Jackson Board of Adjustment
Minutes of Meeting and Public Hearing
August 2, 2010
Board Members in Attendance: Joan Aubrey, Frank Benesh, Joan Davies, Gino Funicella, and David Urey. Absent were Ted Brown, Debra Crowther, Brian Walker, and Lisa MacAllister.
Present in audience: Steve Benoit, Bobbi Meserve.
Meeting called to order August 2nd at 7:00 pm.
Corrections and Final Review of Healy Decision: - A correction was recommended by Benesh to note that owners are Thomas Healy and Jennifer Healy and that the property was acquired Jan 6 2010 (recorded Jan 8 2010 at book 2838 page 50). Urey noted that an error describing the setback from the rear property was not yet corrected. New wording should read “This application indicated that the rear of the house was 40 ft. from the rear property line, suggesting that the rear setback would be less 12 ft. from the rear of the house.” Urey recommended that paragraph 1.4 should be changed to “expand into the allowable building envelope” and that paragraph 1.7 should include the year. Urey pointed out that “use” should be changed to “structure” in p 3.4.
Review and Adoption of Minutes of Prior Meetings: The minutes of July 23, 2010 were reviewed. Urey asked that Board and Applicant be consistently capitalized and last names be consistently used. Other minor corrections and misspellings were identified. Approval of the minutes was moved by Joan Aubrey, seconded by Joan Davies, and approved unanimously.
The minutes of July 25, 2010 were reviewed. Joan Davies noted that she was missing from those absent. Urey indicated that he asked to show the porch stairs and that several measurements were taken to confirm the position of the house as shown on the Benoit drawings. Approval of the minutes were moved by Urey, seconded by Joan Davies, and approved unanimously.
The minutes of July 14, 2010 were reviewed. Benesh asked that the minutes be changed to reflect that he announced the withdrawal of the Variance Application by Pine Cone Properties (Patricia Wyhinny) with the intention of resubmitting in the future. Approval of the minutes was moved by Funicella, seconded by Joan Aubrey.
Deliberations on Benoit: At 7:20 pm the Board continued deliberations on a decision regarding case of 2010-07. Benesh started by summarizing the issues he saw: (a) the frontage required by zoning ordinance and how that applies (Benesh suggested that because 2.3 of the zoning ordinance allows a 2 bedroom house on a nonconforming lot that does not meet minimum lot size standards, one can infer that at least a 2 bedroom house is allowed on a nonconforming lot that does meet minimum lot size
standards) (b) the area variance with regard to the roof overhang and with regard to the interior floor space that appears to be created by adding a pitched roof (Benesh noted that there was little in the record to support an variance and was uncertain if the floor space created should be construed as floor space within the meaning of the zoning ordinance), (c) the RSA 674:41 exception – which can be addressed by comparing the current situation vs. what is proposed and measuring the impact of the change against the criteria by which an exception can be granted.
Urey noted that the frontage issue can be addressed by 2.2.1 which address the enlargement of a nonconforming use and 2.2.3 which allows a nonconforming structure to be moved, enlarged, or replaced provided it does not make the structure more non-conforming in any way. After further discussion, Urey indicated that 4.3.2.4 regarding frontage was misapplied by the Board of Selectman and the Building Inspector, as 2.2.1 and 2.2.3 allow the enlargement of the nonconforming use and structure. Urey went on to say that they should or could have relied on RSA 674:41 which requires frontage on a Class V road or better (and specifically excludes deeded ROW over other lots as a means of access). Benesh and Aubrey offered support statements to this assessment that 4.3.2.4 was misapplied.
