Jackson Board of Adjustment
Meeting
August 17, 2010
Members in Attendance: Frank Benesh, David Urey, Joan Davies, Gino Funicella and Joan Aubrey. Also in attendance was: Brian Benoit, Applicant and Beatrice Davis, Selectman, (Martha Tobin, Acting Recording Secretary, transcribed from tape).
Chairman Frank Benesh called the meeting to order at 4:02 p.m.
Approve the Minutes of August 2, 2010 David Urey doesn’t have a copy of these; Chairman Benesh noted they went out August 12th; he asked if the Board wants to postpone the vote on these if David doesn’t feel he had a chance to read them. David noted he must have read them online but didn’t print a copy. Chairman Benesh again asked if others felt the vote should be postponed; the rest of the Board members noted they had read the minutes. Joan Aubrey noted she has one correction, it is on the last page; the carry-over sentence regarding reducing the number of bedrooms; she thinks it should be the number of buildings. Chairman Benesh suggested the Board take a few minutes to skim the minutes; he noted he did them from a tape. (David takes a phone call) Joan Davies suggested a change on the third page, the second complete paragraph at the end, changing the word “an” to “a”; that’s appropriate (there was a consensus). (David returns to meeting). Chairman Benesh located the
reference to the turnaround; it’s towards the end of the first paragraph on the last page. The rest of the Board agrees that this was not drafted into the opinion.
Joan Davies wondered if, in the decision, the Board said that it be no smaller than currently proposed. Chairman Benesh noted that’s what the Board said. Joan noted that may be the case but is that what the Board meant? Chairman Benesh asked to get the minutes out of the way and then the Board can deal with the decision.
Chairman Benesh doesn’t want to push David on the minutes. David noted if the other members of the Board are ready to pass the minutes he knows he’s read them on his computer; he’s ok with voting on them. Gino Funicella, seconded by Joan Aubrey, made a motion to accept the minutes with the minor changes that were made. The motion passed unanimously.
Review of the Decision for Case 2010-07 Chairman Benesh noted the application is for a variance and appeal of administrative decision; and a request for exception under RSA 674:41. Chairman Benesh noted there are two “red-lined” copies as well as the “final” copy; for the greatest ease he would like members to deal with the “final” copy. The “red-lined” copies are available for reference so members can track the changes that have been made to the decision.
Chairman Benesh noted the Board had changed the title to reflect the appeal of decision and a request for exception and changed the reference to 674:41. He noted paragraph 2 is all new which references section 2.2.3 of the Zoning Ordinance. David noted the Selectmen should have considered whether these setbacks apply. The Selectmen just totally ignored any discussion on section 2.2.3 which is where the grandfathering starts. Chairman Benesh noted, in terms of background, this is the perfect place to insert the second paragraph. Dave agrees; he put it there; this is accurate. On paragraph 1.3 we did remove a double lot and Joan Aubrey has a new comment on new paragraph 1.5. Joan noted the discussion on the projection of the roof overhang still seems wrong. She would
propose changing less to more and add, “, (comma) within approximately ten to eleven feet on the northwest side and fourteen and a half feet on the northwest side of the Meserve property boundary” as she thinks that folks need to understand the measurement is from the property boundary so the intrusion is even more. (Brian Benoit joins) Joan continued, noting the projection from the roof overhang is more rather than less. David noted that the applicant’s property is probably surrounded by the Meserve property. Chairman Benesh notes he’s made a mistake here; there can’t be two northwest sides; Chairman Benesh will change one of the NW to the appropriate direction (southwest) rather than dig out the map right now; it will be fixed. The proposed change is: “The intrusion measured from the overhang is more, within approximately ten to eleven feet on ‘one side’ of the building and fourteen
and half feet on the ‘other side’ of the building of Meserve’s property boundary.” The Board members are happy with that change. Page one has been completed.
In paragraph 1.6 the last word was changed from “constructed” to “performed” and there were a number of changes to paragraph 1.7. Dave noted the Board quoted the Chalmers memo instead of paraphrasing it.
