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Lyme Zoning Board of Adjustment
Minutes: August 19, 2004
Board Members: Present -George Hartmann, Chair, Alan Greatorex, Vice Chair, Walter Swift, Jim Poage, Ross McIntyre
Board Alternates: Present - Jackie Glass, Marcia Armstrong Absent – Margot Maddock
Staff: Vickie Davis, Zoning Administrator, Adair Mulligan, recorder
Public: Peter Smallidge, Colin Robinson, Dan Bailey, Nancy Grandine, Brian Cook, Rod Finley
At 7:35 pm, Chairman George Hartmann called the meeting to order. Minutes of the June 28 meeting were approved on a motion by Alan seconded by Walter. Minutes of the July 15 meeting were approved on a motion by Alan seconded by Jackie.
Peter and Elisabeth Smallidge, Applicants, Permit Application 04-070, M401/L14
Proposal: set up a movable storage shed on a temporary foundation at 102 Dartmouth College Highway.
This proposal for the Commercial District requires a special exception tp encroach into the Shoreland and Wetland Conservation Districts, property setbacks, and to exceed the maximum lot coverage allowance. Vickie read a letter from abutter Owen Cummings, who had no objection. Peter said that the shed would house bicycles and lawn tools. Ross asked if there were other locations for the shed that would intrude less into the setbacks or conservation districts. Peter said his lot is an old lot of less than an acre. The entire lot appears to be in the wetland buffer. Walter asked if the shed should be considered a structure if it is movable. Vickie said that tax law changes now embrace movable buildings, and that part of the reason for ZBA review is to identify taxable structures. Jackie asked if the shed could be moved 5'
closer to the house to allow it to be outside the side setback. Peter agreed to do that and confirmed for Jim that the deck was open.
Deliberations: Ross said that it was unlikely there would be commercial development of the adjacent pond, so he was not troubled by an extra 5' encroachment into the setback, and liked the idea of a shed that could be moved. He moved to approve the applicant’s plan, which requires special exceptions under sections 8.22, 8.24, and 8.25 because it is in the shoreland and wetland conservation districts and front setback. Findings of fact are that the proposal is for a 120 sf shed which will be within the wetlands conservation district, the property setbacks, and will exceed the maximum lot coverage.
The house was built in 1930, well before zoning was adopted by the Town in 1989. Most, if not all, of the lot lies within the wetlands conservation district and the property setbacks. Previous ZBA hearing in 1995 allowed a 420 sf addition to the house, the removal of a porch, and the addition of a 130 sf deck. The hearing did not address the conservation district encroachment (295 sf was actually built in the conservation district—less than the proposal at that time) or exceeding lot coverage by 103 square feet. It did provide a special exception for the setback encroachment. Section 8.22 allows 1,000 sf encroachment into the property setbacks. The 1995 hearing provided that the applicant could build 320 sf in the setbacks. However, only 295 sf was ever built. With the proposed 120 sf
shed, there will remain 585 sf for future encroachment into the setbacks by special exception. Section 8.24 allows a maximum encroachment of 1,000 sf into the conservation district. After the 1995 ZBA hearing, 295 sf was built in this district. With the current proposal of a 120 sf shed, this leaves 585 sf for future encroachment by special exception. Section 8.25 allows exceeding the maximum lot coverage by 1,000 square feet. The maximum lot coverage is 1,446 sf. After the 1995 hearing, 103 sf was built above the maximum lot coverage. With the proposed 120 sf shed, there will remain 777 sf of the 1,000 square feet for future expansion by special exception. No abutters were present to give testimony although a letter from abutter Owen Cummings in favor of the proposal was read. The provisions of Section 10.50 have been met. Ross’ motion was seconded by Alan and approved unanimously.
Colin Robinson, Applicant for Dan and Millie Bailey, Permit Application 04-076, M401/L1.2
Proposal: subdivide one lot at 294 Dartmouth College Highway.
The Baileys propose to subdivide one lot from their property in the Rural District to make two lots of 12.52 acres and 11.32 acres. This is considered a major subdivision instead of a minor subdivision, since other subdivision has occurred on the property within the last ten years. It requires a special exception to develop within the Agricultural Soils Conservation District under section 4.64. The ZBA reviewed the July 22, 2004 minutes of the Planning Board relative to this application, and also an August 19, 2004 letter from Planning Board Chair Freda Swan. At issue is whether the decision regarding 25% of agricultural soils is based upon the existing or “parent” lot or the smaller proposed lots. Walter asked about the precedent to support interpretation of contiguous agricultural soils. Vickie said that the
Planning Board had dealt with it in the John Wing subdivision and said that the parent lot is considered to include the lots subdivided within the last ten years.
