Jackson Board of Adjustment
February 4, 2015
Draft February 10, 2015
Members in Attendance: Frank Benesh, Jerry Dougherty and David Matesky. Alternates attending the meeting were Martha Benesh and Huntley Allan. Martha D. Tobin is the Recording Secretary.
Chairman Frank Benesh called the meeting to order at 7:00 p.m.
Elect Chair and Vice-Chair Vice-Chairman Dave Matesky, seconded by Martha Benesh, made a motion to elect Frank Benesh as Chairman. The motion passed 4-1-0 (Dougherty, Matesky, M. Benesh, Allan in the affirmative, F. Benesh in the negative).
Chairman Frank Benesh, seconded by Jerry Dougherty, made a motion to elect Dave Matesky as Vice-Chairman. The motion passed unanimously (Benesh, Dougherty, Matesky, Benesh, Allan).
Chairman Benesh noted there are two Hearings on the agenda and the Caldwells are represented by an attorney tonight. In the interest of expediency, he has scheduled them first.
Public Hearing - Request for Variance, Owner Caldwell, Map V10, Lot 33-A Chairman Benesh opened the Public Hearing at 7:04 p.m. The Board will hear from, and ask questions of, the applicant and her legal representative as well as those who have an interest, including abutters then the Board will deliberate and either come to a decision or continue deliberations to another meeting. The abutters have been noticed and the Hearing was also noticed in the Conway Daily Sun. Chairman Benesh will review the five criteria the applicant must meet for the Board to grant a variance. This is all this Board will be considering. The variance will not be contrary to the public interest; the spirit of the ordinance is observed; substantial justice is done; the values of surrounding properties
are not diminished; and literal enforcement of the provisions of the ordinance would result in an unnecessary hardship, that is, owing to special conditions on this property that distinguish it from other neighboring properties no fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and the proposed use is a reasonable one. The applicant either meets or does not meet those five criteria.
Attorney Chris Meier and Christina Caldwell joined the Board; Chris will talk about how this property fits the Zoning criteria. Chris noted some of his presentation repeats the memo he sent out. This project will be the first LEAD Zero Net home in Jackson; the home needed to be angled properly to get the sun; in order to have the project with the proper angle it had to be within the setback.
Looking at the criteria, this project benefits the public interest. The porch is five feet eight inches into the setback; it encroaches ten percent into the setback; there is still over forty-“some-odd” feet of setback from the road. In comparison to other properties, there is another abutter that is also in the setback, the Caldwells have received no negative input from any abutters. The purpose of the Zoning Ordinance is to protect the health, economy, and character of the town. Chris submitted pictures; the home is beautiful, it is a project that fits within the neighborhood. He submits that the encroachment to make this Zero Net home work doesn’t take away from the neighborhood; it provides a benefit to the environment and the grid. It benefits the general welfare of Jackson.
Substantial justice is done: In looking at this property, the loss to the property owner in not granting the variance is to not be more than to any other owner in Jackson. Granting the variance shouldn’t harm one more than it benefits others. There is no significant encroachment into the setback.
The values of surrounding properties are not diminished: This property does not diminish values; it fits in the neighborhood. It has nice curb appeal going up the road, including the porch that completes the project.
As far as establishing a hardship, Chris noted the size of the lot and the way it is situated required them to have the house in this configuration to make the needs of the home met. The Caldwells had to encroach to make it work on this lot.
Chris noted, that as an alternative, if the Board can’t find a hardship, the legislature allows for Zoning Boards to grant the variance when a disability requires it. One of the applicants’ parents has Parkinson’s, the other rheumatoid arthritis and both have suffered from skin cancer; both parents of the applicants want to enjoy the house. Chris noted the owners filled out the buildable envelope due to having two bedrooms on the first floor. The wraparound porch provides for shade so both parents can sit outside rather than on the other side, which is not in the setback but in the sun. The Board is allowed to find a disability variance based on that criteria.