Chairman Benesh noted, in paragraph 1.8, he’s confused because the Board seems to have two appeals of administrative decisions referenced per David’s proposed wording. Chairman Benesh thinks there’s just one appeal of administrative decision and that appeal references 674:41; it doesn’t specifically reference the Zoning Ordinance regarding frontage. David agreed the Board has to be careful it doesn’t cite something that hasn’t been appealed. Joan Aubrey provided the Board with the actual appeal for review. David believes the Board needs to get to the frontage issue somehow; the Board has certainly talked about it enough. Chairman Benesh noted the appeal references 674:41 and the frontage issue is mentioned; he would recommend that the Board reference
one appeal with two parts RSA 674:41 and 4.3.2.4 of the Zoning Ordinance. The Board members agree. Chairman Benesh strikes 1.8.2 and then adds 1.8.4 to reference section 4.3.2.4. The Board discussed if that is the right section of the Zoning Ordinance. Benoit references 4.3.1.3 which is Rural Residential but this property is in the Village District so 4.3.2.4 is the correct reference for frontage required; chairman Benesh thinks the Zoning Ordinance is just misreferenced. David asked if he could ask Mr. Benoit a question; Chairman Benesh allowed this. David asked Mr. Benoit, “Is there any question but that you are within five-hundred feet of route 16A?” Mr. Benoit thinks he’s well within that. That is the criteria for the Village District; within five-hundred feet of Route 16 or 16A. Gino asked how the five-hundred feet is measured; David noted it could be from any section of the lot; there could be some of the
lot in the Village District some out and probably does. Gino noted it doesn’t matter which District this property is; it isn’t enough frontage. David noted that’s not the point. The Board needs to establish which part of the code it’s enforcing; what district it’s trying - Rural Residential or Village. It affects the decision. David noted it’s possible Mr. Benoit has land more than five-hundred feet from Route 16 or 16A so he’s probably in both districts; in the end it doesn’t make a difference except if he’s in the Rural Residential District then he needs two-hundred feet of frontage and if he’s in the Village District he needs one-hundred feet of frontage so the Board could be talking about the wrong amount of frontage. It was pointed out that in the Village District folks need one-hundred-fifty feet of frontage, not one-hundred. David believes Building Inspector Chalmers in his
correspondence has said this is in the Village District (Beatrice Davis joins). Joan Aubrey noted that it was not in the letter from Chalmers; in a June 21st letter Linda (Dresch) references 4.3.2 which refers to the Village District. This is from the town of Jackson and the Board agrees to stick with this, which it has all along. Joan Aubrey noted that in his letter of June 3rd, Building Inspector Chalmers states the lot is in the Village District. David doesn’t see a consequence if both the Town and the Building Inspector have interpreted the District wrong because the Board is going to come to the same conclusion even if two-hundred feet of frontage are required. Chairman Benesh would like to add in section 1.8.4 that the applicant made the argument that 674:41 is inapplicable; he’s not sure that is clearly indicated in 1.8.4 as currently written; he’ll reword it that the applicant argued that it was
inapplicable as well as seeking an exception.
David doesn’t think the Board is going to approve this decision tonight and Chairman Benesh noted he thinks he can make the changes to the decision as the Board goes through it. He doesn’t see that the Board needs to meet again on this. Page two is completed.
Chairman Benesh noted there are some changes to the end of the first partial paragraph on page three in where David added “the questions raised should the interior floor space be considered for section 2.2.3.” Then there’s a meaningful change in new paragraph 2.3 basically removing references to minimum lot sizes on non-conforming lots. Chairman Benesh asked the Board to reread 2.3 to make sure it makes sense; the Board approves of the re-write. Chairman Benesh noted paragraph 2.4 is new; 2.5 is new and in 2.6 the lead-in clause was reworded slightly to say “does the applicant meet the criteria”.