Colin said that the Baileys sold their former home last year on a 3 acre lot, and that there is a remaining 24.35 acre lot proposed for subdivision. There are agricultural soils of national, state, and local significance on the land, as well as wetlands and shore lands; every conservation district overlay except for the ridgeline district, so that the applicant cannot satisfy the contiguous requirement for a valid subdivision. Colin said that the ZBA had approved similar subdivisions under section 4.64b in two cases, and had looked at each lot individually, rather than in conjunction with the parent lot. Also in 2001, the Planning Board granted a similar subdivision to Bret Ryan. Colin continued that the zoning amendment approved by 2003 town meeting vote did not include
discussion of the parent lot, and he held that this was an intentional omission.
Ross said that if the goal of the ordinance is to preserve agricultural soil, calculating it on the basis of new lots rather than the parent lot would avoid doing what the zoning ordinance intends. Colin said that if it is a question between benefitting the landowner or benefitting something else, the decision should benefit the landowner. Ross said he thought that the subdivision would require a variance, and Jim agreed. Colin said he would assert the precedents of the Ryan and Crow decisions. Alan said he would like to see the minutes of the Ryan, Crow, and Wing decisions. Walter agreed and said that it should be demonstrated why the progeny lots would have insufficient non-agricultural soils. Voted to table the hearing until the next meeting, on September 16 at 8:00 pm,
on a motion by Ross seconded by Walter. Will assign 40 minutes to this hearing.
Colin Robinson, Applicant for Allen Osgood, Permit Application 04-081, M201/L56
Proposal: add 2-car garage and 500' living space at 27 Union Street.
The applicant proposes to extend the driveway and construct an attached garage in the Lyme Common District. This requires a special exception under section 8.25 to exceed the maximum building footprint and lot coverage. Colin pointed out that the building was built before zoning and that there is a 500sf allowable expansion in this district. Abutter Brian Cook said that there are presently two rental units in the building, and he wanted to be sure that there would not be a third added. George noted that there will be no plumbing added. Colin said that the additional living space would be added to the rear rental unit. Walter asked if there was a size limit for rental units in Lyme. Vickie said there is not, although there is a minimum size. Abutter Nancy Grandine asked about the septic location. Colin said the garage
would be built elsewhere and that the new leach field limits use of the site. Ross observed that if the same roof line is used, there would be less than 500sf of usable living space because of kneewalls. Colin said that the facade and roof line would be similar to the existing design. Walter asked about the number of bedrooms in each unit. Colin said there are two each, for a total of four, which is the limit of the septic system capacity, and that the bedroom number is almost the maximum permitted in that district. Jackie noted that the addition would almost double the size of the rear rental unit. Ross asked about using water meters as a constraint. Colin said that he would not accept that.
Deliberations: Ross asked about outdoor lighting. Colin said that he thought there might be some area lighting such as a light on the side of the garage, but that there would be no floodlights. Walter moved to grant a special exception. Ross seconded the motion. He observed that soil percs very fast in this area. Findings of fact include that the property addition would increase the footprint by 492sf and that 500 sf are allowed under section 8.25, leaving 8 sf for future expansion. The building is a non-conforming structure that existed on the non-conforming lot before zoning. The addition is outside the required setbacks. The existing septic system is sufficient for the number of bedrooms in the two-unit building, and can accommodate no more than four bedrooms in all. Two abutters registered no objection. The
applicant stated that the lines of the current roof line would be maintained in the new construction. The requirements of 10.50 are met. Conditions are that the roof line will be as proposed, there will be no more than four bedrooms in total, and that there will be no plumbing in the addition. The special exception was granted on a unanimous vote.
Stout and Roby Rehearing Requests
Alan Greatorex recused himself, and George appointed Jackie to sit as a regular member. George confirmed that all members had seen the draft submitted by town counsel. Ross and George both distributed draft motions they had prepared. Edits were made to Ross’ proposed text, and it was adopted unanimously on a motion by Ross seconded by Walter. Subsequently, this motion was amended unanimously on a motion by Walter seconded by Ross to substitute the first sentence from George’s draft for the first in Ross’s draft. George explained to Rod Finley that the ZBA had voted to deny the request for a rehearing by both Mr. Stout and Mr. Roby.
George suggested that the board could tighten the language of the decision notice without a rehearing. The board reviewed suggestions made by David Roby and certain changes were unanimously approved based on a motion by Walter seconded by Ross.
Meeting adjourned 9:40 pm.
Respectfully submitted, Adair Mulligan, Recorder
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