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Lyme Zoning Board of Adjustment
Minutes: April 15, 2004
Board Members: Present -Walter Swift, Chair, Jim Poage, Vice Chair, Ross McIntyre, Alan Greatorex
Absent – George Hartmann
Board Alternates: Present -Jackie Glass, Margot Maddock, Marcia Armstrong
Staff: Vickie Davis, Zoning Administrator; Adair Mulligan, recorder
Public: Arthur Stout, David Rayment, Seth Clifford, Rod Finley, David Roby, Bernie Waugh, Stuart Karon, Nancy Wray
At 7:30 pm, Chairman Walter Swift called the meeting to order. He went through the paperwork associated with the case. Since only four regular members are present, and Alan chose to recuse himself from the first case, Walter asked Jackie and Marcia to sit as regular members.
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 proposes 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 4.54 and 4.62. It will be determined if this is in the Ridgeline and Hillside Conservation District which would require a special exception under section 4.66.
Walter reviewed the hearing history: 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. Walter asked if there is any additional information from the applicant. Arthur Stout introduced himself and said he had grown up in Hanover Center. He explained that all of his property had a northern exposure until he added a piece from Mr. Small which has an eastern exposure and is dry. Mr. Stout considers this the best place to build on the property, which is his reason for the long proposed drive.
Vickie read a letter dated April 13 and received April 15 from JT Horn of the Appalachian Trail Conference, a major abutter to the property in question. The letter stated concern that construction of the drive would lead to further development along the Appalachian Trail corridor, loss of conservation value, and alteration of the current view from the trail which is uninterrupted except for the view of a few houses from the top of Holt’s Ledge. Mr. Horn suggested that the length and slope of the driveway are excessive. Walter asked to see maps of the AT property boundary, which David Roby volunteered. They were viewed later.
Rod Finley provided a presentation on behalf of the applicant. Rod reviewed the project, displaying a new map and design concept for the 208 acre parcel and the materials submitted with his letter of February 12,2004. Baker Hill Road had been realigned in 1970, and a sharp bend in it had been designated a Class VI road. The Select Board has given approval to use this old road as the beginning of the driveway. The Conservation Commission looked at the shoreland portion of the driveway where it would follow a small stream. The CC felt there would be little or no additional impact in this area. The applicant has a driveway approval from the town and also approval from NH Cooperative to run the driveway under its power line. Rod reported that Arthur Stout had walked the
property with a representative of NH Fish and Game Department and there is a letter on file regarding the deer yard. Seth Clifford prepared a forestry plan which was reviewed by Fish and Game, who concluded that there would not be a negative impact on the deer yard. Rod walked the property with Vicki Smith who represented the Planning Board and discussed sedimentation and erosion control. There is a letter from Vicki in the file with her recommendations.
Rod described the attempt to see if proposed residential site is in the Ridgeline and Hillside District. Two 3' red balloons were hung at 35' and 80'. GPS readings were taken on the balloons, and then he went to Acorn Hill, Flint Hill, and Dorchester Roads to look for them. He could not see them and concluded the site was not in the district. Arthur said that he would not clear the trees in this direction because they offer protection from the north wind. Rod continued that the views are easterly, toward Smarts Mountain. Rod talked to Michael Hinsley, Lyme Fire Chief, who submitted a letter detailing his recommendations includingwater storage in a pond or cistern, smoke and heat detectors, and a dialer system as alternative fire protection a minimum 14' width driveway and a
sprinkler system. Rod said these were reasonable and that the applicant was willing to comply.
Rod referred to the February 12 letter from Pathways, and noted that the agricultural soils on the property are fragmented. The driveway would cross soils of both state and local significance. He pointed to an error in the letter in dealing with section 4.64 and distributed a new map, dated 4/14/04, which shows the extent of these ag soils. Rod said that the owner did not want to put a conservation easement on all the property’s ag soils, and proposed to keep out two potential future development areas near Dorchester Road. He understands that if a special exception is granted to cross agricultural soils, the applicant must put all the rest of the ag soils under a conservation easement, but said that Mr. Stout wants to keep 25% of the ag soils for development.
