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Lyme Zoning Board of Adjustment
Minutes: July 15, 2004
Board Members: Present -George Hartmann, Chair, Alan Greatorex, Vice Chair, Walter Swift, Ross McIntyre, Absent – Jim Poage
Board Alternates: Present - Jackie Glass, Margot Maddock, Marcia Armstrong
Staff: Vickie Davis, Zoning Administrator, Adair Mulligan, recorder
Public: Rod Finley, David Roby
At 7:30 pm, Chairman George Hartmann called the meeting to order, explaining that the purpose of the meeting was to determine if the board will rehear the Stout application, which was for construction of a 4100 foot driveway that will serve only one proposed residence. Both the applicant and an abutter have filed motions for rehearing, and both motions were received by the Town on June 25. George reviewed the options for the board: to grant a rehearing, to decide not to rehear, or to suspend a decision pending discussion with town counsel. George added that on the advice of town counsel, the board cannot accept additional input from the applicant or the public, and he asked those present to refrain from comments. He said that he has sought and received advice from town counsel, and that he would ask members of the
public to leave the room so that the board could consider the advice in executive session if needed. Alan recused himself because he had previously done so for this application, and left the meeting. George appointed Jackie and Marcia to sit as regular members.
George turned first to consideration of the Stout appeal and asked if a rehearing should be granted. Walter reminded that the primary reason to rehear a case is to allow the board a last opportunity to correct errors, and that they could decide to rehear, and reach the same decision with different reasoning. George added that rehearings should not be granted lightly. Marcia said that she was not one of the original members on the decision, but thought that the board had tried harder to approve the application than it should have, and that it had grasped at straws somewhat to give approval. George pointed out that the issue under discussion was simply whether or not to rehear based on Mr. Stout's motion. Walter said that the board must specifically rehear only those issues it
agrees to rehear. Margot asked if the board should go into executive session. All agreed there was no need for a non-public session.
Ross said he saw no reason to rehear based on the Stout motion. Jackie agreed with Ross. Walter asked who should participate in a rehearing. Vickie said that an effort should be made to have the same members as those who sat for the original decision, but that it is not necessary. She has confirmed this with town counsel. George agreed, and said he believes the legal requirements for constitution of the board have been met. He asked Walter about the Stout motion. Walter said that he saw no reason to rehear based on the arguments made by Mr. Rayment on the restriction to one house. He said that the ZBA found that the application was for a drive to a single residence, so he rejected the motion on that issue. The driveway was linked to the residence so the ordinance could be
applied. The decision could be clarified, he suggested, by saying that if in the future the applicant wished to modify the drive he would have to come back to the ZBA. The second issue, #16 and 17 in the motion, regarding the conservation easement on the entire remainder of the property, was discussed at the time of the decision, Walter said. Another residence could not have been put in the Mountain and Forest District, but by various steps it would have been possible to put more residences in the Rural District part of the lot. Walter said he had concerns about that.
Ross said that the applicant had indicated that he was arranging things for two additional house sites on the property and a way to carry this out. Ross said he felt that it was better to get a decision that satisfied the goals of the Mountain and Forest District, and that if the applicant had taken steps to bar the ZBA’s ability to enforce the goals of this district, he would have denied the entire application. Ross pointed out that the ZBA does not have a formula for how much of a steep driveway is too much; 1800' of steep drive will produce more siltation than 100' of steep drive, and poses more danger to fire trucks. He added that the ZBA has the power to decide if a special exception makes sense or not, and that the reason for having a special exception is
so the board can deny it at appropriate times, otherwise there is no point having a board, and the Zoning Administrator would have the authority to approve all applications. He feels therefore that the board has the right to impose its understanding of the general purpose of the ordinance with respect to the Mountain and Forest District, and consider this with the request for a special exception. In return for granting the special exception the board has the right to impose conditions which ensure that the goals of the ordinance are met.
Marcia said she felt it was hard to judge the application without a house to consider, such as whether the site was in the ridgeline district. She felt the plan was not complete when it was presented to the board, and wondered if the house would meet all the requirements for a special exception. Ross said that Jim had had parallel feelings, and that the situation was similar to the Breakfast on the Connecticut application, which was only for a driveway.
Ross moved to deny the request for a rehearing. This was not seconded. Jackie said that she thought the decision could be modified but that a rehearing was not warranted. On April 15, she noted that Mr. Rayment expressed willingness to accept an easement, although at the time it was not proposed for the whole property, and that the applicant seems to have reversed himself on this point. Walter aid he was nervous about not giving a rehearing on the easement question. Marcia agreed but thought the applicant could win on the question of percentage of the lot to be put under easement. George said that the application was clearly for a driveway for the purpose of serving a single home, and that it was clear that the applicant accepted one residence. He recalled asking if the
applicant would accept approval based on putting all of the remaining lot in easement, and thought that he had agreed at the time. Therefore he would be unwilling to rehear for this part. Ross said he was sympathetic with Walter’s concern, and moved to suspend a decision until the board could consult with town counsel to discuss the issue of condition 5. Jackie seconded this, and it was unanimously approved..
George turned to the motion for rehearing by David Roby. Ross said that the arguments were rational and reasonable, but thought that the board was not about to turn down the applicant’s request, although he and Jim would have voted against it. Marcia said that she would have voted against it too. Ross continued that since he did not sense that the board would have turned it down, he did not find a single compelling argument for rehearing. Jackie agreed. Walter said that he agreed with David’s editorial comments on the notice, but believed that the intent was clear enough so that there was no reason to rehear the case for that alone. He said that the board was also not limiting the applicant to who could hold the easement. He did not see a compelling reason to
rehear. He added that Roby’s counsel had ignored the findings of fact and picked on individual statements during the discussion. Marcia said that nothing new had been brought up but she agreed with the sense that the board wanted to grant the special exceptions, although she felt that the application did not meet all the criteria, especially with respect to steep grade. She felt it would be wasting time to rehear the case.
Jackie said it would be sensible to attach a condition prohibiting work on the drive until all appeal periods have expired, as Roby suggested. Walter said that the permit cannot be granted until the easement is in place, so the appeal process would have run out by that time. Ross said that the easement would have to be reviewed and the process would take months. Walter advised consulting town counsel on this point. He said that the intent is that nothing would happen before the easement was in place. George asked if the language changes could be made without a rehearing. Walter advised asking the town attorney. George said that the pivotal vote was taken on May 27, not May 20. He said that since the board is already planning to consult town counsel, it could also consult on
Mr. Roby’s motion. Voted unanimously on a motion by Ross seconded by Walter to suspend the decision on rehearing pending consultation with town counsel. Questions to be pursued are: the issue of validity of quoting discussion instead of findings of fact as basis for objecting; editorial language changes; not going ahead with construction until appeal periods have elapsed; and what happens when the Superior Court acts should the matter go to court. Margot asked about timetables, and Vickie will check with counsel. Will try to arrange a meeting with town counsel during the week of July 26, so that all can be present.
Meeting adjourned 8:46 pm.
Respectfully submitted, Adair Mulligan, Recorder
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