Jackson Board of Adjustment
March 25, 2015
Draft March 26, 2015
Members in Attendance: Frank Benesh, Jerry Dougherty, Dave Mason and David Matesky. Alternate attending the meeting was Martha Benesh. Martha D. Tobin is the Recording Secretary.
Chairman Frank Benesh called the meeting to order at 7:00 p.m. and appointed Alternate Martha Benesh as a voting member this evening.
Approve the Minutes of February 4, 2015 Chairman Benesh asked for corrections; there were two. David noted page ten has the statement from Steven Weeder reversed. Also, Huntley’s statement was that the house looks better without the porch. There were no further amendments or corrections. David Matesky, seconded by Jerry Dougherty, made a motion to approve the Minutes of February 4, 2015 as amended. The motion passed unanimously.
Public Hearing - Request for Variance, Owner Stamey, Map R18, Lot 12 Chairman Benesh reopened the Public Hearing at 7:04 p.m. Attorney Ed Alkalay summarized the application noting the owner took in what the Board had said last time and amended the application. The owner is agreeing to take down and eliminate the existing deck and to replace it with a much smaller screened-in deck on the side of the house per the plans that were submitted. The old deck is five-hundred-thirty-three square feet; the proposed deck is two-hundred-twenty-five square feet; which is less than half of the square footage.
Ed noted the new proposal is not contrary to the ordinance; the owner is removing the existing deck and putting up one that is far smaller. It meets the spirit of the ordinance as this will be a much smaller intrusion. Substantial justice is done; the new deck is further away from an abutter now and the old deck will be removed. Values of surrounding properties would not be diminished under the original plan or this one but there will be a smaller impact on abutters with the new plan.
Ed noted in the past the rules for establishing hardship were more strictly enforced. By permitting this variance the Board will make the building and the home more in compliance with the River Conservation District. It’s a win for the owner and a win for the town. The home will become more compliant as the proposed new screened-in deck is five hundred feet further away from the river and the owner is taking off the existing deck and agrees to never put it back. This deck has been grandfathered and the owner is agreeing to extinguish that to get the benefit of the variance.
Martha asked if the owner has a right to put a patio there as it’s not a structure. Chairman Benesh noted that is a hypothetical question he’s not sure this Board should be answering.
David asked if any of the abutters had any comments; Ed did not speak with the abutters; he was simply stating that the deck was moved away so it is out of the view of the abutter. There is no proof that anybody spoke with the abutters; Ed got the comments from abutters from the minutes.
Frank is struggling with the suggestion that the special conditions that distinguish this property from others in the area is the willingness of the owner to remove a nonconforming use that is substantially greater than what is being proposed. This does make it unique and not granting the variance would be worse for the variance than granting it.
David thinks this a reasonable approach; the proposed deck does decrease the impact. He feels upholding the spirit of the ordinance is more important than the literal interpretation; this is an excellent way to solve the problem.
Jerry noted there’s another part to the prong of unnecessary hardship other than special conditions and that is that the proposed use is a reasonable use. This plan is reasonable; it would make the property more conforming than less conforming; it’s reasonable. Chairman Benesh reminded Jerry this is a two part test and both prongs need to be met. The first part is whether this property is being treated unfairly given other properties in the area. The owner has agreed to exchange the larger deck for a smaller screened-in porch however; the screened-in porch adds volume too. The swap of one nonconforming use for another nonconforming use doesn’t exist in Jackson’s ordinance.
Chairman Benesh noted the owner has not demonstrated the first prong, that owing to special conditions of the property no fair and substantial relationship exists between the general public purposes of the ordinance provisions and the specific application of that provision to the property: and the proposed use is a reasonable one; reasonable use can be obtained without the variance. He noted these owners are being treated the same as any other property owner.
Dave noted the hardship doesn’t have to be a condition of the land; it can be a condition of the building. This is a building that has a deck out to the river that the owner is taking out. It makes it less non-conforming and it is a reasonable use. Chairman Benesh noted the property still has to meet the first prong. Dave wondered if that means anybody with a nonconforming building can come in and ask for a variance. Chairman Benesh noted that each application is different; Jackson applies it by the letter here. Dave feels the benefit outweighs the letter of the law and it deserves consideration.