Rod returned to the February 12 letter, and concluded that because the initial building site is not in the Ridgeline and Hillside District a special exception is not needed for that. He noted that the letter reviewed the 14 items under section 10.50 of the ordinance, and concluded that the project would have a minimum impact on the area. Regarding the objection from the Appalachian Trail Conference, Rod said that the project would maintain 800' of natural vegetation between the building site and the AT property. Arthur said that the trail is a mile away. Rod continued that he disagreed that the project would lead to future development, except along Dorchester Road, because along a state road the property could support no more than three units, with two drives off Dorchester
Road. Walter pointed out that to add the proposed houses, a subdivision approval would be required from the Planning Board. Jim Poage observed that the building area of the property is in the Mountain and Forest District.
Ross McIntyre asked if the balloons were put up on a windy day. Rod said they were. Ross asked if there was someone positioned on the nearby roads mentioned to confirm through radio contact that the balloons were in position and ready for viewing before they popped. Rod said there was not. Walter asked if another test would be possible with ZBA members participating. Rod said he could do this. Arthur repeated that he proposes to leave the trees. Marcia Armstrong recommended doing the test again.
Walter Swift invited input from abutters. David Roby said that the best view of the building site would be from various public roads, including Franklin Hill Road and Citadel Lane. He distributed copies of a map showing the property’s location relative to National Park Service (Appalachian Trail) land. The map showed topographic features and a tax map overlay. The proposed house site, he said, was unusually remote, and would be the longest driveway permitted in the Town of Lyme. David continued that the area is wholly undeveloped, and that houses in the area related to town roads. Ross asked about elevations. David said that the house would be at approximately 1380', and that the prominence behind it, Bear Hill, is at 1948'. David said that the extraordinarily long
drive would intrude into an undeveloped part of Lyme, and that the house could be built instead down on Dorchester Road where it would not require a long list of special exceptions.
David turned to the deer yards, and distributed copies of another map, drawn from the town’s map of key deer yards and winter range from the 2004 Zoning Ordinance. He noted that the applicant does not contest that the drive would pass through a key deer yard. David said there are five fatal flaws in the proposal for the driveway: its length, intrusion into an undeveloped area, long steep sections, sharp curves, and bisection of a key deer yard. He displayed another map highlighting steep sections (slope over 11.2%) of the proposed drive, and noted that the town’s standard is 11%. 2300' of the proposed drive exceeds the standard. The first 300' are at 14% slope. 975' are at 13+%. The final 200' section at a sharp turn is at a 14% grade. 200' is at 11.38%, and 625'
is at 11.2%. Much of the drive proposed for the Shoreland Conservation District is steeply sloped. Walter asked Rod if he agrees with these figures. David said that the figures come from Rod’s plans. Stuart Karon asked for a comparison with known roads relative to steepness. Arthur said that the road would be about as steep as Baker Hill Road from Dorchester Road to the drive. Alan said that the very steeply pitched part of Baker Hill Road just above the drive is 19%.
David read the key points of a letter from Normandeau Associates dated 4/14/04 regarding the value of the wildlife habitat on the property. Since there are two building sites outside of the deer yard, he said it would be possible to develop the property without impinging on the deer yard. The letter estimates that over three acres would be cleared for the driveway alone, based on a 40' wide clearing limit. Walter asked the applicant if 40' is a correct number. Rod said that this must be cleared to create a fill slope, but would close in over time. David said that the plan indicates the typical clearing area, which would be 40', and that more would be cleared for culverted areas. He measured this on the map to be 70' wide. Rod said that he will initially have to clear a wide
swath but then the vegetation will grow in. David returned to the Normandeau letter, which concludes that development would result in an irreversible loss of ability of the property to sustain the current designation of key deer yard. He added that page 24 of the Fountain Forestry plan says that the drive would cross a small section of deer yard, but indeed it would cross in the middle. David read from a Fish and Game article attached to the forestry plan, which pointed to problems with deer feeding stations, such as that maintained by the property’s abutter, and points to good cover as the key to winter deer survival. He concluded that the owner should find a different place to build without so many adverse impacts. Ross pointed out that the National Park Service property belongs to all citizens of the United States. David added that the ATC plans a spur trail to the top of Bear Hill.
