Jackson Board of Adjustment
Minutes of Meeting and Public Hearing, January 6, 2010
Minutes Approved: February 17, 2010
Town of Jackson Board of Adjustment
Summary of Issues, Findings of Fact, and Decision in re
Application of an Area Variance by Lawrence G Siebert
Case No. 2009-05
January 6, 2010
Background and Issues Raised
1. General
1.1. Laurence G Siebert (‘the Applicant’) acquired the property at V09 lot 30 (60 Main Street) in circa 1991. It was subsequently transferred to joint tenancy with Marjorie D. Siebert and Laurence G. Siebert in August 1998. The property lies in the Village District of the Town.
1.2. The northeastern side of the property is a 24.8 feet frontage on Route 16A (Main Street) and the property’s southeastern boundary is 100.6 feet with property now owned by the Town of Jackson. The Town of Jackson’s Fire Station lies within approximately 30 inches of Applicant’s property line and extends for approximately 75 feet along the 100.6 feet property line. The subject parcel (V09 Lot 30) also has a boundary with lot V09 Lot 29 also owned by the Applicant and R14.
1.3. The Fire Station and the Applicant’s property share a septic system located on the Applicant’s property.
1.4. In 2000 the Applicant converted his use from a residential one to a commercial use operating as ‘Ravenwood Curio Shoppe’
1.5. In 2000, the Applicant also began the practice of displaying merchandise and similar items on the wall of the Fire Station that abuts his property. This Applicant testified that this was done with the verbal approval of the Chief of the Fire Department.
1.6. In 2009, the Applicant permitted the Town of Jackson Fire Department to access his property for the purposes of installing a drainage system in a trench created running parallel to the Fire Station wall to alleviate flooding in the Fire Station. From the testimony it is unclear whether the drainage pipe is located on the Applicant’s or the Town’s property.
1.7. Coincident with the excavation for the Fire Station drainage system, in May 2009 the Applicant testified he installed a structure that will be referred to as a ‘Display Fence’. It consisted of 6x6 posts embedded in crushed stone in the same trenching to a depth of possibly 5 ft. (Subsequently, an informal communication from the Fire Chief suggests the trench depth may be less.) The posts support fencing that extends in height from approximately 5 feet to 16 feet. This is parallel to the wall of the Fire Station and the Town of Jackson property. It is located on the Applicant’s property within approximately 6” of his property line and approximately 36” from the Fire Station building. The top of the ‘Display Fence’ is stabilized with several
supports that are attached to the Fire Station Building. The merchandise and other items that were previously displayed on the Fire Station wall [were] are now displayed on the ‘Display Fence’. The Applicant testified that the Fire Department assisted with the installation and provided the crushed stone (in conjunction with the installation of their drainage system.)
1.8. The work on the Display Fence was done without a Building Permit or any inquiry by the Applicant as to necessity of same, or compliance with zoning and / or building codes.
1.9. In a June 18,2009 Town of Jackson Board of Selectman’s (‘BOS’) Meeting, there was discussion by the BOS noting the new ‘Display Fence’ has been constructed and included a door that allowed access to a electrical box for the Fire Station. The minutes noted that “Selectman Mason noted that Larry could put up a fence as long as it doesn’t make getting to the Fire Department building’s wall more difficult…. This was the only concern the Board had and as long a Larry has agreed to pay for any work on that side of the building it’s ok with the Selectman”. (It appears the BOS was more concerned at this point about the Display Fence being attached to the Fire Station and access to the Fire Station and had not yet considered the
applicability of Zoning and/or Building codes.)
1.10.In a letter to the Applicant dated July 20, 2009, the BOS noted that a ‘fence/structure has been erected’ without obtaining permits and instructed the Applicant to obtain a permit for the structure, or obtain a permit to demolish the work and return the property to its original condition.
1.11.A building permit application was submitted on or about August 3, 2009. This application was for a 39’ long ‘Display Fence’ with height varying between 5 to 16 feet. The application maintained setbacks requirements were not applicable. This application was later withdrawn by Applicant at a subsequent Selectman’s meeting.
