Board of Adjustment Dec 16, 2009
Jackson Board of Adjustment
PUBLIC HEARING FOR AN APPLICATION FOR AN AREA VARIANCE
December 16, 2009
MINUTES APPROVED January 6m 2010
Members in Attendance: Frank Benesh, Debra Crowther, Helene Matesky, David Urey and Ted Brown. Alternatives attending the meeting were Joan Davies, Paul Belluche and Joan Aubrey. Martha D. Tobin is the Acting Recording Secretary. Selectman Gino Funicella, Jackson Treasurer Warren Schomaker, Bobbi Meserve, Jerry Dougherty II, Larry Siebert, Barbara Balfour and Holly Lewis also attended the hearing.
Approve the Minutes of October 21, 2009: Helene Matesky, seconded by Paul Belluche Alternate, made a motion to approve the Minutes of October 21, 2009 as written. The motion passed unanimously.
PUBLIC HEARING FOR AN APPLICATION FOR Larry and Marjorie Siebert
The hearing began at 7:01 p.m. with Frank Benesh, Chairman of the Board of Adjustment, presiding. The members voting tonight are Frank Benesh, Debra Crowther, Helene Matesky, David Urey and Ted Brown.
This property is located on Map V09, Lot 30 at 60 Main Street. The applicant is requesting a Variance from Section 4.3.1.2 of the Jackson Zoning Ordinance regarding the display fence which is within the setback.
Chairman Frank Benesh explained that the Hearing will follow the Board’s standard procedure:
The applicant will present the case for the appeal. During this time only the Board may interrupt to ask questions.
Abutters or persons with an interest in the application in favor may speak.
Abutters or persons with an interest in the application 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 tonight but it depends on the time and deliberations whether we reach a decision tonight. Alternates and members of the public 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 noted the Hearing was noticed in the Conway Daily Sun, posted at the Town Office and included in the E-News and town website. All the abutters were notified. Burt Day is the only abutter who hasn’t responded. Chairman Benesh received a letter from the owners of the Thorn Hill Inn indicating their support. Larry Siebert noted that Don Bilger from the Inn at Jackson told Larry he submitted a letter today; in fact Larry believes two letters were submitted. Chairman Benesh took a moment to check his mailbox and found there was nothing in his box.
Larry Siebert noted his application is straight-forward but he failed to include the relationship between his property and the town of Jackson. Larry bought the property in 1991; the property is a thirty-foot by one-hundred foot rectangle. This makes the property unique as there are no other properties like this in the Village; it is also unique because there is a building only two feet off his property line and there is thirty feet of solid wall. When Larry bought the property, the Town approached him about the Town’s septic system that was under his property. Larry allowed the Town to dig out the old system and put in a new tank; the Town’s septic is this property’s septic as well. He and the Town have been in a close relationship for years. It’s a tiny piece of property and there
is no room to meet the twenty-five foot setback on the property; there is no way to put a conforming building on the property.
It wasn’t Larry’s idea to remove his things from the wall this year. Originally the property was Larry’s home and it was transferred to a joint ownership with his wife in 1998. They have been operating it as a shop since 2000 and at that time he asked if he could paint the wall of the Fire Department building and the Selectmen gave him permission to do this. He covered the costs of this on his own. In 2001 or 2002 Larry paid for the paint and Ed Dubie painted the top portion while Larry painted bottom. Larry noted that while he had to remove things from the wall when it was painted, he has had items displayed on the wall since 2000. There have been a number of things along the wall – trellises, statues, shutters and the Town has always allowed this.
Chairman Benesh asked if the Fire Department acquiesced or did they give permission. Larry noted that Ed Dubie was the Fire Chief at the time and he said it was fine with him. Ted Brown wondered if Ed was the Fire Chief during this timeframe and Vice-Chairman Debra Crowther believes Andy was the Fire Chief at that time. The Board sees a problem in that Larry went to Ed Dubie and Arthur Fernald who were town employees. Larry noted that then Selectmen Frank DeFrusio and Dee McClave came on Larry’s property a number of times and didn’t have any issues. Larry noted he has changed his displays and the décor many times and that display area was established approximately nine years ago.