Turning to the issue of RSA 674:41, Benesh noted that the letter from the Selectman to Benoit, the minutes of the Selectman’s meeting, and the memo of the building inspector referenced in both the letter and the minutes have some ambiguity in that the letter informing Benoit of the denial of the building permit specifically addresses the lack of frontage (as required by 4.3.2.4) but the letter does not specifically cite the requirement of frontage under RSA 674:41 which supersedes the zoning ordinance requirement. However both the minutes of the BOS meeting in which the permit was denied and the memo from the building inspector clearly cite RSA 674:41 and their belief that RSA 674:41 prohibits the issuance of a building permit for an enlargement of a structure on a lot without street access. Note was also made that the Applicant filed
an Appeal of an Administrative Decision seeking an exception to RSA 674:41. After discussion there was a consensus that the Board of Selectman invoked RSA 674:41 though the letter failed to specifically cite this.
The discussion then turned to the criteria for granting an exception. Benesh noted one criterion was the issue of the structure requiring a connection to existing streets. Benesh noted that the enlargement of the current structure but reduction in the number of bedrooms and addition of a fire sprinkler system will not result in a structure that requires more connectedness to the existing streets than the present structure. Aubrey noted that the waiver of liability was an important consideration that should be required. Urey agreed.
A second criterion was that enforcement of the prohibition on a building permit practical difficulty or unnecessary hardship. Aubrey and Funicella both noted that the inability to change the roof from a flat roof to a pitched roof would be an unnecessary hardship.
Benesh noted a third criterion was increased hardship to future purchasers or undue financial impact on the municipality. Aubrey noted that the waiver of liability was important in this context as well and that
the waiver has to be recorded. Benesh noted that the Applicant had already agreed to sign such a waiver during the hearing.
Benesh noted that the fourth criterion was whether granting the exception would increase the difficulty in carrying out the master plan. Urey noted that the master plan discourages increasing nonconformity. Aubrey noted that relevant portions of the master plan might include (a) the goal of not increasing the nonconformity of structures in the setback and (b) the permitting process of new subdivisions should go before the planning board. Aubrey noted that perhaps this lot should not be subdivided. Benesh and Urey felt that this is a Planning Board matter and RSA 674:41 would also create problems for subdividing the lot as well.
Urey posed the question – is there a consensus that the Board feels the four criteria are largely met and that this is eligible for an exception. Benesh noted that he still had some uncertainty concerning our ability to find unnecessary hardship or practical difficulty, especially in regard to adding 1100 sq ft to an existing 1600 sq ft. dwelling. Urey noted the practical difficulty living in the present structure vs. an enlarged dwelling. Urey also noted that our zoning ordinance would allow the expansion of the building. . Benesh noted that the owners inability to build a 1100 sq ft addition that would otherwise be allowed under our zoning ordinance is a practical difficulty. There was a consensus
Benesh noted indicated that we had already discussed the condition of a municipal waiver and suggested we should also require a condition of having a fire sprinkler system installed and maintained. He also asked if we needed to limit the number of bedrooms in the future. Urey noted the latter is in the zoning ordinance only in relation to minimum lot size and should not be a consideration here. Urey agreed that the fire sprinkler system was a key criterion to granting the exception and formed the basis or our decision that there would be no greater demand for municipal services and likely less over the deeded easement. There was consensus on both Urey’s points on sprinkler system and number of bedrooms.
The Board then turned to deliberation on the area variance application. The Board noted that there would be new floor space in the attic space created over the garage and northern end of the building when the roof is converted to a pitched roof. There was discussion as whether this qualified as floor space for the purposes of the Zoning Ordinance section which allows the addition of a pitched roof so long as the “interior floor space” is not created. Benesh proposed that we adopt an interpretation of the Zoning Ordinance that the presumes that such space is not ‘interior floor space’ for the purposes of the Zoning Ordinance so long as the floor to ceiling height is less than 4’, it is unheated, and not easily accessible.
The Board then turned to the issue of allowing the roof overhangs to extend an additional foot or so into the proscribed setback. Benesh indicated he saw no hardship, that the abutter perceives an diminution in value if there is further encroachment (in addition to the existing 10’ encroachment) into the proscribed setback, that the Applicant has provided little reasoning for the granting of a variance other than saying they would like to have the larger overhangs as a personal preference and that there were
no practical difficulties dictating larger overhangs. Urey noted he had the same sentiment but suggested we review all the requirements for a variance.
