Jackson Board of Adjustment
Meeting
October 20, 2010
UNOFFICIAL UNTIL APPROVED
Draft October 20, 2010
Members in Attendance: Frank Benesh, David Urey, Brian Walker, Joan Aubrey and Gino Funicella (joined at 7:28 p.m.). Martha D. Tobin is the Acting Recording Secretary. Pat Wyhinny (applicant) and Fay E. Melendy (applicant’s attorney) also attended the hearing.
Chairman Benesh noted there is a meeting in Madison at the town hall to discuss RSA 674:41; it will be on Wednesday October 27th from 6:30 – 8:30 p.m. with LGC presenters. Chairman Benesh asked for folks to let him know either tonight or via e-mail if they plan to attend; he encouraged folks who could to attend. David cannot go but Chairman Benesh, Brian and Joan Aubrey can. The annual fall planning conference is November 13th in Whitefield at the hotel. Those who wish to attend can register online; it’s worth going to.
Chairman Benesh noted he would like to switch the agenda items in order to take the application first. This is Case 2010-08 Pine Cone Properties LLC (Patricia Wyhinny).
PUBLIC HEARING FOR AN APPLICATION FOR AN EQUITABLE WAIVER OF DIMENSIONAL REQUIREMENTS
The hearing was called to order at 7:04 p.m. with Frank Benesh, Chairman of the Board of Adjustment, presiding. Notices had been sent out to all abutters and all return receipts have come back except Mr. Green’s. Chairman Benesh noted there are only four members present and the applicant needs to get three votes to get the equitable waiver; there are usually five people voting. The applicant can either put the hearing off to the next meeting or accept a four-person vote. If she accepts the four-person vote she can’t complain if she loses. Pat asked if the Board was expecting any others to attend tonight; there is nobody else Chairman Benesh knows is coming. If she wants to postpone the Public Hearing to next month the Public Hearing and public input would occur then. This would allow the fifth Board member to participate in the entire process. Mrs. Wyhinny asked if that would also be the time when there is discussion among the Board and the applicant; Chairman Benesh
affirmed that would be the case. He explained that the Board listens first to the applicant and/or the applicant’s counsel then he calls for public comments after which the Public Hearing is closed and the Board members deliberate. Chairman Benesh noted the proceedings can’t go forward if the applicant isn’t happy with the four-person vote. Mrs. Wyhinny asked if the Board could perhaps move onto the other agenda items and see if another member arrived. The Public Hearing was temporarily suspended.
Approve the Minutes of August 17, 2010 Chairman Benesh reminded folks this was the discussion about the Benoit decision. Joan Aubrey, seconded by David Urey, made a motion to approve the Minutes of August 17, 2010 as written. The motion passed unanimously (Benesh, Aubrey, Urey).
Public Hearing, continued Chairman Benesh reopened the Public Hearing. (David Urey phoned Joan Davies, she is unable to attend). Attorney Melendy asked if this is unusual having only four voting members in attendance; her client has come a long way but would like to have a five-person Board. Is it likely at the next meeting there would be five members present? Chairman Benesh noted it’s a fifty-fifty chance. There are two members who are in the process of resigning; one who can’t drive anymore and another that is working so much that she can’t continue on the Board. In other words the Public Hearing could be continued for a month and be in the same situation. Pat asked if Chairman Benesh felt the decrease in people would persist and
Chairman Benesh noted it would continue until the Selectmen appoint someone to fill the seats. Ted is resigning and Debbie is going to have to resign before her term expires as it is not fair to miss so many meetings. The Selectmen have to appoint one or more of the Alternates as voting members and then the Board will need to fill two slots for Alternates. Joan is interested in being appointed as a regular member. Chairman Benesh noted it’s likely the Board would have Gino at the next meeting which is November 17th. David noted his attendance would be questionable on the 17th. Attorney Melendy noted her client would like to elect to wait for a five member Board and they would like to wait until the Board could reschedule the Public Hearing when there would be five members in attendance. Attorney Melendy noted the Board Meetings are at night so her availability isn’t an issue. (David Urey called Gino
Funicella: Gino will be joining the meeting) Chairman Benesh temporarily suspended the Public Hearing. Gino Funicella joined the meeting at 7:28 p.m. Chairman Benesh reopened the Public Hearing regarding Pine Cone Properties LLC, Case 2010-08. This is a request for a waiver from the dimensional requirements; the Board has to make a finding as to why this happened and if the violation doesn’t cause a nuisance, affect the value of abutters and that due to the degree of changes necessary to correct the violation the cost of correction far outweighs any public benefit. He feels these are the best three things for the Mrs. Wyhinny and/or Attorney Melendy to speak about. (The applicant and her Counsel joined the Board at the table).