Chairman Benesh asked if there was, at any time, a securely attached fence as is currently the issue. Larry noted he had a fence made out of old shutters that he screwed into the wall. The only reason Larry built the fence this year, was because there was water leaking into the Fire Department building. The Town asked if they could come onto his property in order to put in drainage to mitigate the water that was going into the Fire Department’s building. It took Larry two days to remove items from the wall. The Town dug down five feet and wide enough to be well over Larry’s property line. Larry asked Fire Chief Jay Henry if he could put in the posts since the Town had dug down so far and so far over onto Larry’s property. Both Fire Chief Henry and then Road Agent Rob Hatch helped Larry
put in the posts and those posts are on Larry’s property.
Chairman Benesh noted that Larry calls it a “fence” but it looks like it is twenty-five to thirty feet tall. Larry noted the tallest board he bought was fourteen feet. It was pointed out that this is not a free-standing fence; it has supports attached to the Fire Department’s wall. Larry noted he designed this fence in his head; he didn’t draw it out or have it engineered, he just built it. Once he got the fence built he didn’t think it would hurt to have some more support. Since Larry did this with both Fire Chief Henry and Road Agent Hatch’s assistance, Larry thought he was doing the right thing. Larry also noted that this fence was constructed in the spring and was complete by Memorial Day so the Board can be sure it was done in May of 2009 while the first concern was
brought to Larry’s attention in July. Helene Matesky asked if anyone approached Fire Chief Henry or Road Agent Hatch regarding problems with what Larry was doing; Larry didn’t hear of any concerns. David Urey noted that Larry stated his tallest board was fourteen feet but this is set up a couple of feet off the ground so it stands about sixteen feet tall and there are half a dozen connections to the Fire Department wall.
Larry noted that at the June 18, 2009 Selectmen’s meeting he was asked about the connections to the Fire Department wall. Chairman Benesh asked how this came to the Selectmen. Larry noted that Selectman Mason talked with Chairman Funicella and Chairman Funicella asked Larry how it got attached. The discussion at that meeting was that as long as the Fire Chief didn’t have any issues it was okay with the Selectmen; no one mentioned the need for a permit. Larry received a letter from the Selectmen dated July 20, 2009 stating that Larry’s fence needed a foundation as it was over six feet tall. The letter says that both State and Jackson Zoning Ordinances were violated.
At the August 20, 2009 Selectmen’s meeting (the Minutes are not online so he can’t provide a copy) Larry believes the offer was made by Chairman Funicella that the Selectmen would write up an agreement for Larry to keep the fence and that he would remove the fence when he sells the property. Selectman Mason said that wouldn’t happen and he would write up a Permissive Use Agreement. Larry noted the issue of it being a structure was never addressed and he felt that if he signed the Permissive Use Agreement he would lose all his rights; the Town could take it all down. Larry submitted a permit application and Jackson Building Inspector Jack Dever denied it. Larry was then told he had to go to ZBA and would have to submit a design for a foundation. Helene Matesky asked Larry for an explanation of
the foundation issue. Larry noted that the poles are currently buried in stone five feet deep. John Pietkowitcz, a local builder, drew up plans for a foundation but rather than try to pour cement, stone was used; the Fire Department needed this to be in stone due to the drainage issue. Larry doesn’t want to bring forward a $2,000 plan for a foundation until he gets a decision from the ZBA.
Chairman Benesh asked Larry if, as far as he knew, no one is asking for the fence to be disconnected, which Larry affirmed; just that it needs a foundation. The International Building Code (IBC) requires this and the Selectmen stated they understood why just looking at the IBC wouldn’t make it clear that this fence needed a foundation. David Urey noted that at sixteen feet this is a structure, not a fence. Larry pointed out that he has an eight foot fence on the other side of this property that doesn’t have a foundation and that isn’t an issue. The IBC does say that anything six feet or shorter doesn’t require a foundation but the IBC doesn’t say if it’s over six feet it becomes a structure. David believes this is a structure and that Larry needs a variance for a structure
within the setback; one can put a fence on one’s property line; this isn’t a fence. The definition in the IBC of a structure is “that which is built or constructed”.
Larry is asking for permission to keep the fence and he will guarantee that when he leaves that property that fence won’t be there; he’ll put that in writing. Larry changes his yard displays every year; he won’t leave the fence. He had already planned to build a wall along his property as there are two dead trees. Larry isn’t asking for anything he didn’t already have; he has had twenty to thirty-five feet of display area on the wall for nine years. He hasn’t done anything deceptive. The Town shares Larry’s property line and the Town has always let Larry display items on that wall.