1.12.At an August 20, 2009 BOS meeting the building permit application was discussed. Selectman Mason noted “that due to the height of the fence a permit is required. The IBC requires a foundation under the fence; it’s required to be self-supporting, however, it’s not easy to read the IBC and understand that a foundation is required for a fence.“ There was also discussion about appropriate action, including (1) not granting the permit, (2) requiring a foundation – tearing down the fence and rebuild it to code, (3) give permissive use without a permit. The matter was tabled until the next meeting.
1.13.A second building permit application was submitted on or about September 3rd. This application again stated that setbacks were not applicable and the work described provided for buttressing of the existing ‘Display Fence’. The buttressing would have added 14 ft to the length of the ‘Display Fence’
1.14.At a September 17, 2009 BOS meeting, the building permit was denied. In a letter dated September 23rd, the reasons for the denial were that as a fence over 6 feet in height, it was considered a standalone structure under the building code and required an engineered foundation to be installed along with an engineered bracing plan. The permit was also denied as the structure is in violation of the town’s setback requirements.
1.15.The Applicant submitted an Application for an Area Variance on November 17, 2009 seeking relief from the setback requirement that would allow the ‘Display Fence’ as built. A public hearing on this matter was held December 16, 2009. Deliberations began on that date and were then suspended until a meeting to be held at 6:30 p.m. on January 6th, 2010 at the Town Office.
2. Issues Raised
2.1. The Town of Jackson Zoning Ordinance (Section 4.3.2.3) states, in part, that “No building, structure, porch, or portion thereof shall be located” within 25 ft of an abutters property. The first issue raised is should the Applicant’s ‘Display Fence’ be considered a structure under the Zoning Ordinance and thus subject to the setback requirements. Though not a defined term in the Zoning Ordinance, structure is defined in Webster’s dictionary as “something (as a building) that is constructed”. This suggests that the ‘Display Fence’, in fact any fence, is a structure. In several sources related to Jackson’s ZO, , structure is defined as follows.
2.1.1. RSA 155-A, New Hampshire Building Code: “Structure means structure as defined and interpreted by the International Code Council’s International Building Code.” In the IBC, Structure is defined as “That which is built or constructed”.
2.1.2. Town of Bartlett Zoning Ordinance- -definition of STRUCTURE – “Anything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground. Structures include, but are not limited to buildings, mobile homes, ground signs, and tennis courts. Septic systems and or pavement are not structures for the purpose of this ordinance. “ Town of Bartlett Zoning also states “G. Fences: Fences in excess of 6 ft 6in height are considered structures and must comply with all setback requirements.”
2.1.3. The Supreme Court of New Hampshire decided, in Town of Jackson vs Town and Country Motor Inn (120 NH 699 A.2d 1034) October, 1980, that an 8 foot by 16 foot sign with supports in concrete was held to be a structure within the meaning of Jackson’s zoning ordinance. As such construction was held to be a structure, it is consistent that the Applicant’s 32 x 14 foot ‘Display Fence’ with an engineered foundation be considered a structure.
2.2. If the ZBA were to grant a variance, to comply with the International Building Code (“IBC”) , the Applicant would have to modify the ‘Display Fence’ to have an engineered foundation and engineered supports as, per the IBC, it is a fence over six feet in height. These requirements make this ‘Display Fence’ more distant from our understanding of the word fence and more clearly a structure.
2.3. To grant the Applicant’s Request for a Variance from the setback requirements for any structure, the Board of Adjustment must determine that the Applicant has demonstrated that no Decrease in Value of Surrounding Properties Would Be Suffered. During the public hearing,
2.3.1. No abutters presented evidence suggesting that values would be decreased.
2.3.2. A letter was received in support of the variance from the proprietors of The Inn at Thorn Hill, Mary and James Cooper, stating that the “wall that was built as being an asset to the stated property. We feel it adds a positive visual asset to the property and the business.”
2.3.3. A letter was received from the proprietors of the Inn At Jackson, an abutter to the Applicant’s parcel at lot V09 Lot 29. They state “as an abutter and perhaps the only property, which faces the fence in question. Simply, the fence and RavenWood has always been an asset and a joy to our guests. In my opinion the fence enhances rather then detracts from the value of the neighboring properties.”
