public Hearing were reviewed. These minutes have been posted on Jackson ENEWS, at the Town Office and to members via internet. There was no discussion. Joan Davies made a motion to accept the minutes as written; Ted Brown seconded the motion and all voted favorably.
Chairman Frank Benesh mentioned that at the last Public Hearing, June 17, 2009 and at a previous hearing, the appellants arrived with lawyers and information that was new to be presented at the meetings. He noted that this can put the town or other party in a disadvantaged position, as they do not have the opportunity to consider if they should also have an representative. In addition, the Board of Adjustment and other parties do not have time to fully consider new written material presented by an attorney. The current By-laws do have an requirement that all information is to be presented at least 7 days prior to a meeting.
The Board has not enforced this for the last two Public Hearings. Frank is proposing to add wording to the By-laws requiring notification if an attorney is representing the client so that the Board, the town, abutters and other interested parties have time to react. The Board felt that this was agreeable and Frank will work on this for the next meeting.
CONTINUATION OF DELIBERATION OF AN APPEAL FROM AN ADMINISTRATIVE DECISION—2009-02—Holly Lewis Property , 191 Tin Mine Road, MapV-08 Lot 30.
Chairman Benesh opened the meeting by stating that this is a deliberative session only as the Board held the Public Hearing on this case on June 17, 2009. Originally scheduled for June 25, this was rescheduled to July 15 at the request of the applicant. There will not be any public testimony because the Public Hearing for this case was closed on June 17, when the Board began deliberations. Voting members for this case will be Frank Benesh, Ted Brown, and Helene Matesky and alternates Joan Davies and Lisa MacAllister.
The Chairman distributed a 5-page document that he had prepared for this meeting, outlining the background and issues raised; findings of the facts and a proposed decision to be discussed and voted on. He summarized the case by first stating that one of Holly Lewis’ principal contentions was on the ability of the Selectmen to enforce the plumbing and electrical code when considering requirements for a building permit.
Frank Benesh reported that he did inquire (as suggested by Lewis’s counsel at the hearing) of the opinion of the town counsel and counsel to the Board of Selectmen. Town Counsel strongly contested Lewis’ position that they do have the authority to consider building, plumbing, and electrical codes in building permit actions. Further, one of the Selectmen advised Benesh that the Board of Selectmen adopted building permits in the 1950’s before the state RSA’s were in effect. RSA 674:51 states that the town’s regulations are in effect unless it conflicts with the state building code or is repealed by the municipality.
He felt that the issue of whether the town has adopted an enforcement mechanism, as argued by Lewis, was outside the jurisdiction of the Board of Adjustment as described in the Zoning Ordinance. He argued that there were only two questions to consider: did the Selectman, in considering the renewal of the building permit, have the authority to request more information from Lewis regarding what had actually been built and what was to be built that was not reflected in the original permit application and did the Selectman have the authority to request a plan for remedying what plumbing code violations may exist and seek information about compliance with the electrical code.
Chairman Benesh then reported that Ms. Lewis attempted to gave him a letter (described by Lewis as having to do with a home inspection arranged by her) at the beginning of the meeting tonight. Benesh did not accept or read this letter as he felt it is too late to present evidence and because Lewis had had the opportunity to present evidence at the hearing last month which is now closed. Accepting new evidence at this point would disadvantage the Board of Selectman who would be unable to respond. Moreover, Board of Adjustment By-laws require, that information must be submitted 7 days prior to a meeting in order to be considered by the Board. Ted Brown agreed and pointed out that the original Public Hearing was June 17, 2009. In addition, he stated that the Board was prepared to continue deliberations on June 25, but
postponed that meeting at the request of the applicant. He felt that the applicant has had sufficient time to present her information to the Board. Helene Matesky, Clerk, pointed out that the By-laws have the 7- day submission requirement so that the Board of Adjustment, the Selectmen, the abutters and all interested parties can review all documents in the public file prior to the Board of Adjustment voting on a case.
Ted Brown made a motion that the letter not be accepted; Lisa MacAllister seconded the motion and all voted favorably.
Paul Belluche stated he feels that Holly must get a new building permit with current information. She has not met the Selectmen’s request for the three items needed. The Selectmen have a duty to reject a permit until all the conditions are met.
Ted Brown and Paul Belluche visited the property after the last Public Hearing. They noticed that the work has been in progress for 4 years and feel that it might take another 4 years to finish. They were impressed with Ms. Lewis’ work, but felt that a time limit should be placed on this project and some sort of monitoring system.