Attorney Melendy noted she and Mrs. Wyhinny are here tonight to discuss 164 Green Hill Road, Pine Cone Properties LLC. There is a violation of the fifty foot setback from the road. She has submitted to the Board, with the application, some of the documentation from Town records which indicate that in 1987 a Building Permit was issued to the prior owner to build the sunroom on the front of the house. Another Permit was issued by the Town to construct the garage which is also located on the front of the house. The house is located in the only place that it can be on the property due to the topography; right behind the house the land falls dramatically away. Both of these additions were made to the property with permits from the Town and the town officials were aware of how the measurements
were being made. The owner and the town believed the measurements were correct. These improvements have existed for more than ten years and no action has been brought about this. It wasn’t until 2010 when Mrs. Wyhinny was preparing for work to be done on the house and hired a professional to calculate the setbacks. Mrs. Wyhinny didn’t buy the property until 2009 and at the time she was not aware there were any Zoning issues concerning the property. The improvements have existed for more than ten years without any municipal enforcement action. The dimensional violations don’t constitute a nuisance. A nuisance is determined by asking is this a danger to public safety or health; there is nothing about the structure that is a danger.
The existence of the violations doesn’t affect the values of any property; there is no house across from the property; there’s no violation on side setbacks so there’s no impact to neighboring properties; the only setback issue is to the roadway. There doesn’t seem to be any adverse effect with this portion being in the setback.
The cost of correction will far outweigh the benefit. This is a substantial portion of the building that would be affected. It would mean taking down a portion of the original structure as well as the sunroom and the garage.
As a final point, Attorney Melendy would like to show that it would be inequitable to require that the violation be corrected. We have a violation that no one knew existed until the professional work was done. Mrs. Wyhinny purchased the property like this; the violating construction wasn’t constructed by her and was done with some agreement from the town. It would be inequitable to require her to correct these violations. Given the history, the period of time this has existed and the lack of impact to abutters or the surrounding properties the Board should grant the Equitable Waiver.
David finds the memo from Ted Brown in 1987, when he was the Building Inspector, to be really interesting. This pertained to the sunroom, not the garage. This says the Selectmen were fully involved and by consent they measured from the shoulder. He feels this Board would be undermining a decision the Selectmen made thirty years ago. Ted said they measured from the center of the road.
Gino noted this is an old road that’s been widened a number of times; it’s difficult to determine the setback. Chairman Benesh noted the measurement should have been taken from the property boundary; thirty years ago they should have determined the boundary line of Helen Mosely’s and then measured back from there. It was noted that in thirty years no one has complained about this.
David noted the last action was 1994/95. It’s been fifteen years since the last work was done on the house. This property qualifies for the ten-year exemption.
(The applicant and her Counsel left the table).
There was no one else in attendance to testify; Chairman Benesh closed the Public Hearing at 7:45 p.m.
Chairman Benesh noted this is fairly straightforward; it occurred more than ten years ago and both decisions the town was involved in. In 1995 the garage was a ZBA case. Everyone thought they were aware of the setback. The ten-year test is clearly met.
Chairman Benesh would like the Board to think about the cost to fix the violation versus the public benefit and then the Board can determine if there is any public nuisance or affect to property or abutters.
David noted there are some plans for a gable roof and the shed roof is coming out. He’d like to know if that is in the works or does it have anything to do with this decision. It’s true about those plans however Chairman Benesh noted a variance may be needed to increase the size of the garage. Attorney Melendy noted that because of what was believed to be the setback the garage is configured oddly. Part of the work planned is to square up the garage but it will not get any closer to the road. David asked if the Board is going to see anything for the garage but Chairman Benesh noted that work is not part of this deliberation unless there’s a reason David believes future plans affect this application. The only thing the Board has done so far with this property is
denial for a variance to expand further into the setback as that case was heard in 1995 and this Board can’t revisit that decision. There are certainly other things the applicant can do with this property but it doesn’t impact this decision.