2.4. To grant the Applicant’s Request for a Variance from the setback requirements for any structure, the Board of Adjustment must determine that the Applicant has demonstrated that Granting the Variance Must Not be Contrary To the Public Interest.
2.4.1. As abutters, the Board of Selectman have expressed a concern that the “Display Fence”, in being built so close to the property line, that it limits the Fire Department’s ability to access and maintain the Fire Station.
2.5. To grant the Applicant’s Request for a Variance from the setback requirements for any structure, the Board of Adjustment must determine that the Applicant has demonstrated that Denial of the Variance Would Result In Unnecessary Hardship To the Owner Seeking It. To meet this requirement, the Board must determine both (a) Special Conditions of the Property make an area variance necessary in order to allow the applicant to construct the development as designed and (b) The applicant cannot achieve the same benefit by some other reasonably feasible method that would not impose an undue financial burden
2.5.1. In regard to part (a), the Applicant has testified that his property is unique in its surroundings as most of his southeastern property boundary has the blank wall of the Fire Station within 2 ½ feet of the property boundary for at least 75 ft along the length of the property boundary
2.5.2. In regard to part (b), the question of other reasonably feasible methods, the applicant has testified that he can achieve approximately the same result by displaying his merchandise on a fence that is 6 ft or less in height
2.6. To grant the Applicant’s Request for a Variance from the setback requirements for any structure, the Board of Adjustment must determine that the Applicant has demonstrated that By Granting the Variance Substantial Justice Would be Done. This is interpreted to mean that the gain to the public by denying the variance must outweigh the loss to the applicant; otherwise an injustice has occurred. There is conflicting evidence on the gain to the public, versus the loss to Applicant if he must limit the height of the Display Fence to six feet.
2.7. A variance should be consistent with the Spirit and Intent of the Zoning Ordinance. The purposes of requiring setbacks from a property line involve various issues, such as, limiting density of buildings and structures, preserving views, protecting access along property lines, and the like. In this case, the density issue is a concern because of the height of the structure. While several neighboring inns have expressed support for the Applicant’s Display Fence and appear not to be concerned with the “view” issue, this may in part be explained by the orientation of the adjacent Fire Station, which in any event would block a view from most directions. If the Fire Station were destroyed, razed or moved, the view issue might be quite different. There have been concerns
expressed by the BOS of blocking access to the Fire Department wall. And the Town’s Road Agent has informally expressed concern about obtaining access for equipment along that side of the Fire Station. Moreover, the Master Plan adopted in August, 2003, page 2, states as follows: “Policy: Efforts will be made to decrease the non-conformity of existing land uses and structures, whenever the opportunity arises.” This is followed by: “Objective: Require adherence to existing regulations if changes are proposed in non-conforming uses or structures.” The Applicant’s existing buildings, other than the Display Fence at issue, are largely non-conforming but are grandfathered. The granting of a variance for another non-conforming structure on Applicant’s property would be at odds with some of the purposes of setbacks requirements in the Ordinance, and clearly not within the spirit of the Master
Plan.
Findings of Fact
The Jackson Board of Adjustment finds the following:
1) For the purposes of the Jackson Zoning Ordinance and based on both the dictionary definition of structure and the fact that to comply with the IBC, engineered foundations and supports are required, the Applicant’s ‘Display Fence’ is considered a structure and is required to comply with the 25 ft side setback from any abutter’s property line. The Applicant has stipulated that the ‘Display Fence’ is approximately 6” from the property line and is thus in violation of the ZO. Accordingly, Applicant is requesting a variance of 24 feet or more from a setback requirement of 25 feet .
2) Should the Applicant reduce the height of the ‘Display Fence’ to 6 ft or less and remove the attachments to the Fire Station, we find that such a fence would comply with the setback requirements of the Zoning Ordinance. We note that this approach is consistent with our understanding of the treatment of fences by the Zoning Ordinance in the neighboring town of Bartlett, NH]
3) The testimony demonstrated that no Decrease in Value of Surrounding Properties Would Be Suffered.