Moving into the findings in paragraph three there was a small change; David added the sentence in the beginning saying that the applicant had not met the statutory requirements for a variance under section 2.2.3 with respect to the proposed overhang which will encroach further into the setback area. The five elements have been added noting the Board finds this would be contrary to public interest; it would be a nuisance or cause harm to the neighbors, the granting of the variance would be contrary to the spirit of the ordinance. The set backs would be further encroached and the granting of the variance would not result in substantial justice being done. That’s all new. In paragraph 3-2 the first clause was changed to add “over the garage and part of the living space” to
indicate where the pitched roof is of concern. The Board members agree with these changes and additions. Paragraph 3-3 is all new. David asked Chairman Benesh to read this: “That section 2.2.3 of the Zoning Ordinance exempts the applicant from the provisions of section 4.3.2.4 due to grandfathering therefore the invocation of section 4.3.2.4 by the Building Inspector and the Board of Selectmen to reject the applicant’s request for a building permit was improper and should be reversed.”
Chairman Benesh noted this seems awfully strong; David noted he put this in strong with the idea that if the Board wants to be a little bit politic with the Board of Selectmen that’s fine with him. Gino thinks it is simpler to say the rejecting of the permit put the town at risk; it’s David’s opinion that it’s improper but the rejection should be reversed. David thinks this is a case of sensitivity. The Board could simply say the denial of a building permit is reversed and that while it says RSA 674:41-III states that this section shall supersede any less stringent local ordinance, code or regulation and no existing tract of land shall be exempted from this section, the Building Inspector and the Board of Selectmen have given no indication that this is the path they have
followed. For example this is an existing lot of land which has an existing structure or building on it the applicant is left with no explanation as to why section 2.2.3 is not applicable, why this structure isn’t grandfathered, why the officials use 674:41-III to trump 2.2.3 and what, in fact, are the findings of the officials and the basis of the rejection of the building permit by the officials.
Chairman Benesh thinks the findings don’t need anything more than the first two sentences; from “while” on we don’t need; David disagrees noting that somehow this Board’s concerns need to be communicated to the Board of Selectmen, whether that has to be in this opinion or by some other method. David has substantial reservations about the way this application was handled; huge details were overlooked such as the applicability of 674:41 and whether it applied to grandfathered homes. Maybe it doesn’t need to be put in this opinion but David thinks this Board could save a lot of work or maybe further appeals if this Board communicated to the Selectmen its concerns. Chairman Benesh thinks in paragraph 3-3 what the Board is doing is reversing the rejection due to the
frontage issue in the zoning ordinance and 674:41 is not relevant to that. David disagrees noting 674:41 is totally relevant because 674:41 gives the official the right to supersede some parts of the Zoning Ordinance. Chairman Benesh doesn’t disagree with that; the rejection was, at least in part, due to Chalmers’ and Diane’s comments that there was insufficient frontage and in paragraph 3-3 the Board is saying Section 2.2.3 exempts the applicant for the frontage issue, which has nothing to do with 674:41. David noted that would be the case unless 2.2.3 has been superseded by 674:41; the Board can’t ignore this. Chairman Benesh noted that even if the Selectmen were unaware of 674:41 they could have denied this or apparently did deny it in part because of section 4.3.2.4; the ZBA is saying with respect to that criteria; the building permit should have been granted.