Jerry noted the whole building is almost entirely in the setback. Chairman Benesh noted the ordinance prevents adding this kind of use within the River Conservation District. Jerry countered that is the case unless the encroachment already exists; the ordinance seems to allow a lot of outs for the structure as long as it is a permitted use in the area and this is a permitted use. Chairman Benesh noted by approving the variance the Board will be adding a structure in the River Conservation District. Dave wondered if Jerry would allow someone to double the size of something that is existing and Jerry noted that is not what he is suggesting. In this case the owner is reducing the non-conformity. Dave wondered why they didn’t just build on the back of the building which isn’t in the River Conservation
District. Martha noted it’s possible to have offsets from lot to lot, why not within the lot.
Dave would just like to comment that, with regard to land-use regulations, courts are moving more towards the rights of the owners.
David noted the Board has criteria to meet; Martha noted getting rid of that deck is important. Dave noted if the Board denies the variance it will still have that deck to deal with. Chairman Benesh gets the feeling he is in the minority. Martha asked if the hardship could be the fact that the river is there; they can’t build it in their back yard due to the river.
Jerry read the ordinance which states nonconforming uses shall be allowed to continue and that such uses shall conform to the spirit and the intent of the section.
It was noted that the River Conservation District was put into place March 10, 1987; the house was built in 1988 but that is not relevant for this Board. Jerry noted the owners are making the building less nonconforming. Chairman Benesh doesn’t disagree but he doesn’t see the application meeting the hardship prong. He’d like to see the ordinance changed to allow this.
Chairman Benesh would like to start with taking a straw poll that the applicant has demonstrated unnecessary hardship. The vote was 4-1-0 (F. Benesh in the negative).
Regarding the other criteria:
The Board unanimously agrees that granting the variance would not be contrary to the public interest.
The Board unanimously agrees that the spirit of the ordinance is observed.
The Board unanimously agrees that substantial justice is done.
The Board unanimously agrees that the values of surrounding properties will not be diminished.
Chairman Benesh noted the Board has voted that the applicant has met all the criteria.
Dave Mason, seconded by Jerry Dougherty, made a motion to grant the variance. Martha wants to add conditions so this doesn’t turn into a room twenty years down the road. Steve Weeder noted that would require them to come in for a building permit. Dave noted the possibility of turning the porch into living space has nothing to do with what the Board is deciding tonight. The motion was approved 4-1-0 (F. Benesh in the negative).
Jerry noted that the point Chairman Benesh brought up regarding changing the ordinance; if the Board visits something often enough, maybe it’s time to discuss changes. Bob Thompson has suggested a joint meeting with all the Boards. Jerry concurs that looking at having the ability to swap non-conforming uses is something the Planning Board should look at. David noted the Planning Board just passed a change to the Zoning Ordinance. Chairman Benesh wrote a letter to the Planning Board outlining three to four ambiguities in the ordinance with the suggestion they fix it.
Chairman Benesh closed the Public Hearing at 7:29 p.m.
Public Hearing - Request for Variance, Owner Caldwell, Map V10, Lot 33-A Chairman Benesh opened the Public Hearing for 200 Tin Mine Road at 7:30 p.m. Attorney Chris Miere is in attendance tonight, as is Dave Caldwell.
Understanding that the Board had at least thought favorably on everything except the hardship prong; Chris would like to emphasize that the Supreme Court has talked about special conditions as not the physical conditions of the property; but that the property is treated differently. That is what the owners looked at. They hired Doug Burnell who did a lot of permitting in the area and asked him why this property wasn’t built-out along with the other properties. There are other properties that are similar; this application is to extend five feet, eight inches into the fifty foot setback. Talking to Doug, they learned that this property is different; it is the only one that is not built-out. The other properties have been and two other properties do have extended porches that are grandfathered. This
property wasn’t built-out as there are two issues with property. The way the road is platted, the road is not in the center of the ROW. The road fades away from the property, the red line on the map shows the travel road versus the ROW. That affects how one looks at it.