Christina Caldwell is from California but she wants to end up here in Jackson; their Real Estate agent was kind enough to find a lot the Caldwells could afford. The home is situated as it is due to the lot and the limitation of the building envelope. Christine also provided a sample of the solar shingles the home will have; these are not raised panels; they take the place of the asphalt shingles. As this will be a vacation home they didn’t want to be wasting energy on an empty house. The Caldwells set the house on the lot in a manner to allow this. Both of the Caldwells parents are very interested in coming; there are three steps from grade to the first floor. She does want to clarify there is only one bedroom, a bathroom and a kitchen squished into this area. There is no shade on the other side
and having the porch on that side was not as much of an asset as it is where the porch is now. Christina feels when she drives up to Jackson that this area is lovely; they wanted to carry that into the design of their house. They have had a lot of people note it looks very natural; it is a modest house, not a McMansion. The limits of the lot is why they were able to afford this. As a LEAD project, they have to have three Open Houses. Everything in the house is running off the shingles; in the spring and fall the home is continuously generating but they do have backup electricity. Both her and her husband’s parents are excited. The Caldwells hadn’t intended to put a porch on until they found out they had no shade. It’s only twenty-eight feet and they squished it all in.
Chairman Benesh asked if Chris had anything to add before he answers questions and Chris noted he does a lot of these; it’s the type of project variances are made for. LEAD in energy efficiency doesn’t exist much, not just in the town but in the area as well. Allowing this promotes the Ordinance. This is what a variance is for.
Chairman Benesh wants to know what the special conditions are relative to the other properties; he’s just talking about the porch; not the energy. Chris noted the hardship is due to the slope of the lot and how this house needed to be situated on this lot. The legislature relaxed the meaning of hardship; this is a reasonable use of the property and they need to go outside of the setback because of the condition of the property. There is a hardship due to the size of the building envelope and angle. Chairman Benesh asked if the Caldwells neighbors don’t have the same conditions on their property.
Martha noted they could have moved the placement of the house. Christina disagreed; she showed the Board where the only building envelope is and where the view is. The lot is a trapezoid; they could only go twenty-eight feet deep. Martha noted the Caldwells could have gone wider but Christina noted they didn’t know how to make it a long house and put on the solar shingles; the roof has to have a certain pitch to get the solar energy. It would have had to be a long house; it would have been an eyesore.
Jerry noted that the squarer or rounder the home is, the more energy efficient it is; but that’s not an issue for the Zoning Board.
Martha noted this is a choice the Caldwells made on the lot; her concern is that the town approved it and the Caldwells changed it. They came into the setback without asking and are now coming to the Board to make it all okay. The solar option was their choice; it was of their free will; they made those decisions; everyone in town abides by the setback. Christina stated that none of her neighbors do; Chairman Benesh noted the neighbors are grandfathered. Chris noted the Caldwells are only saying this meets the zoning need.
Dave noted the Caldwells came in for a permit and they didn’t have the porch on; then they added the porch. He asked if they got a second building permit; they had not. Christina noted they asked their builder to add the porch to get the shade. Chris noted someone else was doing the building permits then; the Caldwells should have had a permit before adding the porch but it was on by the time they got the Stop Work Order and they stopped immediately.
Huntley noted that was his only concern; Jeff was told to stop and he didn’t and the Building Inspector had to get involved. Building Inspector Kevin Bennett noted he asked Jeff a week before the Stop Work Order to stop; five days later they were still working on the porch so he had to issue a Stop Work Order.
As far as the argument for handicap accessibility, Chairman Benesh noted the access is still there without the porch. Without this porch that is currently in the setback they still have the same quality of access. Christina noted they are looking for shade; they’re looking to sit outside. The porch is on the east side of the house so it gets shade in the afternoon. Christina showed the Board how the sun comes around and shines in that area all afternoon. It shines on the mountain then all afternoon it comes through as it’s an open deck. Chairman Benesh feels this is not a question of access to the house but a question of having a shady area outside. Chris noted the porch allows people with a disability to regularly enjoy the property. Chairman Benesh thinks this should have been
considered for the original design; Christina noted they only noticed there was no shade as it went up; then it looked off kilter. Chairman Benesh queried as to there being an architect involved; there was. He then noted he believes Christina and her husband are involved in this business; Christina agreed she and her husband do a lot of LEAD buildings.