David doesn’t see how the Board can stop there. Chairman Benesh noted the Board can go on with a separate analysis and decide what to do about 674:41. David asked what the Board would do if it finds 674:41 gives the Board of Selectmen the right to ignore 2.2.3. Chairman Benesh doesn’t think the Selectmen have the right to ignore 2.2.3; 674:41 is a more stringent restriction but it doesn’t eliminate the frontage requirement of 4.3.2.4; the frontage requirement is still there. They have to comply with the Zoning Ordinance but the ZBA is saying this piece of the ordinance doesn’t apply in this situation. David asked which part of the Zoning Ordinance doesn’t apply and Chairman Benesh noted thefrontage requirements of 2.2.3 don’t apply. David
reiterated that’s the case unless 674:41 trumps 2.2.3. Chairman Benesh noted the owner has to comply with 674:41; we also have to comply with 2.2.3. David reiterated that’s not the case if 2.2.3 is preempted by 674:41. 2.2.3 may not be in play and while that’s not David’s take on what the statute means, he believes that’s the theory the Selectmen have adopted. He knows the Selectmen couldn’t “ignore” the application of 2.2.3; it’s a fundamental, grandfathered clause, there’s no way they would; but they didn’t deal with it; they didn’t reference it in any way. Chairman Benesh asked the Board to hold up while he reads the RSA; he asked the Board when it says that this section shall supersede any less stringent code or regulation does that mean that the less stringent codes don’t exist at all; or does it mean they have to comply with both? Gino noted it goes on from there
to say there’s a method to overcome that. Chairman Benesh wants to know if the Board thinks “supersede” means that 4.3.2.4 doesn’t even exist; does 2.2.3 not exist at all because of 674:41 or does the owner need to comply with both? Gino noted “supersede” means to take the place of. David noted there are three or four requirements and the Board finds the owner met them all. Joan Aubrey thinks the Board is talking around an issue it has hashed out before; the Board of Selectmen have a right to evoke RSA 674:41 and this Board doesn’t get to judge that. So the question then becomes; this Board believes this property is grandfathered therefore rejecting the permit based on 4.3.2.4 is inappropriate. While other members thought that was enough Joan Aubrey thinks the Board needs to say it’s separate; Chairman Benesh noted this Board has found there are no problems for the applicant with section 4.3.2.4. Joan Aubrey suggested a change to the second sentence such that it states,
“Therefore the invocation of section 4.3.2.4 to reject the application is reversed; the invocation of only section 4.3.2.4 in itself without consideration of the RSA…” Chairman Benesh noted that David is the one who has a concern here; he’d like to put this in terms to make this plain language. It’s better to deal with the Zoning Ordinance and 674:41 separately. Chairman Benesh has made his suggestion to strike through that. Joan Aubrey suggests instead of striking through that portion, why not make it a separate paragraph, say paragraph 3-3-a; it’s related to the same discussion. Chairman Benesh noted the Board did get into 674:41 later on; the Board also says in paragraph 3-4 we don’t deal with whether or not 674:41 applies or not. That deals with that argument as raised by the applicant. David doesn’t think that first sentence can stand alone; it leaves out an important part which probably the
Selectmen relied on and that is the part of 674:41 which says that this RSA supersedes anything that conflicts with it. The Board can’t ignore this; we can’t say we reverse it when we don’t consider a vital element in whether we should reverse it or not. Why cross the bridge as to whether 674:41 preempts 2.3.2 before we decide whether we should reverse the decision. Chairman Benesh was looking at it more containerized; if 674:41 didn’t exist this would still be the correct decision for this applicant. David wants to know how the Board can say it’s reversing something when we don’t deal with an RSA that says it supersedes all less stringent codes. We reversed the decision to start with but then we decide to reinstate it here because of this; David doesn’t think that makes sense. Chairman Benesh noted that would be a perfectly logical result to say the Selectmen were wrong to deny this on the lack of
frontage but the Selectmen also invoke 674:41 and we could find that an exemption is appropriate or not but that’s independent of the Zoning Ordinance. Chairman Benesh wants to know what David is trying to convey in paragraph 3-3; David is trying to convey that the Selectmen did not give a fair explanation to the applicant so the applicant would know what happened and could appeal what the Selectmen have decided. The Selectmen have left out several vital elements that they had to consider in arriving at this decision and you can’t leave an applicant not knowing the basis for the rejection. Chairman Benesh suggests a separate paragraph between 3-3 and 3-4.