Helene Matesky feels that Larry is asking to replace something that was already there; not putting up something new. He removed his display items from the wall at the Town’s request. David noted that Larry was alluding to the same thing but David disagrees. If your next door neighbor says “You can hang something on my wall” that’s one thing; building a fourteen foot structure that’s on your own land within the twenty-five foot setback is totally different. Helene noted if this was a storage shed with a roof and walls then clearly it would be a structure; she just can’t think of this as a structure since it’s a fence. Chairman Benesh noted that the members are getting into discussion that is for deliberation; he did note that the Planning Board’s book, in the
driveway regulations, refers to private driveways “including a structure like culverts”…. Additionally, in 1980 the court defined the Town & Country (T&C) Motor Inn’s “sign” as a structure.
David noted that Larry is within the Village District and the description of that District states that no building, structure, porch can be built within the twenty–five foot setback. Chairman Benesh noted it would be of interest to have testimony that this is not a structure. Larry noted he is saying this is a unique structure as it is just a fence; it has no walls, it has no floors.
Chairman Benesh asked if this should be considered a sign and Larry stated, “Absolutely not; does it say Ravenwood anywhere?” Chairman Benesh noted it doesn’t have to say Ravenwood to be considered a sign. Larry noted that if this fence is a sign then anything on Flossie’s porch would be considered as a sign. This doesn’t face the road; it is not a sign, it doesn’t face out. Chairman Benesh clarified he is not suggesting that this is a sign. Larry reiterated he is not trying to be deceptive; he tried to help the Town out with its drainage issue. This gave him an opportunity to put in a fence and take the stuff off the Fire Department’s wall. Chairman Benesh noted the “fence” or “structure” has not been in existence for more than ten
years. Larry noted he has had his items displayed on a tall wall for ten years. The display area is a big show for Ravenwood’s product; if they can’t have their product out then that could spell their business going under. There is $5,000 in product up there on display and they sell it four times over during the summer so in essence the ZBA would be removing $20,000 of product from display. David noted that Larry could have a six-foot high fence along his property line and he would be allowed to attach display items on that fence. David would like to know if Larry can say that his business will fail by cutting this down to six feet. Larry noted his display and the fence won’t look as good as what is currently there. He was told by Jack Dever that he could take a chainsaw to the fence, cut it to six-feet and this would be over. Larry noted that the first comment from the Selectmen was at the June 18th meeting and Selectman
Mason said it was okay; two months later it wasn’t okay. David Urey noted that the fence had already been builder so,it’s not like the Selectmen said it was okay and then Larry built it and then the Selectmen said it wasn’t okay. David would like to ask Gino Funicella how extensive the Selectmen’s “okay” was.
Chairman Benesh would like to hone in on the uniqueness of the property. Helene asked if, during discussions with Fire Chief Henry and Road Agent Hatch, Larry had gotten any idea there was a problem with what he was building. Larry explained, “The three of us did this together, if they thought there was a problem they wouldn’t have helped me!” Larry noted he has offered to put in fake stone along the Fire Department wall to make it look better. Helene stated, “So, you thought it was okay until you got the letter in July?” to which Larry noted it had been a real surprise two months later to get a letter telling him what he’d built was a structure and that he needed a permit.
Paul Belluche asked what would happen if this situation got to the point that Larry had to bury it all in concrete, what would happen to the drainage pipes that were put in? Larry noted he could take the fence down, put in concrete and really screw up the Fire Department. The plan he’s made keeps the drainage system intact and working properly.
Chairman Benesh goes back to the uniqueness of the property; the Zoning Ordinance doesn’t permit a structure within the twenty-five foot setback. What’s special about this property? Larry noted that this fence doesn’t impact his neighbor; they don’t see it. If he’d put it along the other sideline it would impact his neighbor on that side. The only thing on the Fire Department’s wall is a small window and Larry put a window in the fence so they didn’t lose that light; there is also the electrical box and Larry put in a door so the Town can open the door to access the electrical box. The Fire Department’s wall has to be near thirty-five feet in height and is unattractive ; that’s why Larry asked to paint it. That wall is ten feet away from Larry’s
house. There is not another piece of property like that in town and the other uniqueness is that the Town utilizes his property.
Chairman Benesh noted that Larry needs to sign his application, which he did.
