Lyme Planning Board Minutes
May 11, 2006
Board Members & Staff: Present: Freda Swan, Chair; Jack Elliott, Vice-Chair; Dick Jones, Selectboard Representative Jeanie McInytre, Member; John Billings, Member; Don Dwight, Alternate; Ben Kilham, Alternate; Stephanie Clark, Alternate; and Victoria Davis, Planning & Zoning Administrator Absent: Dan Brand, Alternate Public: Jim Poage, David Roby, Don Metz, and Ben Barrows
Item 1: Public Meeting to Discuss “Lot” Definition and Mandatory Merger: Victoria Davis distributed a summary sheet she and Jae Whitelaw, Town Counsel had prepared (see attached) to guide the Board in a discussion. Jeanie McIntyre suggested a correction to the summary to clarify that lots created by an approved subdivision do not merge. Town Counsel had made the Board aware that the merging of conforming lots as provided in the zoning ordinance is not enforceable as determined by court rulings. She suggested the Board develop a policy of interpreting the definition of “lot” prior to amending the zoning ordinance so the Town would be in compliance with these rulings. She also pointed out that there were other mergings according to the zoning ordinance which may or
may not be enforceable as there are no relevant court rulings. Victoria Davis explained an actual scenario of a person owning property and purchasing abutting property for a family member to build in the future. The merging made them one lot and they cannot be subdivided as the property could not be made into two conforming lots.
The Planning Board discussed various issues relating to the history and implications of the policy. Although the definition of “lot” in the Subdivision Regulations did not address the mergers until 1989 when zoning was adopted, David Roby felt contiguous lots in common ownership have been merged since since 1970 to 1971. Only lots with identical ownership are merged. If one lot is owned by one spouse and the abutting lot owned by the other spouse, they are not considered in the same ownership and are not merged. Lots could be purchased by corporations created for the purpose of avoiding merger.
Board members questioned whether landowners had received adequate notice at the time that the merger provisions went into effect. Although there were public hearings prior to the adoption of zoning, people may not have understood how this would affect there property rights. Freda Swan, David Roby and Don Metz recalled that the zoning ordinance had been discussed and debated point by point as it was developed. However, no town counsel had ever reviewed the zoning ordinance in its entirety until 2005. It was noted that the zoning ordinance provides for the development of land reserved for that purpose by pre-zoning conservation easements even when they are located within conservation districts; perhaps pre-zoning lots should be treated with similar leniency.
The objective of merger provisions is to reduce the number of non conforming lots over time. However, if a nonconforming lot is bought by an abutter it will merge. If not, it is grandfathered as a non conforming lot. Is this fair to the abutters who may wish to control or develop the lot? Do abutters understand that they may have fewer rights than other prospective buyers?
Carole Bont explained the history of tax assessment in Lyme for building areas and “rear acres.” The State requires that the lots are assessed in the same way they are considered in planning so, for example, a single lot is only taxed as one building lot. If the merger policy were relaxed, some taxpayers would see assessed values rise. Some people who had been paying taxes on one lot might find that they had more than one.
It was noted that it could be difficult to determine lot status by looking at deeds. Many ownerships are the result of acquisitions of separate tracts of land by multiple parties over a period of many years. How far back would the Planning Board look to determine whether a person owned more than one lot? If the policy is changed now would it be unfair to those who have sold “merged” lots at lower prices than if they were separated?
Board members had questions about the case law and the practices of other towns. Stephanie Clark volunteered to review the case law to see what specifics might apply to Lyme’s situation.
There was considerable discussion between the Board and attending public. The consensus of the Board was that it should not make an interim policy at this time instead of changing the zoning ordinance by public vote at town meeting.
Victoria Davis stated if there is any question prior to changing the zoning ordinance, it could be appealed to the ZBA. She added that Town Counsel has previously advised the ZBA that if the zoning ordinance has any part that is not legal, they should not abide by it.
Freda Swan stated she would support the ZBA in making a definition. Jeanie McIntyre suggested the Board begin the process of formulating an amendment. Stephanie Clark volunteered to look through the case law to help draft the amendment. Freda Swan asked the Board if they felt they should not make the policy now, but rather wait for a formal amendment. There was an informal consensus not to set the policy at this time.
Item 2: Aquifer Study Discussion: Jeanie McIntyre will draft a letter making a request to hydrogeologist consultants to study the Lyme Common area within a budget of $10,000.
Submitted by,
Victoria Davis
Planning & Zoning Administrator
Item 3: Approval of Minutes: The Board discussed the minutes. There was a general feeling that the minutes could be less detailed. Approval was deferred.
Item 4: Excavation Regulations: The Board decided to postpone review of the excavation regulations.
Item 5: Other Business: The Board noted that Curt Vinson’s submittal was complete. The Board felt that no hearing was required. The information will be put on file. Freda will send Curt a note thanking him for submitting the information. Dick Jones said that the Conservation Commission has selected Watershed to Wildlife to perform the inventory work. A $4,500 grant from the State’s Moose Plate has been awarded. Freda Swan noted that the Gray subdivision plat had been signed. It was noted that the recent submittal from Crossroads Academy would be discussed on May 25. Victoria Davis has compiled some suggested changes to the Subdivision Regulations. These will be discussed at a future time.