Chairman Benesh asked if anyone had anything to say; including Building Inspector Bennett and any abutters. Inspector Bennett would like to clarify some stuff. He was hired this past summer so he had to catch up; there were all the existing houses to look at as well as establishing the status of all outstanding permits. The biggest file for all the permits is for this lot. He brought up the file and reviewed its contents. The plans approved in April 2013 do not have the deck on it; there is no porch; it also appears they were submitted by the previous owner. On May 24, 2013 there is a permit request from the Caldwells with the prints. A year goes by and Inspector Goudreau came on and there was a new permit with another application; this was not signed by any town official. They are going by
these plans but no town official signed it and Inspector Bennett is not aware of any information regarding this in any town minutes.
Christina asked if Inspector Bennett is saying they submitted a permit with the previous owner’s plan; she noted; these are her plans; they did not submit the previous owner’s plans. Inspector Bennett apologized for the confusion however, the approved plan does not have the deck on it and the permit pulled on May 28, 2014 was not signed by any official. Chairman Benesh asked if it was an extension of the May 24, 2013 permit; the check is for twenty-five dollars so it was an extension. Inspector Bennett reiterated that the permit was not signed; the extension would apply to the approved plans anyway.
Inspector Goudreau did the footing and concrete wall inspection. When Inspector Bennett saw that the porch was being framed into the driveway he informed Jeff he is building in the setback. Five days later they were still working on it so he had to do a Stop Work Order. When Inspector Bennett told Jeff to stop working the second time, Jeff had another set of plans that showed the extension on the deck. The Caldwells built it and hoped to get it past us.
Chairman Benesh asked Jeff Mallet if he had any comments; Jeff doesn’t know how much he can add. The plans showed the wraparound porch; when Inspector Bennett made Jeff aware of it he told Jeff he shouldn’t go any further so he kept going as there was nothing concrete. When he got the Cease and Desist order he stopped. Jeff talked with Inspector Bennett and didn’t think it would be a problem with the exception of the setback so they kept going as far as they could. He asked if members of the Board have been up there; they have.
Chris, in closing, will say, the Caldwells meet the criteria for the variance. They hired professionals to do the work; the home fits into the neighborhood; it provides a benefit to the town and the grid. This is what a variance is for; this is not extreme; it’s only four feet into a fifty foot setback. A slight variance provides a benefit and no detriment and there are no abutters opposing it. This is why we have variances.
Chairman Benesh will keep the Hearing open while the Board has its discussion. Huntley would like clarification about how far into the setback the encroachment is; is it five feet or four feet? Chris noted the encroachment is five feet eight inches into the setback; he made an error.
Chairman Benesh noted he’s having difficulty with this being a special situation, there’s nothing to distinguish this property from others in the area. The premise is that everybody follows the rules; the hardship of maintaining the setback on this lot is the same hardship all properties in the Rural District have to follow. In terms of public interest, a single house building five feet more into the setback is not that big a thing but if every property on the street did that then there would be a substantial impact. One could even argue that there is a public interest issue.
Jerry noted the setback is for the purpose of allowing access of fire and safety equipment. If the owner wants to build in this way, the house is limited to being no bigger than twenty-eight feet. If all roads were the same depth then that’s not a special circumstance. The topography may cause the hardship of the property. He would have preferred that the Caldwells had come in with the plan as they would like to build; not having already built it; the issue was brought to them and ignored. Jerry could find space in his thinking that there is a special circumstance; he doesn’t see that it is egregious to the spirit of the ordinance.
Martha noted the neighborhood is made up of postage stamp sized lots up and down both sides; the Caldwells’ lot is not unusual for the neighborhood. Dave noted Holly’s lot is larger but this lot was 33 before and now it is 33A and 33B. The result is three small lots that are parallelograms not trapezoids. These lots drop off, too. There are others in the neighborhood that violate the Zoning Ordinance but are grandfathered.
Jerry agrees the handicap issue is not applicable here.