The second issue is, while there is not a legal wetland on the property now, historically there was a stream that might have precluded the build-out of this property; the other properties were built-out before the Zoning Ordinance went into effect.
The third issue, in looking at the zoning impact, is that this is the only property that is an unbuilt grandfathered lot on the road. It is impacted because it wasn’t built out before zoning. If the Board looks at how the Supreme Court looks at this, being a grandfathered lot is a condition of the lot; it is a special condition.
Dave wondered if Chris is saying that this lot has special conditions because everything around it was built before zoning; Chris affirmed this. Dave is concerned that if that’s the case then any time there is a lot that wasn’t built-out the special condition is that this was grandfathered but not built-out. Chris agreed that would be a reason or because the lot was grandfathered. This doesn’t apply to that many properties. Dave believes what Chris is saying is that no one has to meet the ordinance. Chris noted this is what a variance is for. Dave feels that’s like saying “everybody else did it”; just because it wasn’t built before zoning was put in place, the owners still have to look at it. Martha wondered if this variance is granted will it be the same case for all the other lots
on Tin Mine Road; she was reminded this Board doesn’t set precedence.
Jerry feels the special condition of the property is that, under current subdivision law, it would never have been subdivided. Chris feels it’s a confluence of all the arguments he’s made; it’s closer to the road and the record shows it had a historic wetland. Chairman Benesh asked if the area is a wetland now and Chris noted the stream has dried out. Jerry noted this could have been a seasonal stream that was redirected. Martha wondered if it could be a wetland again. That’s not for the Board to consider; it’s not a wetland currently.
This porch has already been built; Chris was asked how that happened; the owner had advice from the Building Inspector. As Inspector Bennett was in the audience, he was asked to give a summary of how this situation came to the Zoning Board tonight.
Inspector Bennett came on the job mid-summer (2014); the footing and concrete walls were being poured. At no time did anyone mention the porch and there were plans that didn’t show the porch. There were two sets of plans; one with the porch went to bid to builders. Those weren’t the plans that were submitted and approved for the Building Permit; the approved plans are without the porch. Inspector Bennett drove by saw the porch stopped in and said “What’s up?” Inspectors Goudreau and Bennett, as well as the architect who drew the plans, knew the porch was in the setback. Inspector Bennett stopped in and asked Jeff Mallet to stop work on this until Inspector Bennett could figure out what was going on. Jeff said okay and Inspector Bennett left it at that. He stopped back in later on
and they were continuing to build. Inspector Bennett informed Jeff that Inspector Bennett now had to write a Stop Work Order and that Jeff had to stop. At no time when the footings were going in for the walls did anyone ever say anything about the porch; they had plenty of time to do that. Jeff told him this is the set of plans he got and this is what he is building. Inspector Bennett told Jeff to stop building and he kept building. Jerry pointed out that while that may be distasteful; it has nothing to do with what is before the Board tonight. Chris also wondered how that impacts the owner who was being advised by the town’s former Building Inspector; bad advice shouldn’t impact this application. David noted this doesn’t impact the discussion tonight; Chairman Benesh noted that while this is interesting, it’s not relevant to the application.
Chris also noted the building envelope was substandard in that it is only twenty-five by seventy-five feet. Chairman Benesh wondered why that is a special condition; Chris noted it is different than the other lots within the District. Chairman Benesh noted this is an unbuilt lot; it’s not unique. David wondered how this lot compares in size versus the others. Chairman Benesh noted the lots are about the same size on that side of the street. Chris noted the lots across the street are bigger; Chairman Benesh pointed out the lots on the plan are all around a third of an acre; they wouldn’t be permitted today; they are too small.
