Lyme Zoning Board of Adjustment
Minutes: May 20, 2004
Board Members: Present -Walter Swift - Chair, Jim Poage - Vice Chair, Ross McIntyre, Alan Greatorex, George Hartmann
Board Alternates: Present - Jackie Glass, Margot Maddock, Marcia Armstrong
Staff: Present - Vickie Davis - Zoning Administrator, Absent - Adair Mulligan - recorder
Public: Stuart Karon, Rod Finley, David Rayment, Bernie Waugh, Tom Turkington, Dave Roby, Elaine Neal, Don Elder, Julia Elder, Dick Jones, Shawn Goerke, Peter Tausanovich, Chris Tausanovich, Bob Barnum, Marianne Alverson, John Andersen
At 7:30 pm. Chairman Walter Swift called the meeting to order. Corrected minutes for April 15, 2004 were distributed, other changes were noted. Jim moved to approve the minutes as corrected, Ross seconded. Minutes were approved by unanimous vote. The board discussed Rules of Procedure: Article II, OFFICERS, sections II.1, II.2 and II.3 and Article IX. Walt handed out proposed motions for amendments to the Rules for consideration. AMENDMENTS. Walt moved to table this discussion as we were running into time for the first hearing. Alan seconded.
Alan recused himself from the next case, Walt asked Jackie to sit and Marcia to take minutes.
Pathways Consulting, Applicant for Arthur Stout, Permit Application 03-108, M409/L45
Proposal: Build a new 4,100 foot driveway at 216 Dorchester Road.
Arthur Stout proposed to construct a 4,100 foot driveway from Baker Hill Road to a residential site, using an initial short section of old Baker Hill Road to access his lot in the Rural and Mountain and Forest Districts. This requires special exceptions to encroach into the Steep Slopes, Agricultural Soils, Wetlands and Shoreland Conservation Districts under sections 4.61, 4.63 and 4.64. It also requires a special exception to exceed an 11% slope under sections 4.53 and 4.62.
The hearing history was reviewed: first hearing December 18, 2003; February 19, 2004 continued at request of Pathways Consulting due to lack of confirmation of ZBA attendance; March 18, 2004 hearing continued at request of David Roby due to travel plans; April 15 - continued to allow further discussion. New material was passed out: a letter from Robert Kilmarx (abutter), dated May 17, received May 18; a letter from Richard T. Holmes of Lyme, dated May 18 (wildlife ecologist); a letter from Patrick W. Fairbairn, (wildlife biologist of Normandeau Associates) dated May 20 to David Roby; and an annotated copy of an article fromm Nov/Dec 2001 Wildlife Journal in the Fountain Forestry report from David Roby.
David Rayment, representing Arthur Stout, summarized items expressed in his letter of May 13 to the Board and in the May 10 letter from Seth Clifford to Arthur Stout. He reiterated that the applicant is seeking special exceptions and not variances; that the impact on the districts will be minimal. Possible erosion problems have been addressed. A State Wildlife Biologist and a Forester both have walked property and say impact will be minimal. Important thing to keep in mind - it will not be visible and will not harm the area. Stressed the fundamental right of property owner to use his property as he sees fit. Mentioned that he had just heard that UVLT may be interested in acquiring the property. David Roby has an interest in
UVLT.
David Roby said though he had talked to Jeanie McIntyre there had been no substantive discussion with UVLT. Swift polled three Board members with a potential conflict of interest due to their associations with UVLT (Ross, Jackie and George) to determine whether they had any knowledge of or interest in the potential transaction involving UVLT. All stated that they were unaware of the discussion between Roby and J. McIntyre. Noting that there was no conflict of interest, Swift recommended that they remain as sitting members for the case.
Rod Finley spoke to the agricultural soil district. Though a very small portion will be affected, Stout has agreed to put 75% of the ag soils into a conservation easement.
Don Elder, abutter, has no problem with proposal. In fact would like to have the hill opened up. He says the deer are now lower down.
Bernie Waugh, representing David Roby, handed out his Response to Attorney Rayment’s Rebuttal, dated May 20, 2004. He says that what Rayment says in essence is that the low density planned for this 200 acre property makes it unnecessary for strict adherence to ordinance. Waugh repeats that the Fire Chief addressed the wrong standard. The ordinance speaks to hazard to town services - not house residents. Waugh notes that there will be damage from 1875’ of driveway going through deer yard (75,000 sq. ft.) He observes that Clifford argues in his forestry plan that they will mitigate any damage - but he notes that the ordinance doesn’t say anything about mitigation.