David says we may be able to do this but he doesn’t see how this Board is going to draft it here. He’s not saying “this is the only way you can do it” but David doesn’t think the Board can reverse a decision which the Board might have to reverse later on if the Board finds that 2.3.2 applies. Chairman Benesh noted that perhaps the right language would be, “we are reversing the denial of the permit to the extent that the denial was based on 4.3.2.4”. David noted that wording provides him some hope; 4.3.2.4 applies but there is something that supersedes it; this property is in the Village District and 4.3.2.4 does apply however, it’s not like the Selectmen applied the wrong section of code; it does apply but because of 2.2.3 it is superseded; it is
applicable. Chairman Benesh asked if the Board wanted to add, “To the extent that 4.3.2.4 is applicable, the Board is reversing the decision because of 2.2.3”. David noted that 2.2.3 might be superseded because of 674.41 so this Board still hasn’t come to the ultimate decision. Chairman Benesh noted that this Board has to clearly say that 4.3.2.4 doesn’t apply here because of 2.2.3 so to the extent anyone is relying on 4.3.2.4 it doesn’t count but only to the point that the Selectmen are invoking 4.3.24. David generally agrees with this but he doesn’t think the Board should reverse the Selectmen’s decision at that point because the Board still hasn’t dealt with whether 2.2.3 has been trumped. Chairman Benesh reminded David that the Board is saying the invocation of 4.3.2.4 by the Building Inspector and the Selectmen is reversed, not the entire decision. David doesn’t look at it
that way.
Gino suggests the Board make a decision on this wording and move on; we can be here all night. He’s ready to make a motion to accept Chairman Benesh’s interpretation. He’d like the Board to move on; we could discuss it all night; this thing isn’t going to go anywhere. David says this thing could go somewhere. Gino noted it can go anywhere on appeal; David noted that’s why the Board needs to do this right! Gino noted there is a point in 674.41 which does allow for a different interpretation by the Zoning Board. We’re getting stuck on this; we can interpret this the way we want to.
Chairman Benesh wondered if the rest of the paragraph works as a separate paragraph. He’d like the Board to agree to simply say 674.41 supersedes any less stringent local ordinance and go on to say the Building Inspector and the Selectmen have not given a clear indication that this is the path they followed. David, frankly, doesn’t know if that’s the path the Building Inspector and the Selectmen followed or not. Chairman Benesh noted that’s why he put it that there’s not a clear indication; 2.2.3 is never mentioned. David noted this Board doesn’t know how the Building Inspector and the Selectmen interpreted the grandfathering and the Zoning Ordinances; he noted the Board could ask Selectman Davis but he doesn’t think that’s proper here. Selectman Davis noted that the Selectmen stated that the Benoits had to get a waiver; that’s all they said. David suggests this information should be broken out in its own subsection. Chairman Benesh agrees that it is good to say it’s not
clear what the Selectmen exactly did with relation to 674:41. Gino noted if this Board looks at 674:41 it basically says don’t do it. Chairman Benesh read the RSA to the Board.
RSA 674:41-III states “this section shall supersede any less stringent local ordinance, code or regulation and no existing lot or tract of land shall be exempted from the provisions of this section.” The Building Inspector and the Board of Selectmen have given no clear indication that this is the path they followed; the applicant was left with no explanation as to why 2.2.3 is not applicable. That’s what this Board found. Chairman Benesh is taking out the “for example” portion and the other members agree. David noted there is a substantial question as to whether 674:41 applies here or not but this Board has talked to the LGC and it’s not clear. In David’s opinion it doesn’t apply but that’s just his opinion. It’s probably
not the opinion of the LGC either but that’s not our business. Joan Aubrey suggested taking off the question in the middle.
Chairman Benesh reminded folks this is a finding. David noted an argument could be made that there’s a better place to put some of these things; if the Board wants to move some of that to a section that’s talking more about 674:41 he has no objection but he thinks some of these questions need to be raised. The Board agrees it’s confusing to raise these questions in the context of 2.2.4 and 4.3.2.4. Gino wants to know if the addition to the paragraph as Chairman Benesh has proposed works and David doesn’t know if that works as he hasn’t seen it yet. Gino suggested David take a moment to read the changes to the draft. Chairman Benesh suggested the Board might want to put the third sentence of that paragraph into section 3 as an “issue raised”.