Chris noted this would be the first LEAD platinum home in Jackson and in the area; it will be a zero impact home; the home produces as much energy as it needs. The angle of the home has to be set this way for the solar shingles. Chairman Benesh wondered what that has to do with the presence or absence of the porch and Chris noted it has to do with the alignment of the shingles on one side; the porch is needed to access the house. Martha doesn’t see that. Dave also wondered if the building is pointed in the correct direction what that has to do with the porch; the solar panels would exist without the extra square footage. Chris noted the home has to have a step to get access; the porch is for ease of access. The property next door does the same. Chairman Benesh noted this porch has stairs as well
and the Board heard previous discussion about there being two parents that can’t come in stairs. Chris noted there are fewer stairs with the porch; the original stairway is six steps up; this is more flush.
Martha asked what the square footage is of the house; it’s three stories. It may be a big house but it’s only two bedrooms as the owners couldn’t get septic approval for three.
Chairman Benesh had everyone look at the pictures which show the deck off to the right, in the setback. This was not on the original plan. The abutters have similar porches and nobody has made any argument regarding this causing a change to surrounding properties values. The Board agrees there is no diminishment of values; there are two professionals in the audience if the Board needs someone to speak to that.
Chairman Benesh has a hard time with many of the arguments on hardship, especially because it was unbuilt when zoning went into effect. This is not a pillar of hardship. Also the travel way on the road is not substantial enough to have much meaning. Jerry noted the setback was changed from twenty-five feet to fifty feet in 1974. The Planning Board struggled with creating open space; the RSAs didn’t provide for that. Chairman Benesh noted the setback is from the ROW not the traveled way. The stated purpose of the setback was for snow removal. The property has a driveway regardless of the porch so it won’t impact snow removal; there’s adequate road expansion and access for emergency vehicles. Chairman Benesh wondered why Jackson has a fifty foot setback; it’s excessive. Jerry
noted the purpose of the setback is for snow removal; he believes the spirit of the ordinance is met. The purpose of the ordinance is to maintain the setback.
Dave is really uncomfortable with the theory of hardship or uniqueness being that everybody else built before. Chris may be right but Dave is not a lawyer; if this Board is thinking about accepting this argument it needs guidance from its attorney. Martha noted there are a lot of other sub-sized lots that haven’t been built. Chairman Benesh noted no one on the Board is making an argument that they’ve met the ordinance. Martha is not hearing hardship; this is not unique; this is not the only substandard lot; there are a dozen up there. Chris would argue this doesn’t have to be the only lot; some others might qualify or not.
Jerry would like to hear in a concise way what the uniqueness is. All seven of the lots are on a slope. It had a historic wetland up to 2000; no one could build there due to the wetland. The property is closer to the road than other properties. Jerry wondered if the uniqueness could be the slope of the property that requires a porch for proper egress. Jerry feels the applicants has met the criteria for hardship.
Dave wouldn’t argue that they didn’t meet the criteria for hardship but he wants to hear from Counselor Malia. This is a unique way to establish hardship; it would be nice to hear from Jackson’s counsel whether this is on the money or not. The applicant comes here with an attorney that is paid by the applicant; that is why Jackson has an attorney; this Board needs its attorney to answer what establishes a hardship. He would have to vote against this tonight because he doesn’t have the information he needs. He thinks the Board should continue the Hearing and get Jackson’s attorney to review the reasons presented. David made the point at the last meeting that he thought a review by Counsel would be a good thing.
Martha believes if the Board turns this down the owner is going to take Jackson to court; the Board might as well do it now. Chairman Benesh is ready to say no tonight but other members want information from Counsel; he would entertain a motion to do that. David Matesky, seconded by Dave Mason, made a motion to continue the Hearing to get advice from counsel. Jerry doesn’t support this; the decision is this Boards; the attorneys give both sides and the Board members decide. The Board has both sides of the issue tonight. The motion failed 2-3-0 (F. Benesh, M. Benesh and Dougherty in the negative).
Chairman Benesh wondered if the Board wants to try to make a decision tonight. Martha wondered if the Board would be denying the owner the use of his property if the Board denies the variance; this would not be the case; they have a house. Jerry wondered if the Board rules against this the porch will have to be removed. That is a possibility.
