 |
Lyme Planning Board
Minutes: November 8, 2007
Public Hearing
Board members: Present - Jack Elliott, Chair; Dick Jones, Stephanie Clark, John Billings
Alternate members: Present - David Roby, John Stadler
Staff: Adair Mulligan, recorder
Public: Michael and Barbara Woodard, Dorothy W. Sears, Jr., Fred Phillips, Cristin and David Roby, Waye and Violet Wilmott, Terry and Pat Baxter, Wayne Pike, Simon Carr, Tom Toner, Chuck Toner, John Mudge, Charles Ragan, Jim Poage, Ross McIntyre, Wayne and Shirley Tullar
Chairman Jack Elliott opened the meeting at 7:03pm and explained that the purpose of the public hearing is to discuss the definition of “lot.” The Planning Board has been working on zoning changes, and has been concerned about this issue for several years. He provided copies of the current language in the zoning ordinance to those in attendance, and said that since well before zoning was adopted in 1989, any two adjacent lots owned by the same person have been automatically merged into one lot. Town counsel has advised that there are some instances in which lots cannot be so merged, such as where two conforming adjacent lots both have dwellings. The Zoning Ordinance recognizes this. Jack continued that in cases where two adjacent non-conforming lots (“lots of record”) without structures have
been merged, this merger has held up in court. There are differing opinions about what to do if the situation involves one conforming and one non-conforming lot. Because of this confusion, the 2007 Town Meeting voted to stop automatic lot mergers.
Jack Elliott reiterated that the Board’s goal is to get public opinion on this matter, by focusing on the end result. He explained that there are possible tax benefits to landowners in merging lots, especially when they no longer need to pay taxes on two buildable lots after they are combined. If a conforming and a non-conforming lot are merged, the result is a conforming lot. In the Mountain and Forest District, for example, there are many merged lots. Some lots have multiple deeds, and managing them could prove problematic for the town.
Jack Elliott then asked members of the board to contribute their opinions about the issue. David Roby said that the merger clause is there to ensure that there are as few non-conforming lots as possible, so that the non-conformity eventually disappears, which is the goal of zoning. The reason for the change at 2007 Town Meeting, he said, was because lots could not be merged unless they are owned by the same person, yet there are many lots ostensibly owned by a couple where the husband actually owns one, and the wife (or a trust) owns another. Not all landowners are aware that this mechanism could be used to keep lots from becoming merged. David continued that if a landowner wants to merge his/her lots to avoid paying higher taxes on two conforming lots, he/she can do so.
Lots approved through the subdivision process are not merged, even if they are owned by the same person.
Stephanie Clark said that the eventual goal of zoning is to eliminate non-conforming lots, so there is no need to have an automatic merger. She noted that the town cannot go back to find out what lots were merged in the past, since many of the lots existed before the tax maps were created. Dick Jones said that he had looked into types of lots, and came up with a list of 32 kinds. He said that some people feel that zoning is a taking of private property rights, and that it can be difficult to identify when that line is crossed. Tom Toner advised that owners could bring in their old deeds if they would like to separate their lots. He commented that the road frontage issue has kept some Lyme people from having their children live with them on their property. Ross McIntyre
recalled that on land he now owns, a land-locked piece was added in the 1850s to the home property he eventually bought, and he wondered how far back such splitting should go. He suggested it would not be wise to see a lot of new lots created in formerly land-locked pieces. Simon Carr said that if a lot is land-locked and has no road frontage, it cannot be developed.
Dick Jones said that there is a separate procedure in New Hampshire law (not in the Lyme Zoning Ordinance) for Class V roads. Responding to the question of how far back lot separation could go, he said that town counsel has advised that a time period could not be restricted. Stephanie said that there could be a threshold requirement, such as ability to show that separate deeds existed before the merger. She asked for suggestions of what a process would be, such as allowing people to go to the Zoning Administrator to unmerge the lots, waiving as many fees as possible (except for those out of the board’s control, such as survey fees).
Jim Poage reported on a case heard by the ZBA a few days earlier, where the Mathers had merged two lots, one tiny and one large. He asked if the lot of record would be restored in this case. The ZBA granted a variance. He asked if two well-defined lots already had a survey, would a new survey be required? Jack noted that instances where two lots were voluntarily merged were not the focus of the evening’s discussion. Dick said that it is important to distinguish whether a merger is voluntary or involuntary. John Mudge said he thought it was a bad system to use ownership by different family members, because this trick is not familiar to all property owners. John Billings responded that this is why the Planning Board proposed putting a stop to it. Simon reminded that
the merging started long before zoning, and dates at least to the 1970s. Ross said he received one tax bill in 1969 for several lots. Dick said that the state septic regulations made some lots unbuildable at that time, while others increased in value, so it was advantageous for people to merge such lots to bring the taxable value down. Also, some owners received multiple tax bills, and wanted only one.