David Urey would like to know if the Board is agreed that what Larry is asking for is a twenty-four foot variance for the twenty-five foot setback for structures. Larry noted David is going back to the word “structure”. From Larry’s side of the property line there is a thirty foot wall that is thirty inches off his property; he’s not asking for anything he didn’t already have, he’s not asking to build a building. It was agreed that “technically” Larry is asking for twenty-four foot variance on the setback. Larry noted that had he known this was going to be the result, he wouldn’t have gotten himself into this; if the fence were six feet tall he could be two inches off the property line and there wouldn’t be any issues.
Paul asked who drove by and saw that the fence was a problem? Larry noted the letter from the Selectmen (July 20) says that Shawn Bergeron saw it. Larry wants to know why it was such a length of time before Shawn saw it; it isn’t hidden but Larry wonders if maybe someone asked Shawn to look at it.
Chairman Benesh asked for comments from those who are abutters or with a direct interest wishing to speak in favor of Larry’s application.
Holly Lewis noted she is not an abutter but has an interest; she was asked what her interest is. She believes it is advantageous for the town to have this business in the Village. Chairman Benesh asked Holly what her direct interest is; Jerry Dougherty II asked for a definition of “direct interest”. In order to be considered someone who has a direct interest he/she must be someone who is an abutter or is directly affected.
Chairman Benesh asked for comments from those who are abutters or with a direct interest wishing to speak against Larry’s application.
Selectman Gino Funicella (Chairman of the Board of Selectmen) noted that the Selectmen are unanimously opposed to this application and are requesting the permit. Selectman Funicella remembers Selectman Mason’s comment and admitted, at some point, maybe someone did ask the Building Inspector (Shawn Bergeron) to look at it, but he also noted that it is the Selectmen’s duty to investigate any building that isn’t properly permitted. Larry built this by talking to two Town employees, one of whom no longer works for the Town. That may have been the way it was done in the past but now Jackson has a process that is to come and get a permit and have an inspection. The Selectmen have to uphold the law and this is a structure and being at least fourteen feet high it needs to be engineered. If Mr. Siebert
were to remove the supports he attached to the Fire Department wall, it is likely the structure would come down with a big wind. Ignorance of the law is no excuse. Selectman Funicella did suggest at a Board of Selectmen meeting that maybe the Selectmen could give Larry a letter permitting the fence and that the use would expire when he sold the property. He admits this probably wasn’t a good thing to do. What if something falls off the fourteen foot structure but the Town said it was okay? We could have the same problem anywhere else in town; maybe where the Wildcat Tavern is; someone could put up a fourteen foot fence at the house right next to the Tavern. What Larry has built should either be built properly or cut down in size. This sort of thing has happened in the past. On Melloon Road, one Selectman said that when the property was sold the building was to come down. Now, years later, that building hasn’t come down and
there’s another building on the property. The other Selectmen agree this structure on the Siebert property needs to have a permit, engineering and an inspection.
David Urey noted he is hearing two different things. He wants to know, if Larry gets all the engineering that is being asked for, are the Selectmen in favor of his building this; do the Selectmen have an opinion on having this structure built a foot off the line; twenty-four feet off the twenty-five foot setback requirement? Selectman Funicella thinks it sets a precedent. David stated, “So, it’s not just the engineering it’s the precedent”, which Selectman Funicella affirmed. Helene wanted to clarify that setting a precedent may not be an issue as the ZBA’s manual states each case is based on the uniqueness of the property. There is an understanding that in order to get a variance there have to be unique issues that preclude setting a precedent. David disagrees; someone will come in
and say, “You let Larry do it”. Helene noted then the ZBA would look at each case separately although she understands there may be concern that everyone will want to do the same thing if this application is approved. Joan Davies agrees it is appropriate to raise the question. Selectmen Funicella reminded all of the problems that the Town had with the Snow Flake Inn. The Selectmen’s position is that the way this is built is against the code. Chairman Benesh asked if this is Selectman Funicella’s opinion or if it’s the Selectmen’s decision that this shouldn’t be allowed? Selectman Funicella noted it is the Selectmen’s unanimous opinion that this shouldn’t be allowed within the setback. There have been two different Inspectors who have looked at it and said it’s not built right. Jack Dever’s report lists issues with structural support and that it is within the setback. Additionally, there was no building permit application prior to the fence being built. David asked if
Selectman Funicella could give the Board any more insight into what Selectman Mason meant when he said, at the Selectmen’s June meeting, he thought it was okay. Larry noted he has the video tapes if the ZBA feels they are needed. Selectman Funicella can’t say for sure but he thinks Selectman Mason was trying to be fair. No motion was made regarding this being okay. Selectmen Funicella did move to give permission for this structure to remain and that permission would expire with the sale of the property but he was outvoted two-to-one.