Bernie Waugh distributed copies of a statement prepared on behalf of David Roby, and noted he was on the trail crew that built Trapper John Shelter on the AT 30 years ago. He reviewed the standards in the various overlay districts present on the property. Section 4.613B directs that a project should have the least reasonable practical damage and should be permitted only if there is no alternative. Bernie said that there are feasible alternatives on the property. He said that it is a mistake to treat the house location as a given, because it is not a grand fathered site, and a drive should be built that meets the town’s standards, and that this drive does not meet the standard of avoiding the deer yard. Section 10.50 A10 requires that the use will not result in damage
to significant wildlife habitat, trails, and natural features. Bernie emphasized that the town standards say that the use shall not result in damage. Section 10.50 A11 refers to burden on public services. Section 4.623B sets out required standards from the Planning Board which call for a maximum slope of 10% grade with no cul-de-sac over 1200'. Bernie concluded that the proposed project grossly exceeds this standard. He added that Chief Hinsley’s letter addresses the wrong standard. Hinsley’s letter advises that there will be a hazard because his department cannot reach the property, but Bernie suggested that should a fire erupt, the department would feel obligated to go anyway, putting town personnel in danger.
Bernie continued that the project grossly violates section 4.54. He said that if the application is approved, the town would never be able to deny another driveway application which is not as long or as steep, and that while there is some precedent protection for the board, such an action would greatly diminish the board’s authority over development in the town. He concluded that the character of the area is undeveloped wild land.
David recalled that he once sat on the ZBA himself, and on the Planning Board, and that he understands that fairness is important. He said he had warned the buyer before he purchased the property that it would be hard to get approval for his project since there are other places to build. Alan asked about the dynamics of deer yards and asked how long a deer yard could exist before it was abandoned by deer, how many acres in the yard are crossed by the drive, and when the determination of key deer yard was made in the ordinance. He asked about Ricker Windsor’s camp nearby. David said that there is a cabin above this site, built about 20 years ago, which is not used. The only access is over David’s land, and the owner has not visited the cabin for about 15 years.
Walter asked if there are snowmobile trails on the land. David said no. Arthur said that Henry Marsh uses his ATV on the land with his permission. Stuart Karon said that the deer yard map comes from the mid-1980s, and that he believes deer move based on tree cover. Arthur said that Alfred Balch had told him that the deer yard maps had changed and had fuzzy boundaries.
Vickie pointed out that the tax map shows a frontage of 1050' on Dorchester Road. Rod said he had estimated it at 1100'. Vickie said that development in the Mountain and Forest District requires a minimum of 1000' frontage. This restriction and the fact that portions of the lot lie within the Rural district may impose limits on future development on the lot beyond the residential site that is currently proposed. Walter added that the ordinance is clear that if a parcel covers two districts, the rules for the most restrictive district apply.
David Rayment said that he represents the applicant, and noted that he did not have the abutters materials in advance. He requested an opportunity to look them over and respond at a date in advance of a continued hearing. Walter said that in view of the time, he preferred to continue the hearing. He asked the abutter to present no more legal briefs at the next meeting. Ross moved to table further action on the application until the next regularly scheduled meeting of the board. Walter seconded this. The motion carried, with Walter, Ross, and Marcia in favor, and Jim and Jackie opposed. Bernie asked about rebuttal at the next meeting. Walter invited all to attend and speak at the next hearing, but that the discussion would end at that time since there is already a lot
of information available. He said he would limit each side to 20 minutes. David Rayment asked if he could file written material in advance. Walter recommended distributing it by email through Vickie Davis. Bernie said that he agrees that the town is not legally obliged to forward such material to him and his client, but that because they know it is coming, he will request it.
Jackie asked whether a second balloon test would be appropriate. Jim and Marcia saw no need for it. Ross said that since questions had been raised, it should be done, and Jackie agreed. Walter asked the applicants to do the test again with ZBA members present. Rod agreed. Arthur said that trees would cover the house. Ross observed that the town was once asked about limiting the length of drives, and was rejected, but the issue might come back again as a result of this project. David Roby said that there has never been a town vote on driveway length. Walter said that a test will be required, with balloons placed at 35' and at another height, with people stationed at various locations to see if they are visible. David said that one way to deal with visibility would be to
require an easement precluding cutting of trees. Walter continued the hearing to 7:40 pm on May 20. Rod will coordinate the balloon test.