Dave’s biggest problem is that the approved plans were submitted without the porch and they added it without a request for another building permit. Jerry noted this application would have come to the ZBA anyway if no permit was issued. Dave noted this comes to the Board already built. Chairman Benesh pointed out that the fact that this has been built is not a factor here; it is unfortunate the Board is talking about it as it makes it seem like it is a factor. Chris noted the homeowner relied on the professionals they hired. The Board is talking about it being already built as being a factor; this should not be weighed in the outcome.
Diane McGregor asked if she could speak; she is the Realtor that sold the lot; she wants to speak to the bigger picture of the specific variance being requested. The project benefits the community of Jackson; Diane is working with the Caldwells relative to the specific house. The variance will allow that house to benefit the area. The Board is deciding what the neighborhood is going to look like; a house built as a box with no porch has a significant effect to the neighborhood. The Board believes the town will get the benefit of the house with or without a porch.
Dave noted the variance goes with the land, not the house; “putting five feet on to the house makes it look better” is not a reason for a variance. Jerry noted the change enhances the neighborhood. Martha is hearing “it looks nicer”, “it increases the value of the home”; this Board is not the House Beautiful Committee; it doesn’t do aesthetics. Chris noted the Board has to find that it detracts from the community; if they find it doesn’t detract then it meets the criteria.
Chairman Benesh would like to take a vote on each of the five criteria.
The variance will not be contrary to the public interest; will it alter the essential nature of or threaten the health or general welfare of the neighborhood. The Supreme Court held that a small violation is not material but if all in the neighborhood were to do it then it alters the neighborhood. This encroachment, of itself, is not that material however, if the Board let everybody do it, it would have a marked impact. Chairman Benesh recognizes the house looks better with the porch but the owners should have thought of that when they were designing this in the first place. Jerry noted the house looks better because of it; if this was a new subdivision he could understand the concern but the houses all around it are non-conforming. He sees nothing that detracts from the neighborhood; he feels it meets
the condition. Dave agrees the house does not detract from the character of the neighborhood. Chairman Benesh asked for a vote that the applicant has met the criteria; that the granting of the variance would not be contrary to the public interest. The vote was 3-2-0 (Matesky, Dougherty and Allan in the affirmative; Benesh and Benesh in the negative). The applicant has met the criteria.
The spirit of the ordinance is observed. Dave agrees it follows the spirit but not the letter. The vote was 3-1-1 (Matesky, Dougherty and Allan in the affirmative; M. Benesh in the negative and F. Benesh abstaining).
Substantial justice is done. The Board agreed that the loss to the individual does not outweigh the gain to the general public. The vote was 5-0-0 (Benesh, Matesky, Dougherty, Allan and Benesh).
The values of surrounding properties are not diminished. There are no abutters making claims that this would be the case; the Board has heard from a Real Estate agent about how it improves the neighborhood. The vote was 5-0-0 (Benesh, Matesky, Dougherty, Allan and Benesh).
Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship and there are special conditions of this property that distinguish it from other properties in the area. Folks have heard Chairman Benesh’s concerns; the property is not terribly unique. Jerry agrees with that however he would go back to the rulings that the court has taken a liberal view of this in the past. Jerry could see his way to approve this but he wants to hear what the special circumstances would be; it’s not been clearly demonstrated to him. Dave noted the use of solar is “special” but that’s a choice. Jerry noted it’s not special because the lots adjoining it are no more or less; he’s mitigating this because of the nonconforming nature of the neighborhood.
Martha noted there is a conflict here; the Caldwells are building a solar house which needs sunlight; now, they are saying they need shade. They can’t build a solar house in the shade, they chose to have a solar house in the sun. Jerry noted Martha is denying them the use of their property without the porch; the constraints of the depth of the lot creates a special circumstance here. Martha noted they can buy shades. Jerry is more concerned with how the property looks. Dave agrees with Jerry. Chairman Benesh wants to know what the special circumstance is that sets it aside as being different from others; the three lots are close to the same size; he wants to know if there is something unique about that property; his answer is no. Most of the properties up there are more or less the same size and
limited to what can be built up there.