Paul Belluche noted there a difference between Commercial and Residential Districts with respect to displays. David Urey noted this property is in the Village District and it calls for a twenty-five foot setback. Paul noted this is a unique property in that it can’t conform to the twenty-five foot setback; Chairman Benesh noted that’s what this Board has to come to a decision on. Selectman Funicella is concerned that if the ZBA approves the variance this will be a permanent fixture. Chairman Benesh noted the ZBA can put conditions on any decision it comes to. After completing his comments, Selectman Funicella left the meeting at 8:07 p.m.
Chairman Benesh opened the floor to anyone wishing to speak in favor of this application.
Jerry Dougherty II is in favor of the application even though he doesn’t understand what the application actually is at this point. The Board is looking for differences without distinctions. The fact that the Town uses the property when it’s to its benefit (drainage/septic) tells Jerry the Town views this property in a singular nature, too. If what Larry is doing is helping his business without interfering with the Fire Department then he doesn’t see the problem. There’s no harm to the Town, the Fire Department or to passers-by. Regarding the Town and & Country’s sign; the lawyers saw fit to call it a structure in order to allow it to stay but any layperson sees it as a sign. When the Town &Country got that sign defined as a structure, they did it to keep it and
lawyers were behind that. The Board needs to look at the singular nature of the property and to the harm that is done or not done to the Town. Chairman Benesh noted that the Zoning Ordinance speaks to buildings and structures; buildings are for habitation while structures are anything else built by man. The State Supreme Court made the determination regarding the Town & Country sign, not lawyers. There are five tests that the ZBA has to believe Larry has demonstrated; the burden of proof is on him. Jerry noted the fact that Larry qualifies for the variance is what makes his property unique.
Holly Lewis asked if it would make a difference if it were described as a display since that’s what it is being used for. The property is unique as it has shared property; it is unique to have the Town’s septic on this property; it is unique to have Larry’s items displayed on the Fire Department’s wall. He was displaying up to the top of that wall, which has to be around thirty-five feet and Larry’s brought that display down to fourteen to sixteen feet.
There were no comments against the application. Chairman Benesh noted Larry now has the opportunity to rebut any information presented. Larry is not sure Selectman Funicella represents a unanimous decision from the Selectmen.
Chairman Benesh wants to make sure that, to the extent that the Town has gone on Larry’s land, for the record, it was with Larry’s permission, the Town didn’t just go on it. Larry reiterated this is what the uniqueness of this property is; Arthur Fernald would always ask for permission to open Larry’s gate to work on the vents in the wall. The relationship (between Larry and the Town) has been wonderful up until this past year and a half. It’s a shame; Larry feels he has done anything he could to help out the Town. The actual drainage ditch is on Larry’s property and he doesn’t care. The Town also gave him a load of gravel which he tried to pay for but the Town insisted he take it at no cost.
Chairman Benesh summarized the case. There has been little testimony that suggests this is not a structure and a structure has to be set back twenty-five feet. There are five tests and the ones the Board will focus on is to what extent there are special conditions and that the property is unique. He is not concerned with meeting the other criteria. The other thing that the Board should discuss would be if this could qualify for an Equitable Waiver? Chairman Benesh noted that in order to be considered for an Equitable Waiver the Board would have to allow Larry to adjust his application. It was noted that would not be the case; tonight’s meeting was noticed as an application for a variance not for the granting of an Equitable Waiver. The Board would have to send out new notices. It was also noted one way to
qualify for an Equitable Waiver is, if the fence or structure had been in place for ten years with no one objecting or that the structure was put up by Larry relying on statements from the Selectmen. The Selectmen’s statements happened after-the-fact; Larry built it then the Selectmen made their statements. Those are the big areas for deliberation.
Helene would like to hear comments from the Alternates before the Public Hearing is closed and they have to leave the table. Joan Davies and Joan Aubrey had none at this point. Paul Belluche agrees with Larry that it (his display area) has been there for a long time and now it becomes a problem.
As there were no other comments or questions, Chairman Benesh closed the Public Hearing at 8:19 p.m.
Chairman Benesh asked the Board to begin deliberation on each condition on the application for a variance. David Urey noted the language on the five criteria is from March ’08 and there is new language. Chairman Benesh noted that the new requirements that go into effect on January 1, 2010 eliminate the BOCCIA analysis. The Board has to stay with what’s in effect now.