Joan Aubrey suggested starting in paragraph 3.3 with the comments about 674:41 with “While” and then this would provide the two thoughts; one is that the Selectmen and the Building Inspector didn’t give clear indication as to path they are following and they left out section 2.2.3; therefore we can make our finding that 2.2.3 exempts 4.3.2.4. The Board members agree this makes sense; we have both parts in the sentence. David thinks it’s right but he wants to see the exact language. The thought process doesn’t bother him at all; it’s a good thought process. It’s tough for David to rewrite this in this kind of meeting. He noted if someone could transpose this into something we can vote on; he’d be happy to be a part of it but he’s having trouble seeing exactly how this works. Joan Aubrey was asked to write this out for all to approve.
Chairman Benesh asked folks to continue forward onto paragraph 3-4. David suggested saying this Board believes there’s a substantial legal issue; he wants to give the Board of Selectmen a head’s-up with appeals of 674. This Board believes 674 may apply but we take no action. It was noted the Board of Adjustment has the jurisdiction. The Board does agree there’s a substantial issue; we don’t know if the Selectmen have talked to Jackson Town Counsel Rob Upton or if they’ve only talked with the LGC but David really thinks the Selectmen should talk to Rob as well; this Board has talked to Rob and David doesn’t believe the answer this Board is getting. Gino asked if all the Board members believe there’s a substantial legal issue; Gino agrees
there’s a possibility of a legal issue but he doesn’t know as it’s substantial. Gino thinks this Board has a right to overlook 674:41. Chairman Benesh noted this Board doesn’t have the authority to decide whether it even applies or not. Joan Davies believes if this Board doesn’t have the authority then we can’t say there’s a substantial legal issue. Chairman Benesh knows David would like to have this in there while Chairman Benesh’s inclination is to not have this in there at all; he’d like to find a compromise. David noted if someone could come up with another way of communicating this information with the Board of Selectmen he’d be happy to be a part of that too. He wants to make sure the Selectmen understand the concerns this Board has. We’ve talked with the LGC; we’ve read this RSA over and over again; we’ve probably more legal training than the
Board of Selectmen have; we think they ought to get a second opinion. Gino suggested we just say something like we believe there are issues regarding 674:41 with this application regarding buildings erected prior to such and such a date and let it go at that. It’s almost like we’re saying “go get a lawyer because this is a legal issue” and he doesn’t think it is; he thinks it’s just an interpretation. The Board members approve of this wording. Joan still thinks we should just say issues. Gino agrees, vis a vis it’s application to buildings and structures erected prior to 1983. This Board takes no position on this as it’s not in our jurisdiction. Chairman Benesh would stop there to avoid redundancy.
David noted the other issue we haven’t talked about, and he’s willing to leave this out of the document, is that Building Inspector Chalmers relied on saying Jackson can’t issue a Building Permit on a house that doesn’t meet 674:41. That and he said it so broadly that if someone wanted to reroof, make no structural changes nor spend more than $10,000, in turn you’ll need a Building Permit. There’s a good argument that just because a Building Permit has to be issued doesn’t mean 674:41 is invoked. Chairman Benesh understands what David’s going for but now’s not the time to get into this. David is fine with that but somehow this Board needs to find a way to communicate to the Board of Selectmen that we have these other reservations, if in fact
we do. David noted it’s his opinion; we live in the same town and we’re going to pay the same legal bills if we don’t do this thing right. Chairman Benesh will get on the Selectmen’s agenda. David quipped that he would attend with Chairman Benesh or he would stay home depending on Chairman Benesh’s preference. Chairman Benesh noted this needs to get on the Planning Board agenda as well. David is certainly happy to take out some of his concerns over the legal interpretation. Chairman Benesh asked how the Board feels about Gino’s recommendation that the last sentence be changed to say “we believe there are issues as to whether or not 674:41 applies to structures erected prior to the enactment of 674:41.” Chairman Benesh asked the Board how much beyond saying we don’t interpret RSAs it wants to go; Gino asked if it’s this Board’s job to interpret RSAs and Chairman Benesh noted