Lisa MacAllister worries that this might set up a precedent if the building is allowed to continue with no inspections as there may be safety issues if the owner decides to sell it.
Paul Belluche says the problem needs to be resolved. Ted Brown feels that it would have been helpful if the town had an arbitrator who could have assisted before the case came to the Board of Adjustment.
Helene Matesky said that in fairness to the Holly, she wanted to point out that the process was confusing and upsetting to her. Questions and issues were raised in letters that turned out not to be germane or relevant, but the Board of Selectmen and the Building Inspector corrected and clarified these misunderstandings as soon as they were discovered.
Frank Benesh gave the members a few minutes to review the findings of facts and proposed decision. He asked for further discussion and changes. There were none.
A motion was made and seconded to adopt the findings of facts and decision as outlined in the document prepared by Chairman Frank Benesh. All voted in favor with none opposed.
Ted Brown made a motion to deny the appeal from an administrative decision based on the findings of fact and items A-C of the decision; Joan Davies seconded the motion with all voting in the affirmative and none opposed. Those voting to deny the appeal were: Frank Benesh, Ted Brown, Joan Davies, Lisa MacAllister and Helene Matesky.
A. The Board of Adjustment finds that the Zoning Ordinance plainly gives the authority to the Board of Selectmen to request additional information of an applicant, both prior to the original issuance of a building permit and upon any extension (see 2.1 and 2.2) and given the finding of the fact that the applicant has constructed additional living space not in the original application, the Board of Selectmen have every right, in fact the duty, to seek a revised application with revised floor plans that truly show what has been built and what will be constructed and consider how the revisions comply with the Zoning Ordinance and other applicable ordinances, laws, and/or regulations, including ISDS Administrative rules. The applicant's assertion that the Board of Selectmen cannot request anything
other than first and second floor plans is at odds with the language of the Zoning Ordinance; moreover, it is uncertain whether the lower level referred to by the applicant as a basement is in fact the basement and not the first floor without the requested information and additional inspection.
B. The issue raised by the applicant that the Board of Selectmen have no authority to enforce certain codes (see 3.3) is a matter of law and thus outside the jurisdiction of the Board of Adjustment ( 3.7). The applicant’s contention to the otherwise can be argued in the appropriate venue. Notwithstanding this assertion, the Board of Adjustment believes that RSA 676:13 ( 3.6) also confers the duty on the Board of Selectmen not to issue a permit which will not comply with the Plumbing and Electrical Codes.
C. The Board of Adjustment finds that there is evidence that the application was and likely still is in violation of the Plumbing Code and possibly the Electrical Code. Accordingly the Board of Selectmen have a right, in fact the duty, to seek a revised application that includes a plan for resolving the Plumbing Code violations and identifies and plans for resolving any Electrical Code violations that may exist.
The Board thanked Frank for all the work that he has done to present the case.
PUBLIC HEARING FOR AN AREA VARIANCE—2009-03—GARLAND; Map R-12, Lot 106 at 143 Ridge Road
At 7:45 Chairman Benesh then opened the Public Hearing for an Area Variance requested by Larry Garland.
The applicant is requesting an Area Variance regarding changes to non-conforming structures, Section 2.2.3 of the Jackson Zoning Ordinance, in order to replace an entrance shed and increase the pitch of the roof on that shed for safety reasons.
Those members voting on this case will be Frank Benesh, Ted Brown, and Helene Matesky and alternates Lisa MacAllister and Paul Belluche.
Helene Matesky, explained that the hearing was noticed in the June 24, 2009 edition of the Conway Daily Sun, posted at the Town Office and included in the Jackson ENEWS. All the abutters were notified and return receipts have been received. There was a letter from abutter Allan Stam, approving the proposed change. There were no letters in opposition.
Frank Benesh explained that the hearing will follow our standard procedure:
1. The applicant will present the case for the appeal. 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.
Larry Garland represented himself. He brought in plans and some photos of his property. He asked for introductions of the members and all were introduced.
Mr. Garland purchased this property in 2003. In 2005, he received a building permit to raise the roof of the main structure and replace the shed on the side. There was a question at the time about the shed being in the setback but this was settled and the building plans as submitted were approved. At the time of the renovation of the house, he could not finish replacing the shed on the side because of financial constraints. At the time he purchased the property this area was designated as a possible second bedroom but it is too small.