The Board reviewed all five prongs (a) Contrary to Public Interest: Benesh indicated that he felt it would be contrary to the public interest as there is harm to neighbors. The Board voted unanimously that this test was not met. (b) The spirit of the ordinance must be preserved. Aubrey indicated it would not be in the spirit of the ordinance as the setbacks would be further encroached and Urey noted that the master plan also discourages such action. The Board voted unanimously that this test was not met. (c) Substantial justice would be done, that the gain to the public must outweigh the loss to the applicant. Benesh noted that there was little harm to the applicant when weighed against the public interest. The Board voted unanimously that this test was not met. (d) The value properties would not be diminished. Benesh noted that we had
un-rebutted testimony that this was the case. The Board voted unanimously that this condition was not met. (e) That there is hardship – which the Board again voted that hardship had not been demonstrated by the Applicant.
Urey summarized that the Board had considered all five criteria for granted a variance and found that none of the criteria had been met.
There was then discussion about adding a condition that requiring the building inspector to validate that the new construction does further encroach into the setback. Funicella noted that this was probably unnecessary, as this is part of the building inspector’s job. Urey noted that we might say ‘In rendering this decision, the Board of Adjustment calls attention the existing encroachment of the roof overhangs into the proscribed setback and it is the assumption of Board of Adjustment that the building inspector will carefully monitor this to prevent further encroachments.”
Aubrey asked if we need to review the waiver that the Applicant will be asked to sign. Benesh noted he provided a possible waiver as an outline of what we might require. Urey suggested that we not specifically require the execution of a specific document but simply attach one as the form of what we recommend to the Board of Selectman.
Urey proposed a motion with regard to the variance, that the Board finds that none of the five criteria for granting a variance have been meet for the reasons cited in the minutes to follow and therefore the request for a variance is denied. Benesh moved to amend the motion to state that we are also finding that attic floor space with less than 4ft floor to ceiling height, that is unheated and inaccessible not be considered floor space for the purposes of 2.2.3 of the zoning ordinance and thus no variance is required. Funicella seconded the amendment. The Board voted unanimously to both the amendment and the motion.
Benesh proposed a motion that we grant a exception to 674:41 as requested in the appeal of an administrative decision because we find (a) the proposed increase in floor area does not require the building or structure to be any more related to the streets than is the case at the moment given the Applicant’s decision to install a sprinkler system, (b) that the addition does create additional financial hardship to future purchasers or increase municipal liability, given the installation of the sprinkler system and reduce the number of bedrooms, that there is practical difficulty limiting the applicant’s
ability to rehabilitate the house, and the addition proposed by the Applicant does not create additional difficultly carrying out the master plan beyond what is currently in place. Urey recommended an amendment to strike the reference to the reduction in the number of bedrooms. The amendment was seconded by Joan Davies and approved unanimously. Joan Aubrey recommended that the motion should also make reference to the requirement for execution and recording of a waiver of municipal liability. This amendment was seconded by Urey and voted unanimously. Urey then recommended a third motion that the size of the vehicle turnaround at the end of the driveway on the Applicant’s property be no smaller than is currently proposed by the Applicant on the submitted drawing. This motion was seconded by Joan Davies. Urey’s amendment passed
unanimously. Funicella seconded the original motion by Benesh. The Board then voted unanimously to grant the exception, as amended by Urey, Aubrey, and Urey.
Benesh asked Urey to take the present draft of the decision and update it for consideration at the subsequent meeting.
Benesh announced that the Board of Adjustment would meet again on Tuesday August 17th at 4:00 pm at Town Offices to review the draft decision.
Benesh noted he would also write to the Chairman of the Planning Board suggesting a review of the issues raised with RSA 674:41.
The meeting adjourned at 8:55 pm upon the motion of Urey.
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