Materials received during this hearing include:
1. From David Roby
a. Pathways map with red shading for steep areas
b. Pathways map with driveway shown
c. Topographic map of area
d. Deer yard map
e. Map of US land
f. Calculations of grades for driveways
g. Letter from Normandeau Associates dated 4/14/04 about deer yards
2. From Bernie Waugh
a. “Reasons for Disapproval”
3. From Pathways Consulting
a. Map of proposed conservation easement for agricultural soils
Nancy Wray, Applicant, Permit Application 03-035, M407/L6
Proposal: build a retaining wall at 149 Orford Road.
Jim moved to reopen the hearing for the Wray project. Ross seconded the motion, and it passed unanimously. Walter noted that Alan rejoined the board, and Marcia would retire for this hearing.
Nancy Wray has built a retaining wall in the rural district. A special exception is required under section 8.24 to encroach into the Shoreland Conservation District. A wetlands officer from NH DES came to look at the site, and was joined by Jim Poage, Lee Larson from the Conservation Commission, and Wayne Pike, the contractor. The state has decided that it does not have jurisdiction over the project, because there is no wetland between the foot of the bank of Clay Brook and the wall, although it is in the town’s shoreland conservation district. Jim added that there is wetland between the brook’s bank and the site of the proposed garage. Vickie confirmed that the applicant would have to consult DES again if she wishes to add a barn or garage. The project was
reviewed by the CC on June 11, 2003. The CC’s letter refers to substantial fill used to extend the lawn, and states “had we been asked to assess this project before it was carried out, we would probably have recommended that you deny it.”
Walter reminded that the application now is for a special exception to intrude into the shoreland conservation district. He asked Nancy about the area of fill and square footage of intrusion. Since all or most of the house is in the shoreland district, she can expand it to some limit, but the board needed to know how much. Alan read the map and concluded that the fill was 40' x 8'. Jim said that a 1993 decision permitted 72 sf of intrusion into the shoreland district. The actual addition was an additional 128 sf due to an apparent error in calculating the size of the garage which was built. A porch built last fall added 144 sf.
Deliberations: Walter concluded that there were 200 sf of existing post-zoning encroachment in 1993, plus 144 sf in 2003, plus a current request for 320 sf for the retaining wall and fill, adding up to 664 sf of total lot coverage in the shoreland conservation district if approved, leaving 336 sf for additional future encroachment. Nancy said she plans a future project to expand the driveway to put a barn on the house. Ross pointed out that lot coverage restrictions predominate on this lot. Alan asked about presenting such a plan accompanied by safety arguments. Jim said she could always ask for a variance based on conflicts with Route 10, but that there is no guarantee.
Alan moved to grant a special exception under 10.50, finding that the use exists, and while it may not have been in harmony with the ordinance, it would cause more harm to remove the wall and fill than to leave it. He said that the site is an appropriate location and does not adversely impact the area. Since the wall is already built, no conditions for construction are necessary. The project involves 320 sf of additional encroachment into the shoreland conservation district, which is permitted under section 4.63. Added to prior encroachments totaling 344 sf, there are now 336 sf left for future expansion into the district. NH DES has sent a letter indicating that the site is not within its jurisdiction, but that it will need to look at any further work on the lot. The
Conservation Commission indicated that it would not have permitted this project. There was objection from an abutter, in a letter dated June 17, 2003 and received June 20, 2003, from Dorf Sears. Vickie read her letter, which expressed strong opposition to any development within the shoreland conservation district. Ross seconded the motion, and it passed unanimously.
Walter recommended that the Board again consider the issue of a change to the rules of procedure which currently require discussion for two consecutive meetings before the meeting when an action is taken, on non-applicant actions. Noted that this was discussed at the last meeting and will be taken up again at the next meeting, when members should be prepared to vote. Elections will take place at the May meeting. Next year will consider moving the elections to better coincide with town meeting. Vickie said that the Select Board and Planning Board identifies new members after they are elected in March.
Meeting adjourned 9:56 pm.
Respectfully submitted, Adair Mulligan, Recorder
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