Mr. Garland now plans to replace the shed entrance on the existing footprint but to change the roof pitch from 1:12 to 8:12, so he can use this space as a laundry room and mudroom when finished. He reapplied for a building permit to do this repair and was denied by the Board of Selectmen who cited setback issues, as the increase in roof pitch will cause an increase in the volume of the structure within the setback. At the present time the flat roof is causing snow to back up and leak inside and accumulate in the electrical ceiling fixture creating a safety issue.
Benesh asked if anyone wished to speak on this matter. There were no comments from those in the audience. The Public Hearing portion of the meeting was adjourned at 8:05 PM.
Benesh reviewed the criteria and began the deliberations on the issues of the case. He asked for any further questions and clarifications from Board members. Helene Matesky mentioned that the proposed changes to the current shed would improve the overall property. She also noted that we had written testimony from a direct abutter that the value of the surrounding property would not be diminished, but rather improved.
Frank questioned the hardship criterion for an area variance but felt that literal enforcement of the ordinance would result in unnecessary hardship given the applicant’s proposed use of the property. Ted Brown felt that the flat roof represented a maintenance hardship and resulted in safety issues that present a hazard for the owner. Joan Davies felt that new construction would be much safer than a rocky foundation and the roof leaking into electrical wiring.
There was no further deliberation.
Ted Brown made a motion to accept the application and grant the area variance. Paul Belluche seconded the motion and all voted favorably. Those voting to grant the area variance were Frank Benesh, Ted Brown, Paul Belluche, Lisa MacAllister and Helene Matesky. There were none opposed.
Helene Matesky will write up a decision and give it to the selectmen so Mr. Garland can reapply for a building permit.
There was no further business. Ted Brown made a motion to adjourn the meeting. Joan Davies seconded the motion and all voted favorably. Chairman Benesh adjourned this meeting at 8:15 PM.
Respectfully submitted -
Susan G. Way,
Recording Secretary
A complete text of the By-Laws and other Board of Adjustment information can be found on jacksonvillage.net under Boards and Commissions.
NOTICE OF DECISION
BOARD OF ADJUSTMENT, TOWN OF JACKSON, NH
Lewis - Case 2009 - 02
You are hereby notified that the Appeal From An Administrative Decision requested by Holly Lewis regarding her property at Map V08 - Lot 30 has been denied. Those voting for denial of the appeal are: Frank Benesh, Ted Brown, Joan Davies, Lisa MacAllister and Helene Matesky.
The reasons and facts supporting the denial are listed below in the document which was voted on and approved at the July 15, 2009 Board of Adjustment deliberation on the case.
Frank Benesh, Chairman
Board of Adjustment
July 15, 2009
Note: The Selectmen, any party to the action or any person directly affected has a right to appeal this decision. See New Hampshire Revised Statutes Annotated, Chapter 677, available at the Jackson Town Office. This notice has been placed on file and made available for public inspection in the records of the Board of Adjustment on July 17, 2009. Copies of this notice have been distributed to the applicant, Planning Board, Board of Selectmen, the Jackson Town Office, and Jackson ENEWS, and placed in the applicant’s property file.
Town of Jackson Board of Adjustment
Appeal of Holly Lewis of Administrative Decision
Summary of Issues, Findings of Fact, and Decision in re Holly Lewis
July 15, 2009
Background and Issues Raised
1. General
1.1. A building permit was first issued to Holly Lewis on July 11, 2005 for construction of a two bedroom 2,914 sq ft (and 1052 sq ft basement) house on a 1.77 acre (77,196 sq. ft.) parcel at 191 Tin Mine Road (map V8 parcel 30). The application stated a valuation of $170,000 which was adjusted by the town to $261,000 by the Board of Selectman on or about July 5, 2005. At that time, the original $500.00 fee accompanying the application was subsequently supplemented by a $227.50 fee for this adjustment. The permit was for construction on a non-conforming lot, which effectively limited any home to two bedrooms, due to soil types pursuant to the Jackson Zoning Ordinance. The construction approval for the ISDS for a 2 bedroom (300 gal per day) is #CA2005072511 dated June 6, 2005. The lot was
conveyed to Holly Lewis on February 24, 2005 and recorded on March 3, 2005 at book 2394, page 459-460.