David Roby said that Fairbairn says there will be damage. Walt asked if Fairbairn had seen the property. David said yes, he spent 1/2 day there. Showed driveway map again- showing sections where above 11% grade - because George was absent last time and didn’t see it.
Walt asked Don Elder about location of deer and asked if he knew where the house is going. Don said map is old and deer have moved down.
Dave Roby says Fountain Forestry mapped this year. He and Fairbairn saw abundant evidence of deer.
George asked Waugh about his statement about Stout not being able to treat his house site as a given (in his letter). State constitution states property owner has right to use his property as he sees fit. Waugh maintains that you must look at the property as a whole. Does regulation severely affect value of property? Applicant hasn’t demonstrated that there is no feasible alternative location.
David Rayment responded that the section of the ordinance of the ordinance that refers to no feasible alternative location (4.61) refers to access not house. Again, cited unreasonable interference with property rights.
Jim moved to go to deliberation, and to table deliberation till later in evening. Ross seconded.
Alan back to sit on board, Jackie to alternate status.
Elaine and Frank Neal , Applicants, Permit Application 04-022, M201/L63
Proposal: add a 474 sq. ft. stone patio
The patio will add additional coverage into the Wetlands Conservation District.
Elaine Neal says the Conservation Commission gave their approval. It would be a stone patio with the stones spaced for drainage. Will drain first into field then into wetland.
Tom Turkington, abutter, in favor of application.
Dick Jones, selectman, said the area has been thoroughly compacted over the years so it has lost the normal porosity of land around wetlands.
As there were no questions, Jim moved to deliberate. Alan seconded.
Walt - how does it affect 10.60 E. Have to be clear about defining the hardship in granting a variance. Board agreed that the modification would improve the drainage in the proposed area.
George felt there would be no damage of flagstone set in sand. Walt and Alan agreed that 10.60 D and E go hand in hand. Alan thinks that if had been included in porch application it would not have been rejected.
Ross moved that the board grant the variance under 10.60 to add a 474 sq. ft. stone patio as shown on the application. Conditions to include that stones be spaced to allow for adequate drainage. Jim seconded the motion and it passed unanimously.
Shawn Goerke, Applicant, Permit Application 04-024, M402/L91
Proposal: to open a towing business at home at 123 River Road
The towing business would qualify as a cottage industry under 4.47. A special exception is required because of the change of use from residential to cottage industry. Shawn wants to store flat bed and wrecker in his yard.
Jim asked about setbacks for the sign. Sign would be in the set back. Jim noted that no sign is permitted in the side setback (section 6.25). Shawn said that there was no other reasonable place to out a sign, and that he would do without one.
Walt said that 4.48 would also apply. Property is also in flood plain 4.65.
Shawn said that he would pick up vehicles and take to another location in Norwich for them to be stored and/or worked on. Alan asked if ever he might store a vehicle for a short time, Shawn replied that yes it could happen but that was not the plan.
Walt said there would have to be conditions for the clean up of possible waste leakage.
Bob Barnum, abutter, was concerned but glad to hear Shawn’s plans did not include storing towed vehicles in the yard.
Margot and Joe Longacre, abutters, concerned about hours, noise, busy-ness of road and small size of Shawn’s property.
Shawn - planning on 24 hour towing - but who knows how much business he will get and when.
Alan - where will truck be parked - Shawn - backed in, just N. of house
Jackie mentioned proximity to Shoestrap Rd., Ross- concerned about noise, diesel engine on wrecker.
Vickie said there would need to be a site review by the Planning Board.
Jim asked what the ZBA needed to do - Walt said we had to approve a Special Exception for a cottage industry (change in use from residential to cottage industry).
Ross moved to deliberate, George seconded.
Jackie - could he put sign on garage in the future if he wanted to? Yes.
Alan moved to grant a special exception for cottage industry in the rural district. Since there is no space for a sign, applicant has agreed sign is not necessary. Abutters though concerned, have been reassured. Pollution prevention measures will be taken. Condition - that no mechanical work be done on client or tow vehicles on property on regular basis. Ross seconded. Voted to approve unanimously.