Meeting adjourned at 9:30 pm.
Respectfully submitted,
Jeanie McIntyre
Tentative Meeting Agenda for May 25, 2006:
7:30 Crossroads Academy Site Plan Review Public Hearing
8:00 Excavation Regulations Amendment Discussion
Tentative Meeting Agenda for June 8, 2006:
7:30 Meeting with Peter Mulvihill, Lyme Fire Department – hydrant locations
Definition of “Lot” and Mandatory Merger Discussion
Public Meeting Discussion – May 11, 2006
History:
1. In an undetermined year prior to adoption of zoning in 1989, the Town merged all contiguous lots in the same ownership, including those separated by a road. Two developed contiguous lots and lots in an approved subdivision were not merged. While we believe notices were sent to lot owners, there is no record of notice, other than the merger requirement in the zoning ordinance that would have been reviewed and approved at Town Meeting.
2. This automatic merger provided a tax advantage to the owner because all merged properties were taxed as one building lot rather than as several building lots. However, development rights of the individual lots were lost; if the owners had wished to develop the merged lot, they had to obtain subdivision approval.
3. In late 2005, Town Counsel at Mitchell and Bates reviewed the Town’s zoning ordinance and determined that the automatic merger requirement is not legally enforceable in some situations because of its impact on property rights.
4. Town Counsel explained that the courts have addressed the legality of merger requirements in other towns, and it appears that it is lawful in some situations but not others, and it is not clear whether it is lawful in still others due to a lack of clear court rulings. The following chart indicates the various circumstances that can arise. Town Counsel advised the safest option is to NOT merge any separately described parcels, except vacant, nonconforming lots.
Example of Contiguous Lots in Common Ownership Merge Not Merge Unclear
Lots in approved subdivision X
Lots with principal structure on each (conforming or non) X
Conforming vacant lots X
Nonconforming vacant lots X
Conforming vacant lot & nonconforming vacant lot X
Conforming vacant lot & developed nonconforming lot X
Conforming developed lot & nonconforming vacant lot X
5. The Planning Board will determine how the automatic merger requirements will be applied until the zoning ordinance is amended again at Town Meeting in March 2007. The “Not Merge” category above is a definite, and the Board must determine how to deal with the remaining categories
6. If there is any disagreement with the Planning Board’s decision, an appeal can be made to the ZBA which will determine how to apply the automatic merger requirement.
Considerations:
1. Taxes. Owners of the merged lots have been paying taxes as if the merged lots were only one building lot. Separating these lots will increase the taxes substantially as it will create multiple taxable building lots. On the other hand, owners may wish to separate the merged lots so they can be developed without further subdivision. For example, a family who had purchased property next to their home to build a home for extended family in the future would have to obtain subdivision approval to do so if the lots are considered merged, and could not obtain subdivision approval unless both lots meet current zoning ordinance requirements.
If the lots are separated into the original two lots, a house could be built on the purchased lot even if it does not meet lot size requirements.
2. The town does not have documentation to help in easily determining which lots were merged over the years. It is believed the earliest tax maps were made in 1979, after the merging began. Only an evaluation of the lots on a case by case basis will reveal which lots had been merged.
3. The only way to determine if a “lot” is conforming or not is to determine its dimensional conformity according to Table 5.1 of the zoning ordinance. This includes calculating the “lot size.” The “lot size” is not available for every “lot” in Lyme—it is currently calculated on a case-by-case basis as owners come in for zoning or planning approval. However, Don Cooke has volunteered to develop a map of every lot in town to help the Town determine “lot size” of every lot in Town. He is working on it now and has made substantial progress, though it is not known when he will
finish as this is a volunteer effort.
Procedure:
1. ALL property owners will be sent a certified letter explaining the Planning Board’s decision and the reason why the decision had to be made. The owners will be asked to sign and return a document stating whether they would like to “un-merge” or separate their parcels into the original multiple lots that existed prior to automatic merger or leave the lots merged into one lot as they currently exist. They will be told that if they do not respond, the parcels will remain merged into one lot. The tax ramifications will be explained in the letter. A deadline for a response (such as 90 days) will be given.
2. An owner who would like to separate the parcels of a merged lot into separate lots will be required to provide evidence that the merged lot used to be separate lots that were automatically merged under the zoning ordinance. This evidence is frequently found in the lot description contained in the deed(s) to the lot(s).
3. If the Planning Board determines that only conforming lots will be “unmerged,” any parcels which are requested by the owner to be “unmerged” will be reviewed to determine if the parcels meet the dimensional requirements of Table 5.1 of the zoning ordinance.
4. After the deadline, another letter will be sent to those not responding to verify that their lot will remain merged.
5. Future requests for “unmerging” will be denied.
6. Copies of the letters, signed forms and proof of mailing for each lot will be kept in the property tax file the town already maintains for each taxable lot in Lyme, in order to document the status of each lot.
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