4) Setback requirements promote the public interest in limiting density, preserving views, providing access to emergency vehicles, promoting fire safety. The testimony demonstrated that the Town of Jackson, as an abutter was concerned about access to their property for maintenance and other purposes. The Applicant has offered access via a door in the fence, but it is unclear if that sufficiently addresses the towns concerns. The hearing thus demonstrated that Granting the Variance may be Contrary To the Public Interest as it is injurious to one abutter and is not in the public interest unless appropriate access is ensured (as could be accomplished with a condition on any variance granted).
5) The presence on an adjacent property of a building that is within the setback it not an uncommon occurrence among the surrounding properties, including the applicant’s own dwelling located on the adjacent parcel to the northeast. All properties so situated share the burden of setback restrictions that preclude the construction of a 16 ft tall structure within the 25’ setback. This is especially true where Applicant is already making abundant use of a non-conforming building on the property from which to conduct business. Thus the Applicant has not demonstrated unnecessary hardship due to the uniqueness of his property.
6) The testimony indicated that the Applicant could display his merchandise on a fence of lesser height as a reasonably feasible alternative. This testimony demonstrates that the Applicant can achieve nearly the same benefit by some other reasonably feasible method that would not impose an undue financial burden. In fact, the option of building a 6 ft fence rather than a 16 ft high fence with an engineered foundation would be less costly alternative, as the engineered foundation could be avoided.
7) The testimony has demonstrated that By Granting the Variance Substantial Justice Would be Done provided the concerns of the BOS about access to the Fire Department can be satisfied, although there is evidence that would support the opposite conclusion.
8) The testimony demonstrated that The Variance is Contrary to the Spirit and Intent of the Ordinance. We find that the Spirit and Intent of the Ordinance would not be met by granting the variance, considering the various purposes of a setback that could be thwarted by such a structure so close to the property line, and the clear direction provided by the Master Plan that non-conforming structures should be reduced, not increased in the Town.
Decision
As the ZBA has found that
a) the Applicant has failed to demonstrate unnecessary hardship as the property is not unique in it’s surroundings as it relates to the construction of a new structure, such as the Display Fence, essentially on the property line,
b) the applicant can achieve substantially the same benefit by some other reasonably feasible method, that is, constructing a 6 ft fence that would thus comply with the ZO, and
c) that granting a variance would be contrary to the spirit and intent of the Ordinance by permitting the expansion of a non-conforming building and/or structure and thus inconsistent with the Master Plan,
the ZBA denies the Applicant’s request for a Area Variance.
The Board has considered additional factors, which in the Board’s opinion support’s this decision. The Applicant is a knowledgeable, student of the Zoning Ordinance having long been interested in the question of the need for building permits, and having recently been appointed to the Planning Board as an Alternate. Applicant should have realized that a building permit was required prior to beginning construction of the structure. The BOS did not immediately recognize the zoning issues involved in the unauthorized construction, but this was harmless error since the structure had already been erected without a permit when the issue was first considered by the BOS. There was no reliance by Applicant on the conduct of the BOS when the unauthorized structure was put in place.
Voting in Favor: Frank Benesh, David Urey, Ted Brown, Debbie Crowther,
Opposed: Helene Matesky
Dated: January 6, 2010
Minutes of Meeting and Public Hearing
January 6, 2010
UNOFFICIAL UNTIL APPROVED
Draft January 17, 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, Larry Siebert, Larry Garland, Betsey Harding, Sam Harding, Bob Davis, W(?) Yaceshyn, Thom Perkins, Alan Wilson, Ken Kimball, Sarah Kimball, Phil Davies, Bob Kantack, Mike Sachse, Denise Sachse, George Howard, Suzanne Scolimaro (sp?) and Roger Chambers also attended the hearing.
The Chairman called the meeting to order at 6:31 p.m.
Approve the Minutes of December 16, 2009 Chairman Benesh asked for corrections and Deb noted there was a typo in that Frank’s last name was misspelled once (Beniesh); Ted Brown noted that the Minutes need to clarify that the Town’s septic system is under Larry Siebert’s property and that this same septic system is used by Larry Siebert but is a deeded easement to the Town; David Urey wasn’t sure Chairman Benesh had stated he wasn’t “worried about meeting the other criteria” of the application however Chairman Benesh noted he believes he did say something to that effect. There were no further amendments or corrections. Ted Brown, seconded by David Urey, made a motion to approve the Minutes of December 16, 2009 as amended. The motion passed unanimously (Benesh,
Crowther, Matesky, Urey & Brown).