Chairman Benesh asked if anyone believes this should not be considered a structure; the Board has to consider it a structure for the variance. Helene is not sure; is the definition of a structure from the IBC? Chairman Benesh affirmed this; the State RSAs define “structure” as what is in the building code and in the 2006 IBC structure is defined as that which is built or constructed. Chairman Benesh also looked in Webster’s Dictionary and it defines structure as “something built by man” and the Board also has the new driveway permit that speaks of other structures like culverts. Arguably you have the State Supreme Court saying the Town & Country sign is a structure.
Helene asked for a clarification of the Zoning Ordinance: is the Board is saying that anytime anyone is going to build a fence on their property line they will have to come for a variance? Debra Crowther noted the issue is the height; Helene believes it’s not the height but rather the location that’s the issue; is the Board saying that anytime anyone wants to build a fence they have to apply for a variance because the Board views fences as structures? Chairman Benesh noted that would be the case if a structure is something that is manmade. The IBC says a permit isn’t needed for a fence but it doesn’t say something’s not a structure just because it doesn’t need a permit. Helene noted the IBC doesn’t say fences six feet tall have to be set back twenty-five feet; this is the
first time the ZBA has had to look at this. David Urey noted that the IBC says if the fence is shorter than six feet tall it doesn’t need a building permit. If it doesn’t need a permit then it doesn’t need a variance and it can be put it on the property line. Chairman Benesh is not sure that just because something doesn’t require a permit means that you don’t have to comply with the Zoning Ordinance. He believes the better way to go about this deliberation is not to discuss a fence on the property line; this is something which is much more than a fence. It’s a display structure and fourteen feet at its top height. One could argue it is a sign, one could argue that it’s a structure. The Board doesn’t need to worry about people interpreting this as meaning you can’t put a six foot high fence on your property line. David noted the Board doesn’t have to decide this tonight but it does
need to agree that this is a structure and is in violation of the setbacks. Debbie noted Larry’s whole lot is in violation of the Zoning Ordinance; he can’t meet a setback if he doesn’t have a setback. Chairman Benesh noted the house/building was already there while this is something new. Helene still believes this is a matter of the property not having enough land to accommodate the setback.
Chairman Benesh indicated that in order to obtain a variance, the applicant must meet the following criteria:
The value of the surrounding property will not be diminished. The Board has received no complaints (from surrounding property owners) about this and has had one and possibly two abutters who support the application. David asked if the Board should vote on each condition as it moves through its deliberation; Helene noted it’s not necessary to vote on each as long as the Board agrees.
Granting of the variance must not be contrary to the public interest. David noted the interpretation of this is that no harm would be done to the public or to the neighbors; Debra agrees there is no harm to the neighbors but is not sure the Board can agree there’s no harm to the public. Assuming it is properly engineered this needs no further discussion. Larry’s neighbors rely on him as much as he does on them and Helene agrees that it benefits the Village. Chairman Benesh noted the Board needed to consider the opinion of the Selectmen as to the public interest but he doesn’t think there was enough to say it would be against public interest.
Chairman Benesh is going to skip the “Special Conditions” piece at this time.
Substantial justice will be done by the granting of the variance. Each case must be determined separately by the Board. David noted that the gain in denying it must outweigh the loss to the applicant or an injustice is done. The Board agrees this condition is met as long as this will be properly engineered if the variance is granted.
The use must not be contrary to the intent of the ordinance. The Board agrees this condition is met.
This brings the Board back to the issue of Special Conditions.