Kathleen Sullivan-Head, a Realtor not involved in this property, asked how the Caldwells would demonstrate a special circumstance. She thinks what is unique is the period of time when Tyrol was subdivided. Folks were putting up fifteen thousand dollar A-Frames on postage stamp sized lots but with what folks have to pay to buy a lot no one is going to put up a one-hundred thousand dollar A-Frame. That lot was on the market for a long, long time. Folks kept going back to look at it; developers couldn’t figure how to get something nice on that lot. Kathleen noted the neighborhood is full of small houses that people have been buying and improving; the Caldwells got raw land and added to the neighborhood. She thinks the uniqueness comes with having to put the well, septic and house on this lot; it was a
big challenge that the Caldwells met.
Jerry noted what Kathleen is speaking about is the same as what the Board did with the Dickey house across the street. There was a severe limitation as to what could be done to rehabilitate it; by allowing what he did, he made a nice contribution to the downtown of Jackson.
Chris would like to add that this type of situation is exactly what a variance is for; the hardship criteria is always hardest for the ZBA and the courts. If one looks at the lots beside it, this lot isn’t really different. The court says, if the Board were to look at this strictly then property can’t ever meet that criteria. Is this a reasonable use given the conditions? What the Caldwells are doing on the lot is unique; this project couldn’t occur without the variance. This is a solar project; the condition of the project and the condition of the lot makes it a reasonable use of the lot.
Chairman Benesh noted the project without the porch is still a viable, reasonable project. It’s not as pretty but he has a hard time granting a variance to have a more pleasingly designed house. He suggests the Board members take a vote to see where they stand; the Board can make a decision tonight or recess the hearing and ask Chris or the others for more evidence of why this complies with a hardship or recent rulings. Dave wondered if the Board should talk to Counselor Malia but Chairman Benesh sees no reason to unless the Board has concerns. Chairman Benesh doesn’t feel they met this criteria.
Jerry would ask for a vote; Chairman Benesh noted he will take a vote on hardship now to see where the Board stands; the Board will take one vote in the end whether to grant or not grant the variance.
Huntley noted beauty is in the eyes of beholder; the house looks better with the porch but that is neither here nor there.
The vote was 1-0-4 (Dougherty in the affirmative, Benesh, Matesky, Allan and Benesh in the negative). The property does not meet this criteria.
Martha noted the house to the south of this house is probably twenty feet off the road. Chairman Benesh noted that property is grandfathered and has nothing to do with this application. That property is non-conforming and can stay that way; they can choose to make it conforming and they can’t make it more non-conforming.
Chairman Benesh noted if the Board votes to deny the variance tonight, the applicant has the ability to move for a rehearing. He would rather give the applicant the chance to present more information. Jerry wondered if there’d been any input from the Selectmen. Chairman Benesh noted the Selectmen are aware of the application; they can move for a rehearing; the Board is interested in their view. Jerry pointed out there is no Selectmen’s representative in attendance tonight. Chairman Benesh would like to give Chris a chance to provide more information regarding what makes this property special.
Chairman Benesh is going to continue the Public Hearing; the Board agrees to not discuss this further. The Board has to set the date and time for the continuation at this meeting; he suggests continuing this to February 25th at 7 p.m. Chairman Benesh continued the Hearing to Wednesday February 25, 2015 at 7 p.m. at the Town Office Meeting room. There will be no further public notice of this to abutters; the Hearing will open again on the 25th at which time folks can make further comments.
Public Hearing - Request for Variance, Owner Stamey, Map R18, Lot 12 Chairman Benesh opened the Public Hearing at 8:21 p.m. Stephen Weeder is representing the owners; the Board will hear from, and ask questions of, the owners’ representative as well as those who have an interest, including abutters then the Board will deliberate and either come to a decision or continue deliberations to another meeting. The abutters have been noticed and the Hearing was also noticed in the Conway Daily Sun. Chairman Benesh will review the five criteria the applicants must meet for the Board to grant a variance. This is all this Board will be considering. The variance will not be contrary to the public interest; the spirit of the ordinance is observed; substantial justice is done; the values
of surrounding properties are not diminished; and literal enforcement of the provisions of the ordinance would result in an unnecessary hardship, that is, owing to special conditions on this property that distinguish it from other neighboring properties no fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and the proposed use is a reasonable use. The applicant either meets or does not meet those five criteria.