Set date for ZBA Annual Meeting Chairman Benesh noted the ZBA would hold its Annual Meeting on January 20, 2010 beginning at 7 p.m. Chairman Benesh asked Board members to email any issues to him.
Continuation of Deliberation – Larry & Margret Siebert Chairman Benesh asked the Alternates to leave the table as this is a Continuation of the Deliberations started at the December 16th meeting; at the last meeting (12/16/09) there was mention of a second letter and that was received via email from the Inn at Thorne Hill. Chairman Benesh also had a phone call from Jackson’s Fire Chief; Jay wanted to correct that the trench is only three feet deep and the drainage pipe is all on Town property. Neither of these is particularly germane. Deb noted that Ed Dubie was Fire Chief at the time Larry started using the Fire Department wall; nothing is in writing and hanging things on the wall “just happened”. Chairman Benesh noted this means it (Larry’s use of the Town’s wall)
was acquiesced to; not explicitly agreed to by the Town.
Chairman Benesh spoke with counsel who reviewed the process the ZBA is using by looking to the dictionary for the definition of a structure. The Supreme Court on Jackson vs. Town and Country (T&C) clearly defines T&C’s sign and even a second sign as structures; this supports the position the Board is taking. Larry’s fence is a structure. Chairman Benesh discussed the “conditions” David suggested be attached to the structure. Those conditions would require Larry to remove the fence after a certain time or at sale of the property. The determination is that the condition should run with the land and not depend on who owns the land. It was suggested that a condition would be more appropriate if there was a parking lot that was an issue then the Board could condition an
approval by requiring trees to be planted. Chairman Benesh noted this isn’t a researched legal investigation. If the Board’s deliberations reach a consensus on a variance with conditions, it would be appropriate to postpone a final decision and recess to obtain a more definitive legal opinion.
Chairman Benesh sent around a proposed Draft Decision and the only part that was new from the prior meeting was Chairman Benesh’s difficulty in finding something about Larry’s property that was unique; there are other properties in Town that have buildings on adjacent lots that are close to the property line, as is the case with the Applicant’s property. For example the Skimos and the Wildcat Tavern have a similar situation, as does the The J-Town Deli and the golf course maintenance garage. The prohibition of a tall fence (structure) applies equally to them, so the Applicant’s property is not unfairly or uniquely burdened.
David Urey noted that it can be argued there are unique properties to the lot but it is not a unique property. There was a property on Moody Hill Road with two setbacks then NH Electric Coop went through the back of the lot; that left a property where the building envelope was pathetically small. That was a truly unique lot and the owner wanted to build a house on this property. The owner had paid taxes on that property for years and had gotten no use from it. He only had enough space to build a shed on what he had (so an area variance was granted) and that’s not the kind of situation the Board has before it tonight. This building functions as a Commercial building so Larry is already getting substantial use. David also finds it difficult to find any hardship. Deb agrees; all of this would be
settled if Larry would cut this down to six feet.
Most of the Board members agree, however Helene does not. She respects all the research but a variance is supposed to allow for flexibility. She feels it would be different if this were an appealed administrative decision; it’s not in the spirit of the ordinance as it’s not in the Master Plan. The Board looks at granting a variance for two reasons; uniqueness and hardship. The uniqueness of the property has to do with the relationship this property has with the Town. The Town’s building is on the property line. Her belief is that if this fence were three-dimensional then she would say Larry can’t put it in setback. The reason this application is coming to the Board is because it’s taller than 6 feet. Helene would vote for a variance because this structure is
right next to the Fire Department’s wall and that wall is massive. The Fire Department isn’t twenty-five feet from Larry’s property line. The structure is on Larry’s side of the property line. She doesn’t believe that cutting it down to 6 feet would make Larry whole. He has had a display on the Fire Department’s wall that’s greater than 6 feet. We can’t take away the display area because the Fire Department had to fix a leaky floor. Ted reminded Helene that the Fire Station was there before the ordinance came into being. Larry bought this property with that wall already there; he put it into commercial use after the ordinance went into effect. If Larry cuts it down to 6 feet it will stop all these concerns.