3. Special conditions exist such that a literal enforcement of the ordinance would result in unnecessary hardship. The first prong of this is that the special conditions of the property make a variance necessary; the property is unique in its surroundings. Ted Brown noted that the nature of Larry’s business leans towards having a display. Chairman Benesh pointed out that the special conditions refer to the property not the owner. Helene noted the physical aspects of the property are unique in that it is thirty feet wide and the Zoning Ordinance calls for a twenty-five foot setback. Helene also believes the Board can discuss the way Larry is using the property as part of its deliberation. Ravenwood is a small shop and the property is currently in commercial use. Chairman Benesh noted the
Board can’t take the current use or the owner into consideration. David noted Larry could put a six foot fence up and have all the display area he wants; the law gives him six feet and he’s asking for a variance to go fourteen to sixteen feet up. The Board needs to come to an agreement that it is the special nature of the property that allows the additional height; there has to be something unique that would allow the extra ten feet in height. Chairman Benesh noted that, as an example, a property that is seventy-five percent wetlands would require the owner to build in only one area - that’s special and unique from other properties in the town. It’s hard to find something unique about this property compared to the one next to it and the one next to that. He does have a wall at the end but that’s not on his property. Helene would like to consider how the property was used. Larry was using the large Fire Department
wall for display with everyone’s permission. The Town wanted to use his property to mitigate the drainage issue on the Town’s property; physically it’s a new structure but it’s the same use. Larry didn’t initiate this change and even the Selectmen have said in their permissive use statement that this was a misunderstanding. It’s not clear that Larry needed a permit for what he built. He wanted to accomplish something he already had. The Town asked Larry to remove the items from the wall in order to fix the drainage problem on the Town’s property. These display items have always been there and what Larry has come up with is more esthetically pleasing and is not interfering with the Fire Department. It’s better and similar to what he had and he did not initiate it. David Urey pointed out that Larry did initiate building the current structure but he didn’t start the process. Helene
feels out that the courts look at private property rights and not penalizing people if there isn’t a clear problem. Larry took the opportunity to put in the fence while the Town wanted to dig a ditch. David noted that Jackson has had problems with people building without getting a permit. People need to get to the point where everyone understands that the first step in a project is to get a permit and then to build the thing. Larry is an educated person and has been on the Planning Board and he should have known that the permit needs to be approved first and Larry may be the first person to feel the brunt of that decision. Ted pointed out that it’s not as if Larry doesn’t have an alternative; he did mention a chainsaw and making it a six foot fence.
Chairman Benesh noted this speaks to the second prong of not causing unnecessary hardship. Ted noted that Larry would avoid the cost of engineering if he just cut the fence down to a height of six feet.
Chairman Benesh would like to review this situation to see if it qualifies for an Equitable Waiver. David Urey read the definition to qualify for an Equitable Waiver. The violation was not noticed by an owner or neighbor until after the problem structure was completed. The violation was not due to ignorance or bad faith. The violation was due to a good faith error in measurement or by error in ordinance interpretation by an official who has authority over the decision. Chairman Benesh noted that one could begin to see this in the statement from the Selectmen that Larry was told it was okay and then they said it was not okay. We also have the statement in the minutes that Selectman Mason said the IBC was difficult to construe.
David noted that if the Board is going to consider this for an Equitable Waiver then it needs to be noticed all over. He believes the Board needs to first decide if it’s going to grant a variance and that the Board can’t just switch what it’s going to consider tonight and the public isn’t prepared to discuss an Equitable Waiver. Chairman Benesh is not sure he agrees. Helene thinks the Board heard Selectman Funicella say the reason it was okay at the June BOS meeting then not okay was because in June the Selectmen didn’t know he needed a permit. Helene asked that if the BOS at the June 18 meeting did not know that Larry needed a permit, how could he have known he needed a permit in May when he built the fence. Larry has come forward and had these discussions in good faith and it’s
confusing to everyone. On June 18th Larry was given direction by the Selectmen (that what he’d built was okay) and then in July they changed their minds. That’s where we get to the Equitable Waiver. David noted there may be an argument for an Equitable Waiver but the Board can’t hear it tonight; the Board can’t switch from a variance to an Equitable Waiver. David is not prepared to discuss an Equitable Waiver tonight. Helene thinks Larry does meet the criteria for uniqueness of the property and she also wants a clearer definition of a structure. There isn’t any other property that has a thirty-five foot wall along the property line. Larry acted in good faith, he took everything off the wall, helped put in a trench and he thought he had a way to make it better by not attaching items to the Fire Department wall. He worked with the Fire Chief and the Road Agent.
David pointed out that if Larry had applied for a permit and the Selectmen had approved it, that permit could have been reversed as inappropriate. If that had happened then Larry would be before the ZBA for that. The ZBA is the only Board that can grant a variance for a structure, which is what this is. Helene noted if there was a permit application then there would have been discussion about this fence at that time. Ted noted that if a permit had been applied for before the fence was built then the Selectmen wouldn’t have made comments off-the-cuff. David agrees, noting that Larry had already built the fence by the time Selectmen discussed it. If Larry had gone to the Selectmen in April and they said there was no problem then that’s another story as the applicant would have built it after the
Selectmen’s approval. Larry built this and then went to the Selectmen. Helene noted that the Board is not saying if it grants a variance to Larry that it’s okay to build without a permit. A permit would need to be applied for and granted and this would be properly engineered. The IBC created the ambiguity and Larry did ask the Fire Chief and the Road Agent. It was pointed out that neither the Fire Chief nor the Road Agent can grant a permit.