Stephen Weeder joined the Board and Chairman Benesh asked him to use the septic map which shows things nicest. The existing house is seventy-five feet from the Wildcat; the existing porch is on the plan. The footprint for the proposed porch is different from the existing one; it is smaller. Martha asked if Stephen is taking down the old deck; he noted he is reconstructing the porch slightly different. Martha asked if the old part is being removed; Stephen noted it’s not scheduled to be removed so far but the owners are not heavily vested in that. He would have to rebuild the deck under the screen porch; he’s not had a discussion about rebuilding that section. This is negotiable; the existing deck is the same square footage as the screen porch. Stephen is in attendance tonight to clarify the
picture of the situation.
In general, what he is looking at is that a portion of the house is currently non-conforming due to the property being in the Conservation District setback. The screen porch is the same area as the existing deck; it’s the volume of the screen porch the owners are asking for.
Chairman Benesh noted, due to the footprint being the same, this should be grandfathered but the Snowflake changed that for the town of Jackson. With the expansion there the town had to solidify its description of what is non-conforming and added the extra piece of volume. Jackson is unique; volume is a powerful piece of the Zoning Ordinance. The difference is an open deck versus a closed deck. Stephen noted the owners live in Florida in the winter and are here in the summer; they would like to spend as much outdoor time as possible and a screened-in porch would help. Jerry asked if this would change the roofline; Stephen noted another roof would be built over it. Martha asked if the porch is on the same plain or being raised; it will be the same height. When asked who the neighbor is on the other
side of the river, it was noted the old dump site is directly across the river.
Stephen noted the other unique aspect of the lot is that what is hindering this is the River Conservation District. This has a seventy-five foot setback; the plan shows the one-hundred year floodplain that doesn’t come into the area where the porch goes; technically, the house or porch is still far enough away from the one-hundred year floodplain line.
Chairman Benesh noted Stephen heard input from the first Public Hearing about what makes a property unique. There are other porches up there on other hills; everybody is facing the same restrictions. Others wanted to enlarge their homes but now cannot due to the addition of the Conservation River District. Chairman Benesh wants to know what is unfair to the Stameys. Stephen noted the deck currently exists; it seems unfair to not let them put a deck on a porch that exists. Currently it is sitting on concrete blocks and he would have to put in below-frost piers. When asked if the plan is to enclose the porch, Stephen noted in order to improve the deck he would do that; it should have proper piers. Jerry noted it needs to meet the SBC (State Building Code) as well. The homeowner is wishing to enclose
an existing deck; it may improve the property but it still increases the volume in the River Conservation District. Stephen noted the existing house has three levels; the third level is finished space. With the current plans for renovation, that space, which was volume, is now going to be used for utility space. If the Board were to think creatively, it would be mitigating the volume from that area to this one. Jerry wondered if the resulting square footage is the same; there is more cubic footage in the attic than in the porch; the owner would be relinquishing volume on the third level for the volume on the porch.
Chairman Benesh asked for any input from abutters or the Building Inspector. Arthur Lanseigne owns the property across the street; he’d like to know when the River Conservation District was put in place. When informed it was sometime in 1987 or ’88, Arthur wants to know how this house originally got built then; the house was built in ’91. Chairman Benesh noted the permit was issued in ’88 but whether or not the existing property was built legally or not is not really before this Board. The Building Inspector can make a determination about that and the Selectmen can then decide to take enforcement action which could involve removing the deck. The Selectmen before have taken that action. This is more than ten years old so the owner would be able to apply for an Equitable Waiver. When it
happened is not going to be part of what the Board decides tonight. Arthur noted it’s a deck; it’s non-conforming; he wants to know how the owner can change that. Arthur’s property is non-conforming and he could only do so much; if they want no bugs, they can put a screen house out there. There is nothing different about this property.
Building Inspector Bennett received two calls; he talked to Arthur and another abutter not in attendance tonight. That abutters concern is that the work was not done right in the past and to have more stuff done in the future is not right. There is a major issue up there; the issue is what is on the table now and in the future.
(Chairman Benesh asked Inspector Bennett to keep track of issues of vagueness he finds in the Ordinance as there’s a meeting being planned after Town Meeting with the Board Chairs and the Inspectors to provide input.)