1.2. The permit expired July 2, 2008 after two extensions or reissues. A request for extension was not immediately resolved as the Board of Selectman found that (a) there was no record of prior inspections since the original permit was issued and (b) there were questions about valuation of the work. A subsequent inspection by the Building Inspector on or about December 1, 2008 identified numerous plumbing code violations, possible electrical code issues, and the construction of living space in a finished walkout basement that was not described in the original building permit application. The question was also raised of whether the plumbing and electrical work was done by the owner or a licensed plumber and electrician. Additional correspondence and meetings (1)
cumulated with a February 26, 2009 request by the Building Inspector, in connection with the pending request for an extension of the building permit, for the applicant to engage a New Hampshire licensed master plumber to identify and develop a plan to correct plumbing deficiencies, a request for the applicant to schedule a meeting between the Building Inspector, the State Electrical Inspector, and the applicant’s electrician, and a request for a revised application that reflects accurate floor plans and a value that truly represents what has been in built and remains to be built.
1.3. On April 27, 2009, the Board of Selectman made a final decision denying the continuation of the building permit (letter of 4/30/2009) for failure to provide information requested on February 26, 2009, viz., (a) a list of plumbing code deficiencies and a plan for corrections to be approved by the building inspector prior to work being done; (b) a scheduled date for a meeting with the building inspector and the owner’s electrician; and (c) an updated building permit application that accurately depicts the interior floor configurations, as constructed, of all floors including the basement or lowest level.
1.4. An Appeal of an Administrative Decision was made by the applicant in May 2009 to the Jackson Board of Adjustment contesting the denial of the permit and a Hearing held on 6/17/2009.
1.5. There has been no evidence or testimony submitted that indicates that the applicant has provided any of the information requested by the Building Inspector on 2/26/2009 and referenced in the Board of Selectman decision of 4/27/2009.
(1) Discussed at December 2008 BOS meeting; 12/12/2008 letter; 1/12/2009 BOS meeting; 1/26/2009 BOS meeting; 2/2/2009 letter from Building Inspector, 2/5/2009 letter from the applicant, 2/9/2009 BOS meeting with applicant; 2/23/2009 letter from the applicant; 1/8/2009 letter from applicant; 1/8/2009 letter from the Town; 1/10/2009 letter from applicant; 2/23/2009 BOS meeting with the applicant; 2/26/2009 letter from the Building Inspector cite above;
2. Building Permit Requirements and Issues
2.1. The Jackson Zoning Ordinance requires a building permit “on a form provided by the Town, and shall furnish all requested information, and be accompanied by a permit fee” (15.2.2) (emphasis added)
2.2. Pursuant the Jackson Zoning Ordinance, the Board of Selectman issue building permits for periods of one year. The building permit application specifies that “Permitted work must be competed in one year from date of issuance.”
2.3. Notwithstanding the terms “renewal or extension”, Selectman Mason testified that the Board of Selectman employ the same criteria for extending or reissuing an expired permit as when first issuing a building permit.
2.4. The original building permit application included (as requested in the application) first and second floor plans and makes no reference to finished living space in the basement.
2.5. In reference to the basement, the minutes of a July 2005 Board of Selectman meeting records Holly Lewis, in response to a question about the 5 bathrooms indicated on the building permit, stating that “one bathroom is in the future in the basement and the other one was going to be in a garage being built at this time”. The applicant subsequently retracted this statement at the 6/17/2009 Board of Adjustment Hearing.
2.6. The 2006 International Building Code defines “Basement” as “That portion of a building that is partly or completely below grade plane”. Grade Plane is defined as “A reference plane representing the average of finished ground level adjoining the building at exterior walls. Where the finished ground level slopes away from the exterior walls, the reference plane shall be established by the lowest points within the area between the building and the lot line or, where the lot line is more than 6 feet (1829 mm) from the building, between the building and a point 6 feet (1829 mm) from the building.”
The story referred to by the applicant as the basement is very clearly above grade in the front and quite possibly above grade at the side walls and at least some portion of the rear wall. The story referred to by the applicant as the basement has a full size windows on both sides and the front and a full size double glass patio door in the center of the front elevation. Without closer inspection, it is uncertain if the story referred to by the applicant as a basement meets the IRC definition of a basement or is in fact the first story. (note definition has changed in 2009 edition and different definitions in the International Residential Code.)
2.7. The $270,000 valuation represents a $92 per square foot cost when considering the 2914 sq ft first and second floors. This valuation equates to a $68 per sq. ft. cost if one includes the basement space, 3966 sq. ft. Given the unrealistically low $68 figure, one may infer that the town, in accepting the $270,000 valuation on the work, was not aware that the basement was to be finished living space.
2.8. The applicant asserts that the town has no ability to inquire about any living space in the basement as the building permit application only required plans for the 1st and 2nd floor of any house.