Chairman Benesh asked for a vote on whether hardship has been established; the vote was 2-3-0; the Board doesn’t feel hardship has been established (F. Benesh, M. Benesh and Matesky in the negative).
Granting of the variance is not contrary to the ordinance passed 3-2-0 (F. Benesh and M. Benesh in the negative).
The spirit of the ordinance is met passed by 4-1-0 (M. Benesh in the negative).
Substantial justice is done passed by 3-2-0 (M. Benesh and Mason in the negative).
The values of surrounding properties will not be diminished passed 5-0-0.
Chairman Benesh noted it appears that there is a majority that is unwilling to grant the variance. He would ask for a motion to grant the variance and then members will vote in the negative.
Chris asked the Board to wait a minute; the owners asked for a disability variance which then takes the place of hardship. The Board can grant the variance on that ground along with under the four prongs that it found were met.
Chairman Benesh was going to treat that as separate test. There are two parents with disabilities; one has skin cancer and the other has late-stage Parkinson’s. The Board is able to grant the variance to somebody that uses the property with a disability just for the period of time that person is using the property or it can grant the variance without that condition. Reasonable accommodations for a recognized disability can be made but only while there is a continued need to use the premises. David asked if the parents pass away, would the owners have to ask for a new variance and Chairman Benesh noted the Board could make a condition that they remove the porch. He’s not ready to make a decision on this. He wondered how often the parents intend to use the property. His understanding is that
this is meant to accommodate them. Jerry noted the Board has the power to attach conditions. It can make the porch be permanent as an existing condition of the property or make it go away. Jerry is trying to get his head around how to make a decision about making it go away; he needs guidance. Martha wondered if at some point in time, with Parkinson’s, they are going to need a ramp over the stairway; no one know. Chairman Benesh would have thought the architect would have taken the needs of the owner into consideration so that the original building permit would have had this porch.
David thinks the Board should continue the Hearing to give the Board the opportunity to research this by asking for a statement from the owner as to where the parents live and how often they plan to be here. The variance can be granted for someone who resides in or regularly uses the property; what is “regularly”? The Board doesn’t have enough information. The Board should take the opportunity now to get that information from the owner. It is relevant as to where they live and how often they are expected to visit. Jerry would further ask about the life of the condition; should there be the option to make the condition permanent. Chris noted there is no case law on this point but it is public policy to encourage accessible housing.
Dave Caldwell joined the Board. He noted the person with Parkinson’s is his mother; she is officially disabled in Rhode Island. She plans on using the porch as a place to come and sit while using the property. The first floor was made accessible and the porch provides the only shade. They are not yet in need of a ramp however if one becomes necessary it will be to code. The structure of the property meets the setbacks and is environmentally right. Chairman Benesh noted Doug was asked to provide more information on the parents, not to go into more discussion on the property.
The next date for the Board to meet is April 15th; the Board voted 5-0-0 to continue the Hearing. This will provide enough time to do research on this; the porch is already built and the house is moving forward; this can wait. Dave noted if there were a ramp so the parents can get in the house then this case wouldn’t be an issue; the variance could be granted under the disability. Martha noted every one of us is going to get old; we all have disabilities. If the parents owned the house she would feel stronger. This doesn’t sway her heart; everyone needs access everywhere. Chairman Benesh would also be ok with a ramp. Jerry is concerned with the permanence of the porch; when the person it was built for passes, does the owner have to remove it. The Board can make
that a condition but no one is leaning towards that. Chairman Benesh wants to make sure everybody goes up to look at this again in the context of what is being discussed. He will try to include everyone in a conference call with Attorney Malia.
Chairman Benesh continued the Public Hearing to April 15, 2015 at 7 p.m.
Dave Mason, seconded by David Matesky, made a motion to adjourn at 8:37 p.m. The motion passed unanimously.
Respectfully submitted by:
Martha D. Tobin
Recording Secretary
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