it is not. Gino noted if it isn’t this Board’s job then why even discuss it. Chairman Benesh noted this Board has spent a lot of time thinking about 674:41 and it’s probably okay to communicate something to the Selectmen about that. It’s a question of what belongs in this decision. The Board agrees. Gino noted by this interpretation Mr. Benoit can’t have a building permit if this applies; does that mean if a tree fell on his house he wouldn’t be able to get a building permit? Chairman Benesh noted he doesn’t think members of this Board think that. Chairman Benesh noted the discussion is getting into the hypothetical; he’d like the Board to focus on the decision statement. He is suggesting that this Board has thought about this; we have some questions about this and leave it at that. David asked Chairman Benesh how he would word this. Chairman Benesh noted after the first
sentence, which says we don’t have the authority, “Therefore the Board takes no position on the applicability of RSA 674:41 in the facts of this appeal. We believe there are issues as to whether or not RSA 674:41 applies to buildings and structures that were erected prior to the enactment of RSA 674:41.” Chairman Benesh would stop right there and go no further. His concern is not so much whether RSA 674:41 applies to buildings or structures erected prior to the enactment of 674:41; does it apply to enlargements and modifications to these structures is the more interesting question. Chairman Benesh asked if the Board would be willing to accept the change just discussed. Gino suggests adding “we do believe there are issues as to whether 674:41 applies to the renovation and enlargement to buildings and structures already erected.” David noted it applies to two separate issues; it applies to structures constructed
prior to the enactment and it applies to modifications. Chairman Benesh noted the only way 674:41 will apply prior to its enactment is if there is a renovation and modification issue. 674:41 applies to buildings that were built before 1983 and after 1983. Chairman Benesh would word this in the language the LGC gave us regarding modifications, renovations and enlargements. David wants “erected prior to the enactment of RSA 674.41.” Chairman Benesh wouldn’t put that in because he thinks it applies to those erected both prior and after. There are still doubts about each. If something were constructed after 1983 and there was an enlargement Chairman Benesh would still have a question as to whether or not this applies. Chairman Benesh suggests leaving this as it is up to “1983”. Gino noted this Board has had five meetings on this; this is a very well thought out decision. The Board members agree. This completes paragraph 3-4.
Back to 3-3 proposed changes: RSA 674:41-III states “this section shall supersede any less stringent local ordinance or no existing lot or tract of land etc.” however the Building Inspector and the Board of Selectmen have given no clear indication that this is the path they have followed. The Applicant is left with no explanation as to why Section 2.2.3 is not applicable, why the structure or building is not grandfathered, whether the officials are using 674:41-III to trump section 2.2.3 of the Zoning ordinance. However the Board of Adjustment finds that section 2.2.3 of the Zoning Ordinance exempts the Applicant from the provision of 4.3.2.4, frontage, due to grandfathering. Therefore the invocation of Section 4.3.2.4, in isolation, by the Building Inspector and the Board of
Selectmen to deny the Applicant’s request for a Building Permit is reversed.” David noted the only question now is: Are they trumping 2.2.3 or 4.3.2.4 or both. 4.3.2.4 calls for one-hundred-fifty feet. David asked if 674:41 requires two-hundred feet of frontage. The RSA just says “frontage” so any frontage. David feels that surely ten feet of frontage is not going be enough. Chairman Benesh noted one could argue this but let’s not go there. They are trumping the grandfathering. The Board members are happy with this language.
On to 3.5; a sentence has been adding that this Board finds it has authority to pass judgment but Chairman Benesh is not sure it’s up to us to find we have the authority. David noted the Board has to decide it has the authority before it can hear the case. We’re finding that it doesn’t require any more relatedness here. Chairman Benesh wanted to move on to 3.6 but Gino wonders if using the term “pass judgment” was an appropriate term; Joan Aubrey suggested that the Board simply state that the Board has the authority to grant an exemption. Joan Davies noted this is clearer.