2.9. The Board of Selectmen assert they have the ability to question and seek additional information to reach a decision on a permit application or extension, especially in reference to where the applicant’s actual building may vary from the original permitted work. These changes could cause noncompliance with multiple sections of the Zoning Ordinance, Individual Sewage Disposal System Administrative Rules, and the State Fire Code, in addition to the Building, Plumbing, and Electrical Codes.
2.10. If indeed the applicant has built more living space than was shown in the original application, the applicant may be in violation of the Jackson Zoning Ordinance which limits any residential building on a non-conforming lot to 2 bedrooms and has specific requirements about accessory apartments.
2.11. In addition to the Zoning Ordinance cited at ¶2.10, Env-Wq 1003.14 requires amended plans for an ISDS “if bathroom fixtures are added to the basement level of a residence after the approved ISDS has been installed and approved for operation” as well as Env-Wq 1004.16 requires compliance with Env-Wq 1004.18 (Application Requirements for Expansion of Existing Use, Including Conversion to Full Time Occupancy) prior to the owner modifying the use of any structure in a way that would result in any increase in the load on the ISDS, such as converting a room in a residence to an additional bedroom.
2.12. The original building permit and ISDS specifies two bedrooms. Correspondence between the Board of Selectman, the Building Inspector, and the Applicant has raised the question if the 1 and 2nd floors of the home, as constructed, may have 3 bedrooms (exclusive of what may have been constructed in the basement). The original building permit application, as approved by the Board of Selectman, clearly shows a master bedroom suite on the first floor and, on the second floor, two rooms, each with a connected full bath.
3. Plumbing and Electrical Issues
3.1. The applicant offered to correct all violations of plumbing and electrical codes (letter of 1/23/2009) , and subsequently stated 13 days later (by letter at 2/5/2009 and in the 6/17/2009 Board of Adjustment Hearing) that all plumbing and electrical changes requested by the building inspector have been corrected without enumerating them or providing any further documentation or information of the changes made. Moreover, the town’s original request on this matter was for the applicant to develop a plan of correction which was to be reviewed and approved by the building inspector. The applicant has apparently ignored that request
.
3.2. The building inspector testified at the 6/17/09 hearing that he believes there continue to be substantial plumbing code violations. The applicant stated, when posed at the 6/17/2009 Board of Adjustment Hearing, that she did not know if she was in compliance with the Plumbing Code.
3.3. The applicant asserts that Board of Selectmen have no authority to enforce the International Residential Code, Electrical Code or Plumbing Code as the Town has not adopted an enforcement mechanism.
3.4. The Board of Selectman and their Counsel assert they have such enforcement authority. One Selectman indicated that the enforcement process was adopted prior to the effective date of RSA 674:51. The ultimate sentence of RSA 674:51 states “Any local enforcement mechanism adopted prior to the effective date of this paragraph shall remain in effect unless it conflicts with the state building code or is amended or repealed by the municipality.”
3.5. At the 6/17/09 Board of Adjustment hearing attended by all three Selectman, Selectmen Mason further stated that they were liable if they knowingly failed to enforce laws and regulations.
3.6. RSA 676:13 states that “The Building Inspector shall not issue any building or occupancy permit for any proposed construction, remodeling, or maintenance which will not comply with any or all zoning ordinances, building codes, or planning board regulations which are in effect. (emphasis added)
3.7. According to the Jackson Zoning Ordinance, the Board of Adjustment is authorized to “hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Selectmen or the Building Inspector in enforcement of this Ordinance”.
3.8. The Building Inspector has stated (letter of 2/26/09) that the plumbing and electrical issues will be judged by the codes in effect at the time of the issuance of the original building permit.
Findings of Fact
The Jackson Board of Adjustment finds the following:
1) The treatment of the renewal or extension of a building permit by the Board of Selectman is, in effect, the permitting of the future work to be done based on the original or revised plans and this practice is consistent with the intent and spirit of the Zoning Ordinance. We do not specifically address in this finding the circumstances in which and the extent that the future work must comply with the Zoning Ordinance at the time of the renewal as opposed to the original application. Certainly there are circumstances, where there is a change in scope of a project, that the project or the relevant portion thereof must comply with the current Zoning Ordinance. For example, the Accessory Apartment section was added to Zoning Ordinance subsequent to the issuance of the original permit.
Since (see below) the original building permit did not include an Accessory Apartment, the applicant cannot change the scope of the work to include an Accessory Apartment and assert that it be judged under the Zoning Ordinance in effect in 2005.