Dorf Sears said that she has several lots, all part of one property. She noted that some people did not receive notice of the public hearing, and that the board’s activities should be publicized in the Church News. Jack apologized, and said that the board had intended to send them to each and every property owner in the town. Ross asked how many new lots there could be, noting that the intention of the Zoning Ordinance is to try to have the town grow in a way the town wants to see and can afford. Jack said that this cannot be known, since if the status quo is maintained, there would be no change. He said he asked the town office staff to describe an impact of changing the ordinance, but was told there was no way to know. Ross said that if owners are allowed to
un-merge their lots, it is conceivable that someone could come in with 50 non-conforming lots, which could have an impact upon the town. John Billings asked whether the town should decide whether to merge lots in the future, and then decide what to do about the past. He added that people can and do sue the town, but that a retroactive un-merge law could not be put in place.
Dick said that the most problematic situation is a half acre lot, where the driving issue is wastewater disposal. With many tiny lots like that, there could be pressure to build a wastewater treatment system. Charles Ragan said that many lots may be unbuildable for other reasons. Shirley Tullar described a situation at her farm where the town merged property even though there were separate deeds with a state road separating the parcels. Stephanie said that the courts have treated this situation in conflicting ways, and that the town needs a process to apply evenly and fairly, although she felt that there must be a mechanism for the board to exercise some discretion.
Michael Woodard said that there have been inequities, some of which he has personally experienced, but suggested reinstating the merger with a time period within which a landowner could affect the outcome. Buyers could be notified at closing. For past mergers, he suggested setting up an expedited process for lots that meet zoning as conforming lots. Chuck Toner said that many of the lots were conforming before zoning. Dick explained that before zoning was enacted, there was no concept of conforming or non-conforming, but that “buildable” and “non-buildable” lots did exist. John Mudge suggested that if a pair of lots is un-merged, an approved septic design should be required, and the un-merging should be limited to those lots with deeds or those
that were merged after zoning was adopted. He added that there should be a time limit on un-merging. Dick said that this could not be done legally. David Roby said that what John suggested is reasonable, adding that a recent Supreme Court decision indicates that a merge clause may be acceptable.
Tom Toner asked why a restriction should be put on the time allowed for un-merging, and advised keeping the process simple. Shirley noted that every time someone sues the town, it costs the taxpayers. Dorf asked that the school district meeting be held during the day when people can come out for it, such as on the same day as town meeting. Jack invited the public to attend the future public hearings on zoning changes. The audience and board all agreed that landowners should be notified of the status of their lots, so that merging would no longer be involuntary. Jack then posed a series of questions for the attending public. On the question of “should two non-conforming undeveloped lots of record be merged in the future automatically, after notification of the
landowner?” the audience was divided, with more people favoring the idea than rejecting it (7). On the question of “who feels no lot ever should be merged except at the owner’s request” nine people voted in favor. Nearly all in the audience approved of the idea of allowing owners to un-merge lots under some scenario. Dick Jones noted that only lots that would create buildable lots should be created if lots are un-merged. Chuck Toner pointed out that septic systems can be built on adjacent lots with the owner’s permission.
Dick Jones proposed making a policy for a zoning hearing. Michael Woodard advised that there should be a process developed. David Roby pointed to a deed for land his company owns in East Lyme that includes 15 parcels under one ownership. Charles Ragan said that the town should be protected but so should long-time residents such as Vy Wilmott. David said that her situation is complicated but doable because the lots were owned separately. The un-merge process must confirm that both lots are buildable, although not necessarily conforming. Simon offered his opinion that there are almost no buildable lots in East Lyme because there is so little road access. David expressed confidence that variances could be obtained. Tom Toner said that if lots were merged under past
ownership, the planning board should decide whether they should be un-merged. Jack reminded that this would all be discussed again in a public hearing.
Dick Jones offered a motion for language for a draft zoning amendment, but it was not seconded, so the motion died. The public hearing was adjourned at 8:47 pm on a motion by Jack, seconded by Dick.
Respectfully submitted, Adair Mulligan, Recorder
| |