Chairman Benesh asked if there was a way to amend the application without it having to be reheard? Debbie noted the Board did that before and ended up having to rehear it twice. Chairman Benesh noted it is difficult for him to vote for the special condition prongs because meeting the Zoning Ordinance could be accomplished with another solution. He feels this is a good candidate for an Equitable Waiver. Larry already admitted that he will eventually take it down. The Zoning Ordinance doesn’t allow a fourteen foot structure on the property line but the fence isn’t permanent and it was a good faith effort on Larry’s part. Without a lot of thinking that seems like the best solution and Larry wouldn’t be allowed to rebuild it.
David would like to propose an alternative that the Board would give Larry a variance with a specific term in the variance that would be conditioned upon his tearing it down or bringing it down to six feet within, let’s say, five years, subject to getting a building permit, engineering and getting all the approvals the Selectmen require and not making any further requests for changes to the septic system that is on his property. No one will be harmed by this alternative. Debbie agrees this is another way to proceed on this application. Ted is uncomfortable with this being over twelve feet tall without it being properly supported. David noted Larry would have to have it engineered properly. Larry asked if the Board would consider a timeframe of ten years since engineering is going to cost him $2,000?
Chairman Benesh noted the Board can’t hear Larry’s comments at this time. David noted that this is all Larry’s choice. David thinks five years is enough and as far as the $2,000 engineering costs, that’s $400 a year for five years’ variance for the fence. Because of the circumstances David would consider a limited variance to give Larry the opportunity to correct the errors he and the Selectmen made.
Debbie asked if the Board can put any conditions on an Equitable Waiver. Helene noted that an Equitable Waiver says the structure stays as it is.
Ted is concerned that there isn’t a system in place to make sure the conditions of the variance are met in five years. David noted there would be no extension granted. The Board thinks Larry has a reasonable alternative and it is willing to give him five years to get there. Ted noted this is a special type of structure that gets special consideration. He asked about real estate signs; how long should they stay up? That hasn’t been addressed yet.
Chairman Benesh asked if there were any other Board comments regarding special conditions and the proposed resolution. David would like to know how much the Board wants to do tonight? He’d like to get a sense from the Board based on the general conditions that were outlined but he would like to put his proposal on paper before the Board votes; the Board needs to get this right. Chairman Benesh feels five years is the right limit on the variance but he is still not sure he could vote for special conditions here.
The conditions of David’s proposal were reviewed: the variance is to be for a limited time of five to seven years or upon sale or upon conversion or upon discontinuance of the business; the fence/structure could not be extended in height or length except as required to meet engineering requirements; Larry must go back to the Town to get a permit and pay all appropriate fees; he can’t increase the non-conformity and there should be some sort of agreement that there’s not going to be any “payback” with Larry telling the Town to remove the septic system. David noted that if Larry doesn’t meet all those conditions then he doesn’t get the variance. Larry asked permission to speak; which was granted by Chairman Benesh. Larry noted that there is an easement for the Town to use the septic
system and he and his wife have been given the septic system in their deed. Larry noted he’ll have to get agreement on the value of the fence first; if he gets in a disagreement with the Town over it being a $2,000 fence or a $12,000 fence, then this might all be settled.
Chairman Benesh will begin to draft an opinion and findings of fact then share it with the ZBA. He will send around a draft copy and the draft, marked as a draft, will become part of the public record. The members of the Board can’t vote or comment back and forth.
David will work on drafting the conditions of the variance. The Board isn’t making much of a change; it is transferring a pre-existing display by a couple of feet. The applicant is trying to resurrect what he already had but he’s putting it on his own property.
Chairman Benesh asked the applicant if there was any urgency to the Board’s decision; Larry noted there is none, but that he’d really like the Board to make this for seven years if they won’t go to ten because $400 a year is a lot to him. The next meeting is scheduled for January 6, 2010. The Board will meet at 6:30 p.m. to continue deliberations on this application with a 7 p.m. start time for the next applicant.
David Urey, seconded by Ted Brown, made a motion to adjourn at 9:23 p.m. The motion passed unanimously.
Respectfully submitted by:
Martha D. Tobin, Acting Recording Secretary
December 19, 2009
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