2) Based on the lack of any information on the original building permit suggesting finished living space in the basement and the contemporaneous Board of Selectman minutes of June 2005 where the applicant described the basement bathroom as a “future” addition, the Board of Adjustment finds that the original building permit application as approved by the town did not contemplate living space in a finished basement or lower level. This finding is further supported by the $92 sq ft valuation the Board of Selectman agreed to in 2005 if only the first two floors are considered and the unreasonably low $68 /sq ft valuation that results if one includes the basement or lower level.
3) Based on (a) above and testimony of building inspector and the applicants filing, the Board of Adjustment finds that the applicant has constructed additional living space in the basement or lower level that was not contemplated in the original building permit.
Decision
A. The Board of Adjustment finds that the Zoning Ordinance plainly gives the authority to the Board of Selectman to request additional information of an applicant, both prior to the original issuance of a building permit and upon any extension (see ¶2.1. and 2.2) and given the finding of fact (see ¶3) that the applicant has constructed additional living space not in the original application, the Board of Selectman have every right, in fact the duty, to seek a revised application with revised floor plans that truly show what has been built and what will be constructed and consider how the revisions comply with the Zoning Ordinance and other applicable ordinances, laws, and/or regulations, including compliance with ISDS Administrative Rules. The applicant’s assertion that the Board of
Selectman cannot request anything other than first and second floor plans is at odds with the language of the Zoning Ordinance; moreover, it is uncertain whether the lower level referred to the applicant as a basement is in fact the basement and not the first floor (see ¶2.6) without the requested information and additional inspection.
B. The issue raised by the applicant that the Board of Selectman have no authority to enforce certain codes (see ¶3.3) is a matter of law and thus outside the jurisdiction of this Board of Adjustment (see ¶3.7). The applicant’s contention to the otherwise can be argued in the appropriate venue. Notwithstanding this assertion, the Board of Adjustment believes that RSA 676:13 (¶3.6) also confers the duty on the Board of Selectman not to issue a permit which will not comply with the Plumbing and Electrical Codes
C. The Board of Adjustment finds that there is evidence that the applicant was and likely still is in violation of the Plumbing Code and possibly the Electrical Code. Accordingly the Board of Selectman have a right, in fact the duty, to seek a revised application that includes a plan for resolving the Plumbing Code violations and identifies and plans for resolving any Electrical Code violations that may exist.
It was moved and seconded to make the Findings of Fact Nos. 1-3 itemized above, and to make the Decisions and take the Actions in Nos. A-C itemized above.
Those voting in favor: Frank Benesh, Ted Brown, Joan Davies, Lisa MacAllister and Helene Matesky
Opposed: none
Dated: July 15, 2009
Notice of Decision
Board of Adjustment, Town of Jackson, NH
Request of Larry Garland for an Area Variance - Case 2009 - 03
July 15, 2009
You are hereby notified that the request by Larry Garland for area variance from Section 2.2.3 of the Jackson Zoning Ordinance regarding his property at Map R12, Lot 106, has been granted.
The request was granted on July 15, 2009 by an affirmative vote of Frank Benesh, Ted Brown, Paul Belluche, Lisa MacAllister and Helene Matesky. There were no votes opposed.
The Board has determined that the applicant meets all the criteria for an area variance. The Board heard testimony and concurs that changing the roof pitch from 1:12 to 8:12 on his existing one-story entrance is necessary in order to correct structural defects that present an unsafe condition; thus an area variance is needed to enable the applicant’s proposed use of the property and the benefits sought cannot be achieved by some other method reasonably feasible for the applicant to pursue. It is also noted that the Board has received testimony from the direct abutter that the value of the surrounding property will not be diminished.
Specifically, the Board determined that, (a) the value of surrounding property will not be diminished, (b) the variance is not contrary to the public interest, (c) special conditions exist such that the literal enforcement of the ordinance results in unnecessary hardship, (d) substantial justice is done, and (e) the variance is consistent with the spirit of the zoning ordinance.
Frank Benesh, Chairman
Board of Adjustment
Jackson, NH
July 15, 2009
The Selectmen, any party to the action or any person directly affected has a right to appeal this decision. See New Hampshire Revised Statutes Annotated, Chapter 677, available at the Jackson Town Office. This notice has been placed on file and made available for public inspection in the records of the Board of Adjustment on July 20, 2009. Copies of this notice have been distributed to the applicant, Planning Board, Board of Selectman, Jackson ENEWS, the Town Office and have been placed in the applicant’s property file.
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