Stephen knows Inspector Bennett is trying to do a good job with his work. Stephen is here to ask for permission; not to ask for forgiveness; the Stameys are invested in doing the right thing. That’s the right process.
Martha noted there may be nobody across the way but this property is in a flood zone and non-conforming. Dave noted it doesn’t do a great deal of harm to screen in this porch but if everybody did it there would be an impact; there is also an abutter that has raised concerns. Jerry agrees; as much as he buys into the mitigation, this is arbitrary. Jerry wondered if the Board could ask them to make the porch more conforming and Chairman Benesh noted he doesn’t know, this is something for Inspector Bennett to determine. Jerry has trouble with the uniqueness of this property; it would be nice to have the screened-in porch but it doesn’t meet the criteria.
Chairman Benesh noted, as far as meeting the spirit of ordinance, there are two areas in the Zoning Ordinance that apply. There is the protection of the Wildcat River as a Wild and Scenic River as well as the River Conservation District. Chairman Benesh has the impression the River Conservation District is something the town cares deeply about and very much protecting that is in the spirit of ordinance.
Chairman Benesh has a hard time seeing any of the criteria being met. He’d like the Board to go through each of the criteria and think about it.
Huntley noted he’s not voting on this but he’d like to ask if it would be possible for Stephen to put in some bracing that would allow him to rebuild the deck; Stephen noted there’s a difference between the construction of a screened porch versus a deck. He pointed out the roof doesn’t change anything regarding conservation; Chairman Benesh disagrees. The deck is a semipermeable barrier and he’s replacing it with a non-permeable area. Stephen feels he can control the water off the roof. Dave doesn’t think this is relevant.
Bea noted he’s increasing the volume. She noted her issue is if there are forty people, all forty should be equal. Bea doesn’t care what town you look at; it’s “I like him”; “I don’t like him” and that’s why there are all these zoning issues. Chairman Benesh noted making everyone equal is why the Board is having this discussion. Dave noted the Board goes through these criteria. Ten to thirteen years ago no one bothered; today it’s not about who he likes and doesn’t like.
Jerry noted to Chairman Benesh’s point, the river’s designation as Wild and Scenic is sacrosanct. That ruling made that area very protected.
Chairman Benesh noted Huntley will not be voting due to a conflict of interest so there will be four people voting. To have a variance granted, there must be approval by three of five. Stephen has the option of letting the Board make a decision tonight but he can’t then say it wasn’t a full Board. Chairman Benesh isn’t sure it will make much difference if this is put off however, if the Board votes negatively then Stephen and the Stameys are being “prejudiced” due to having a Board of four; there would have to be a new application if they wanted to submit new information. Stephen has the option to have a continuation to February 25th at which time the Board will have its conversation and if there is new evidence that the Board doesn’t know about now, it will receive it. He may alter his
application. Stephen would like to continue this to the 25th for the opportunity to have a full board voting.
Chairman Benesh will continue the Public Hearing to February 25th; if there is any new evidence it needs to be submitted ten days before the 25th so the Board can consider it. Abutters are welcome to come back. The Board is not going to rehash what it heard today; it will only hear new information that is relevant to the discussion.
Arthur asked if, when the Board was talking about replacing the footing, it was piers or a whole foundation; Chairman Benesh noted, as this was a hypothetical, he won’t answer that. Arthur noted on Spring Street a year or two ago the owner took the pilings out to put in a full foundation and the Board denied it. Chairman Benesh noted there’s more to that then just “pilings versus foundation”. This is in a conservation area which is stricter; he thinks it was the volume not the foundation versus pilings that resulted in the denial.
Chairman Benesh asked Inspector Bennett if he could attend the meeting on the 25th; the Board appreciates his attendance and input.
The Hearing is continued and there is nothing else to discuss for Old or New Business.
Jerry Dougherty, seconded by Dave Matesky, made a motion to adjourn at 9:01 p.m. The motion passed unanimously (Benesh, Matesky, Dougherty, Allan and Benesh).
Respectfully submitted by:
Martha D. Tobin
Recording Secretary
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