Chairman Benesh noted that he is hearing the Board say that something that is fifteen feet high is a structure and a structure can’t be built in the setback; while a five or six foot fence is acceptable. The Board has to agree with that premise.
David noted that the Board has a lot of precedence as fences have been built on property lines forever. The Zoning Ordinance doesn’t say anything about fences. The building code says at 6 feet (height) it requires a permit. Deb agrees, noting that if it was less than 6 feet Larry wouldn’t need a permit. Helene noted that Chairman Benesh made a valid point. Someone can build a 6 foot fence on the property line anywhere in Jackson but would we want all the businesses along Main Street to do that? Chairman Benesh noted Larry has an alternative and if the Board grants this variance it is saying the Zoning Ordinance allows fences up to 6 feet. Helene feels it probably makes sense for the Planning Board to make that decision as the ZBA doesn’t have authority to put this in the Zoning
Ordinance. This is the first fence issue that has come to the ZBA and she thinks the Board is going beyond its bounds. No one asked the Board if it’s ok to build fences that are 6 feet tall within the setback. David reiterated that the Zoning Ordinance doesn’t speak to fences. Helene is concerned that the language Chairman Benesh has in the Decision Document (Draft) says that anyone can have a six foot fence. We’re calling this a structure; the Board doesn’t need to answer a question that’s not been asked.
Helene wonders if the Board could adjourn and rephrase the statement (of the Draft Decision). David noted that historically people have been allowed to build fences on the property line; the Board needs to get away from the Zoning Ordinance allowing it; the Board is exceeding what it needs to find here. All the Board needs to do is to Find that this is a structure and it’s in the setback.
Chairman Benesh asked if the Board would like item #2 (in the Draft Decision) removed; David likes having the IBC reference; Helene feels the permit issue needs to be left to the Selectmen and would strike that reference; Ted noted the people need to understand that just because you can build a fence on or adjacent to the property line doesn’t mean you don’t have to get a permit. Chairman Benesh noted that Helene has suggested removing the reference to permitting. David would like to continue discussion on this; he agrees the Board goes too far in the Draft Decision statement but we don’t have to invite the Planning Board to review this since the Planning Board Chairman is in attendance tonight and we do have the Code Enforcement Officer; the Board agrees to leave the last two sentences of paragraph #2 (of the
Draft Decision).
David noted that the Master Plan encourages us not to permit further non-conformity. He doesn’t feel the application meets the spirit of the Zoning Ordinance or the Master Plan. While the Master Plan isn’t legally binding it does speak to how this is part of the Master Plan (page 2) and he’d like it in the Minutes.
“Regulatory Goal: Enforce land use regulations reasonably and uniformly. Policy: Efforts will be made to decrease the non-conformity of existing land uses and structures, whenever the opportunity arises. Objective: Work with owners of non-conforming structures and uses to encourage compliance with current regulations. Objective: Require adherence to existing regulations if changes are proposed to non-conforming uses or structures.”
Helene noted the Board is getting into semantics with the definition of structure versus a fence. David noted that if this “fence” is to be engineered properly then it will need to be supports and attachments to the Fire Department wall. That’s a structure.
Chairman Benesh asked if the Board members were ready to vote or if they wanted to postpone the vote. The Board members are ready to vote. The Board has discussed each of the prongs; the Board needs to make a determination regarding demonstrating unnecessary hardship and if there is an alternative option available.
The Board found that the applicant failed to demonstrate unnecessary hardship 4-1 (Matesky in the negative).
The Board found that the applicant could achieve substantially the same or nearly the same results with an alternative action 4-1 (Matesky in the negative).
The Board found granting the variance would be inconsistent with the Master Plan 4-1 (Matesky in the negative).
The Board made an overall decision to deny the variance 4-1 (Matesky in the negative).
The deliberation/decision on the Variance Request ended at 7:10 p.m. and the Alternates returned to the table.
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