Discussion - Walt brought up 4.32 Offensive uses , Jim said that since the planning board will go through a site review our decision will hinge on that approval.
Donna and John Andersen, 04-031, M405/L30-2
Appeal: Selectmen’s April 21 decision authorizing a residential trailer at 655 River Rd.
John Andersen said the zoning ordinance seems to be ambiguous. Lots of different slants and answers. But it can also be construed to be discriminatory. Both 4.43 and 4.41. Peter Tausanovitch has a permit for a trailer but will also need a permit for the house. John is challenging the select board’s decision.
Dick Jones, Chairman of Board of Selectmen gave the history of the Tausanovitch request:
Motion to deny was defeated on March 18th; voted to reconsider on the 25th; then voted to deny on basis of 4.43. On the 21st of April voted to approve, on basis of 4.41, with condition that when house is built the trailer must go. The Board was given a copy of the Selectman’s minutes on the issue.
Vickie said she looked at the usual things for zoning - there were no soil problems, etc.
Peter said trailer is his house and doesn’t understand how this is unfair or the negative impact.
John reiterates that it is unfair because it is ambiguous - 4.43 and 4.41.
Walt said it is clear to him, 4.43 gives the Zoning Administrator power to give permits for temporary non-residential, non-conforming structures, as when temporary office space is needed during modifications to an existing structure. He advised that the Board would deliberate regarding ambiguity.
Jim moved to deliberate, Ross seconded.
Jim said as long as Vickie went through all the zoning and all is ok then the trailer is OK. Lots of precedent for 4.41 and its application to temporary residential use as a primary residence in construction.
Ross moved to deny the appeal. George seconded - Appeal denied by unanimous vote.
Alan moved to postpone discussion of amendments until next meeting. Seconded and voted.
Resumption of Stout Application
Jim moved to resume deliberation on Stout case. Alan off the board, Jackie on.
Jackie asked if we had seen much evidence on Alternate routes.
Jim preempted her with a motion to deny Stout application of 4175’ driveway, citing the fact that much of the property is in the Mountain and Forest District, that the driveway crosses Steep Slopes, Agricultural Soils, Wetlands and Shoreland conservation Districts requiring special exceptions under 4.61, 4.62, 4.63, and 4.64 and portions of driveway exceed 11% requiring special exceptions under 4.53 and 4.62. Also the drive will require a cleared path of 40’ to 70’. The conditions of 10.50 must be met for all of the required special exceptions and in his opinion many are not. His opinion was that the application was for a driveway, and didn’t specify the residential use. Photocopies of the hand-written motion were distributed to the Board.
Vickie clarified that the original application was for a drive to a residential house site, but that the public notice may not have identified the residential use.
Jim went on to discuss what he called “curiosities” as to permitted uses, the lack of information on the planned house. Said we can’t evaluate just the driveway - a full review should be done on this property. When we get into incremental zoning we get into problems.
Ross seconded the motion. He said we are told we should lean toward granting special exceptions but then why have a board? He feels we should decide to deny because the proposed driveway is such a stretch of special exceptions to make the whole thing a special exception.
Jackie cited Simplex and reasonable use of his land.
George was bothered by Waugh’s comment that he doesn’t have a given right to put his house where he wants.
Walt doesn’t think the drive is onerous. We can put conditions on per 10.50
Jim did not want to withdraw his motion. Vote - 2 for the motion (Jim and Ross), 3 opposed (Jackie, Walt, George). Motion defeated.
Ross then moved to deny application in view of the number of special exceptions involved in approving the project. The ordinance is intended to preserve Mountain and Forest Districts. Jim seconded.
Marcia said the Board doesn’t want to get the reputation of being “easy.” Margot said we had to judge each case on its own merits, Jackie agreed.
Vote on denying - 2 to deny (Jim and Ross), 3 opposed (Jackie, Walt and George).
Walt moved to table the hearing until May 27, 7:40 pm when hopefully we will have a prepared motion for discussion. George seconded. Vote was unanimous to table.
Walt asked Rod for information on alternative driveway sites they considered. He will bring them next time.
Next meeting to be Thursday May 27 at 7:30 when we will also finish our Rules and Procedures business.
Meeting adjourned 11:00 pm.
Respectfully submitted, Marcia Armstrong
| 