Gino asked if there is a precedent that this would set and Chairman Benesh noted only when the Board interprets the zoning. One would think this Board would be consistent. Gino noted this property is strange because of its situation and the fact that she can’t expand the garage any more. Chairman Benesh asked folks to get back on topic. Does the Board agree that this violation was more than ten years ago? The Board agrees. Then the next decision is if this causes a nuisance or diminishes property values. Because of the degree of construction that would be needed the cost of correction would be too much.
Joan noted all changes to the property were made with Building Permits and reviews by town officials. There’s no public benefit to correcting the violations so that test is easily passed.
Brian sees no reason not to grant the Equitable Waiver; David has no issues either.
Joan Aubrey, seconded by Brian Walker, made a motion to accept the findings of fact 1) this has existed for more than ten years. The motion passed unanimously (Benesh, Aubrey, Walker, Urey, Funicella).
Joan Aubrey, seconded by Gino Funicella, made a motion to accept the findings of fact 2) this violation doesn’t constitute a public nuisance or diminish property values. The motion passed unanimously (Benesh, Aubrey, Walker, Urey, Funicella).
Joan Aubrey, seconded by David Urey, made a motion to accept the findings of fact 3) past construction was done with building permits and the cost outweighs any public benefit. The motion passed unanimously (Benesh, Aubrey, Walker, Urey, Funicella).
Joan Aubrey, seconded by David Urey, made a motion to grant the Equitable Waiver. The motion passed unanimously (Benesh, Aubrey, Walker, Urey, Funicella).
Joan Davies, seconded by Gino Funicella, made a motion to adjourn at 7:55 p.m. The motion passed unanimously (Benesh, Aubrey, Walker, Urey, Funicella).
Respectfully submitted by:
Martha D. Tobin
Acting Recording Secretary
Decision re case no. 2010-08
Town of Jackson Board of Adjustment Summary of Issues, Findings of Fact, and Decision in re Application for a Equitable Waiver of Dimensional Requirements by Pine Cone Properties LLC (c/o Patricia Wyhinny), the ‘Applicant’, 164 Green Hill Road (map R12 – 168)Case No. 2010-08
October 20, 2010
1 Background
1.1 The Town of Jackson Zoning Ordinance requires, for any structure or building, a 25 ft. setback from an abutter property line, a 50 foot setback from the sideline of any public or Private Road right-of-way, and a 50 ft. setback from the near bank of any year-round stream or body of water which is a property boundary (sec 4.3.1.2 and 4.3.2.3). There are additional requirements in the River Conservation District.
1.2 On July 1, 1987 the Town issued a building permit to a prior owner of the Applicant’s property, Helen Mosely, for an addition of a sunroom to the front of the house. The sunroom was intended to be 50 ft from the right of way for Green Hill Road to comply with the Zoning Ordinance. The Building Inspector of the Town of Jackson reviewed the placement of the sunroom according to a June 1987 memo.
1.3 On May 5, 1995 the Town issued a building permit to the a owner, Helen Mosely, for the construction of a garage on the front of the house. The garage was also intended to be 50 ft form the right of way for Green Hill Road.
1.4 Pine Cone Properties LLC acquired the property February 3, 2009 (book 2764 page 810).
1.5 A 2010 survey provided by the Applicant’s architect, Christopher Williams, indicates that both the sunroom and the garage were in fact constructed within the proscribed setback. In the case of the sunroom, it is 37’ 6” from the sideline of the Green Hill right of way. In the case of the garage, it is 39’ 1” from the sideline of the Green Hill right of way.
2 Decision:
2.1 The Board of Adjustment grants Equitable Waiver of Dimensional Requirements by making the following findings:
2.1.1 The encroachments into the proscribed setback have existed for 10 years or more, and that no enforcement action, including written notice of violation, has been commenced against the violation during that time by the municipality or any person directly affected,
2.1.2 the encroachment does not constitute a public or private nuisance nor diminish the value of other properties in the area, nor interfere with or adversely affect any present or permissible future uses of any such property, and
2.1.3 that due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of construction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected.
It was moved by Joan Aubrey, seconded by David Urey, and approved to make the Findings of Fact itemized above and to grant the Equitable Waiver.
Voting in Favor: Joan Aubrey, Frank Benesh, Joan Davies, Gino Funicella, David Urey
Opposed: none
Dated: October 20, 2010
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