Town of Jackson Board of Adjustment
Summary of Decision in re
Request for a Variance by Pine Cone Realty Trust
(Patrica Wyhinny)
Case No. 2010-03
May 5, 2010
The Board of Adjustment decided:
“We find that no material change of circumstances affecting the merits of the application has occurred and the application is not for a use that materially differs in nature and degree from its predecessor on Dec. 15, 1994, case number 94-2.”
As Pine Cone Realty Trust’s application for a variance is not materially different from the application for a variance by Helen Mosley in 1994 for the same property (which was denied) and there has not been a material change of circumstances affecting the merits of the application, the Board of Adjustment cannot by law hear Pine Cone Realty Trust’s variance application.
Voting in Favor: Frank Benesh, Joan Aubrey, David Urey, Gino Funicella, Brian Walker
Opposed: none
Dated: May 5, 2010
Synopsis
In 1994 the prior owner of the property, Helen Mosley, sought a variance to build a one car, attached garage off the south east corner of the house that had an entrance substantially perpendicular to Green Hill Road. The application for a variance was denied. Tonight the applicant seeks a variance to eliminate the angled entrance to the garage [which minimized the encroachment into the setback] and seeks to build a one car, attached garage off the south east corner of the house that has an entrance substantially perpendicular to Green Hill Road. We find no material difference exists between the original proposal that was denied and what is proposed in the current application for variance or the circumstances on which the 1994 denial was based.
TOWN OF JACKSON
JACKSON BOARD OF ADJUSTMENT
Jackson, New Hampshire
May 5, 2010
Minutes of Meeting: Variance Application for Wyhinny
(Unofficial until approved)
Attendance: ZBA: Frank Benesh, Joan Aubrey, David S. Urey, Gino Funicella,
Brian Walker (alternate member)
Patricia Wyhinny, (applicant), Norman E. Larson, AIA, Wesley Smith
Public: There was no one from the public present
The meeting was called to order by Frank Benesh at 7:07 pm. Mr. Benesh stated that the order of the meeting would be as follows:
- We will first hear arguments on whether this area variance application is materially different from the one submitted in 1994 by Helen Moseley or if there has been a material change in circumstance. This will be deliberated first.
- Then, we will hear the merits of the new variance application, if the Board finds there is a material difference.
Mr. Benesh stated that public notice was given in the Conway Daily Sun, along with a letter sent via certified mail to the abutters of the property.
At 7:10 pm, the applicant presented the case for why this application is materially different from the 1994 application. Mr. Larson, representing Ms. Wyhinny, stated that this was the first time he was arguing for a case that was based on a prior decision. He stated that he was unfamiliar with the Fisher vs. Dover 120 NH 186,190 (1980) case, and asked if he could review the letter from the Local Goverment Center.
At 7:15 pm, Mr. Urey motioned that we share the letter from the Local Government Center. Motion was seconded by Mr. Funicella. All voted in favor.
Letter from the local government center was shared with the applicant and her representations.
At 7:17, Mr. Larson stated the reasons that this application was different from the 1994 case.
In summary, the following points were outlined:
- Different owner of the house
- The type of building is not the same. The house now has an existing garage that the applicant wishes to redesign.
- The neighborhood is not the same. Other houses in the neighborhood have been granted variances.
Mr. Urey countered on this point, asking for specific examples. Other members, Mr. Benesh and Mr. Funicello stated they were not aware of any other variances granted. These were houses that were existing prior to the adoption of the zoning ordinance.
Mr. Urey sought clarification from Mr. Benesh if he could interrupt and ask questions. It was granted. He stated that the proposal looked very similar from to the 1994 proposal.
The hearing on whether the application was different materially continued for the next 23 minutes. Mr. Larson spoke for the applicant, while several members of the ZBA asked questions and discussed the application.
At 7:40, Mr. Benesh asked if there was anything else that the applicant wished to discuss regarding how the application differed from the 1994 application. He reminded the hearing that we were not presently discussing the merits of the application; that would happen in the second part of the hearing.
Mr. Urey thought that we would vote first, to determine if the second part of the hearing was even necessary.
Mr. Benesh asked the applicant if there was anything else that needed to be presented regarding the materiality of the application. There was some discussion regarding whether the vote should taken in private, or in front of the applicants.
Mr. Smith asked for an informal vote, to see what the committee was thinking. This did not take place, but, Mr. Smith was given the opportunity to further the case of the applicant.
At this point, 7:47 pm, the dialogue continued with Mr. Smith outlining reasons for why this application is different from the 1994 application.
Mr. Smith argument focused on the following:
- Unique lot- the house sits so close to the slope, it is impossible for the owner to build anywhere but closer to the road.
- Public Benefit- with the current garage, fewer cars can fit in the driveway, thus people have to park on the road.
- Different House- since this house now has a garage. The application in 1994 did not have an existing garage.
This led to a discussion by the ZBA and the applicant, weighing the pros and cons of the application and whether this application differed materially from the 1994 application. At 8:15 pm, the owner of the house, and applicant, Ms. Patricia Wyhinny spoke on her own behalf. She stated the following reasons for why she was seeking a variance:
- Bought the house last year, the inspection took place while there was snow everywhere- could not park her car in the garage to see if it would fit.
- Her car does not easily fit in the present garage. Takes about 20 minutes to move in and out of the garage.
- Renters’ could have a problem placing their car in the garage. The simplest solution seemed to square off the garage.
At 8:20, a motion was made to bring the public hearing to a close. Deliberations began by the ZBA on the merits of the materiality of the application. The applicant and her representation were present for the deliberations.
At 8:25 pm, the decision from the 1994 case was reread. The rehearing in that case denied the request for a variance by finding that (a) granting the variance would not provide any public benefit to the general public, (b) substantial justice would not be done, and (c) the variance would be contrary to the spirit of the ordinance. The 1994 case did find that there was unnecessary hardship to the owner and that there would be no diminishment of value to abutters. After further debate by the ZBA, while weighing the pros and cons of the applicant’s case, it was decided that this application did not differ materially from the 1994 case and there has not been a material change in circumstances affecting the reasons the 1994 variance request was denied.
By a vote of 5-0, the following motion was passed at 8:30 pm:
“We find that no material change of circumstances affecting the merits of the application has occurred and the application is not for a use that materially differs in nature and degree from its predecessor on Dec. 15, 1994, case number 94-2.”
At 8:32, Mr. Benesh motioned to adjourn the hearing. Mr. Urey seconed the motion.
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