In paragraph 3.6 the Board finds that prohibition of the building permit relying on the provisions of RSA 674:41 for the planned addition by the applicant would be a practical difficulty because the existing building is in need of repair and the proposed improvements will increase the safety of the home and its ability to shed snow in the winter. David wants to raise a question. Does anyone want to address the hardship; no one wants to address hardship and practical difficulty is probably the easier criteria to meet. Frankly, Chairman Benesh has some concern as to if there is any hardship. Chairman Benesh was ready to move on to 3.7 finding there will be no incremental hardship but Gino wants to go back to 3.6 practical difficulty the home needed reconstruction because the home is in serious
need of major repairs. Chairman Benesh suggested “because the existing structure is in need of repair” but David would like the finding to say “building” rather than structure; if there’s a difference this is a building not a structure. David noted the work planned will increase the safety of the home; fire codes will come into play with the sprinkler system; there could be electrical work too. If the applicant meets the current standards it’s going to be a great improvement over the previous situation.
In 3.7 the Board finds no incremental hardship to future purchasers given the applicant’s plan to reduce the number of bedrooms and install sprinklers systems. Chairman Benesh asked the Board members if they are okay with the number of bedrooms. David noted this is what the Applicant told the Board, we’re not holding him to it but we believe him.
In 3.8 the Board finds no incremental difficulty in carrying out the master plan.
This brings the Board to the Decision; Section 4; which has changes. Section 4.1 is unchanged but 4.2 and 4.3 are new.
In 4.2 we’re finding that the increase in living area as described by the Applicant falls within the side setback, is not “interior floor space” for the purposes of the last sentence of 2.2.3 in the Zoning Ordinance. Thus no variance is required. Gino wants to know if we could change interior floor space to interior volume but David noted this is pulled from the Ordinance; it’s key wordage. Nobody knows precisely what it means; that’s what we’re deciding here. Joan Aubrey had a copy of 2.2.3 and it was verified that it is the last sentence of Section 2.2.3.
In 4.3 the Board has decided to take no position as to the applicability of 674:41.
In 4.4 the Board stuck with the fact finding and grants an exception under 674:41 with following conditions:
4.4.1 – Before granting of the building permit a certification generally along the lines of the attached Exhibit ‘A’ and as approved by the Board of Selectmen must be filed and recorded with the registry of deeds that certifies that the Town assumes no responsibility for maintenance of access nor liability for damages resulting from the use of the access road. Further, the Town assumes no responsibility for the provision of emergency services and may, at times, be unable to provide police, fire, and ambulance service.
4.4.2 – The existing dwelling and any improvements thereto will have a fire sprinkler meeting NFPA standard 13-D installed and maintained by the applicant.
4.4.3 – This is the requirement on the driveway; the Board says in the minutes in the motion that the size of the vehicle turnaround is to be no smaller than on the drawing. David would like to reference a turnaround; Chairman Benesh will reference the drawing that was turned into the ZBA on a specific date; it will be the one in our file. The Board agrees to say that the size of the vehicle turnaround on the Applicant’s driveway be no smaller than the drawing submitted on a certain date. Gino suggests the Board use the term “dimensions” rather than
drawing that way we’ve set the dimension rather than the size. Gino suggested “The dimensions of the vehicle turnaround will be no smaller than those submitted on the plan dated ****.” The Board is happy with that.
The date on the decision will be changed to August 17, 2010. There were no further comments or changes to the suggested decision.
Gino Funicella, seconded by Joan Davies, made a motion to approve the decision of the Draft of August 14, 2010, as amended August 17, 2010. The motion passed unanimously.
Chairman Benesh will put the ZBA on the Selectmen’s agenda to discuss 674:41. He knows of no upcoming activity for the Board. There is no reason to have any more meetings at this time. He thanked the members for the many meetings for the past month. It’s been an interesting process.
Selectman Davis asked if she’d just heard there was nothing coming up for the ZBA which was affirmed. Selectman Davis noted Bob would be calling him. Chairman Benesh noted his wife told him that Mr. Davis stopped by the house looking for him.
Gino Funicella, seconded by Joan Davies, made a motion to adjourn at 5:24 p.m. The motion passed unanimously.
Respectfully submitted by:
Martha D. Tobin
Acting Recording Secretary
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