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Lyme Zoning Board of Adjustment
Minutes: September 16, 2004
Board Members: Present -George Hartmann, Chair, Alan Greatorex, Vice Chair, Walter Swift, Jim Poage, Ross McIntyre
Board Alternates: Absent – Margot Maddock, Jackie Glass, Marcia Armstrong
Staff: Vickie Davis, Zoning Administrator, Adair Mulligan, recorder
Public: Carola Lea, Colin Robinson, Dan Bailey, Stephen Balch
At 7:35 pm, Chairman George Hartmann called the meeting to order. Minutes of the August 19 meeting were amended to delete the end of the eighth sentence of the Smallidge discussion after “movable buildings.” Minutes were approved as amended on a motion by Alan seconded by Walter.
Carola Lea, Applicant, Permit Application 04-084, M404/L16
Proposal: install stairs, landing, ramp, and dock at 522 River Road.
Jim asked about the use of the dock. Carola said she would probably keep a canoe or kayak there, and that the dock would allow her to access the water beyond the bank. Vickie pointed out that River Road bisects the lot. She counted the platform as coverage. Ross suggested counting only 24 sf because the ramp and part of the landing will not cover Carola’s property but land on the river owned by the state. Docks are a permitted use in sections 4.63 and 4.65. Alan pointed out a disconnect between the zoning ordinance and the state Shoreland Protection Act. Ross said that the design is a reasonable approach to minimize disturbance to the bank. Alan suggested using a stair tread that would allow light to continue to support vegetation growing on the bank.
Deliberations:
Walter advised subtracting the square footage in lot coverage. Ross moved to approve construction of the stairs, ramp, and dock, finding that this is a steep riverbank with no present easy access to the river. The applicant has received a state wetlands permit for the project and has a plan for construction. The docks and access to conservation areas are permitted by special exception in 4.63B2, 4.65B2, 8.22, and 8.24B. The house is in the rural district and predates zoning. The result of construction will decrease the allowable 1000 sf of intrusion into the setback and shoreland conservation district by a total of 84 sf, leaving 916 sf available for future expansion. There was a concern raised by the board on the possibility of erosion relative to the stairway, and the applicant is required to take steps to prevent water
running down under the stairs where vegetation might be impaired by shading. The steps should be designed to minimize shading and other best management practices to minimize erosion should be employed. Requirements of 10.50 are met, and no abutters were present. The Conservation Commission has reviewed the application and voiced its concern about erosion control. The motion includes adding the conditions listed on the NH DES permit to the conditions of the town building permit. Walter seconded Ross ’s motion and it was 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 minutes from previous meetings concerning related cases for Estes, Crowe, Ryan, and Wing. At issue is whether the decision regarding 25% of agricultural soils is based upon the existing or “parent” lot or the smaller proposed lots.
Colin explained that on August 26, he asked to have the application tabled while it was brought back to the ZBA, so there was no decision. He waived the running of the 65 days. Ross read the July 22, 2004 minutes of the Planning Board. Vickie said that the planning board has not gotten past application review. Colin disputed this and said that the board was in deliberations, and that the application was deemed complete. He said that the Planning Board had previously approved the subdivision and that in the Crowe and Ryan cases, neither board had considered the notion that agricultural soils had to be contiguous. Walter asked if it is true that the final Wing subdivision had laid out building areas. Colin said that meetings on Jan 11, 2001 and Feb. 22, 2001 led to approval on
March 22, 2001, and that the building envelopes there are not contiguous, but he did not know if 25% of the agricultural soils were contiguous. Walter asked if the Ryan case had come before the ZBA. Colin said it had not, because the Planning Board had decided to grant with no discussion of contiguity. Ross asked about the date when the ordinance language was changed. Colin said that the ordinance was changed in 2003 with misrepresentation by the Planning Board about the effects of the change. He read the explanation of the change given by the board before town meeting. Jim said that what was described was not pertinent to this case. Colin said that other approvals by the Planning Board set precedent. Walter asked if there was anything on record to prove that the Planning Board used the 25% contiguous criterion. He referred to the current subdivision regulations.
Jim agreed that the question is what the parent lot is, and whether it is the U shaped piece now existing or whether it includes the Maker lot. Colin said that Lyme has embraced the notion that it can tell an applicant where to build on a lot that the Planning Board has created. Jim said that the Zoning Board decides what “contiguous” means. Colin said that the court would consider what information the legislative body had before it when voting for the change in the ordinance. Ross said that the town has asked the Zoning Board to interpret the ordinance, and that the voters had the section of the ordinance’s language before them when they voted.
Deliberations: George asked the members to state whether they felt bound by precedent. Jim said he opposed paying too much attention to precedent. Ross agreed but said that this issue has not been before the board in precisely this form before, and noted that in some cases, precedent is against the applicant. Jim pointed out that boards change and that because membership shifts, it is not wise to adhere rigidly to precedent. Alan said he did not feel bound by precedent. Walter said that he believes no two cases are identical, and he prefers to look at the logic used to decide each case. George agreed, and reviewed the reasons why the other cases did not set precedent. Jim said that section 1.2 under the purpose section of the zoning ordinance is to preserve agricultural soils for agricultural use, not just the
soils. George said that the Purpose section of the ordinance as well as the Agricultural Soils section 3.27.4 would seem to urge the board to use the parent lot. Ross said that the issue of what the parent lot is needs to be settled by a clarification to the ordinance, but that the board must now make a decision. Jim added that the second paragraph of section 4.64b states that the purpose of the item is to protect the productive capacity of the soil. He said that most special exceptions include the language “if no reasonable alternative exists” and suggested that the problem could be worked out using lot size averaging. Walter said he did not see why the lots could not be subdivided so they would fit within the ordinance requirements. Colin said he has tried and could not find an option.
Jim moved that the ZBA interpret this language in section 4.64B: “if a lot does not have sufficient non-agricultural soil, then up to a contiguous 25% area of the agricultural soil on the lot may be developed...” as meaning “25% contiguous area in the parent lot.” Ross seconded this motion, and it was approved on a vote of four in favor, with Alan voting in opposition. The application was denied on a vote of four to one.
William and Ann Bokermann, Applicants, Permit Application 04-089, M410/L9.1
Proposal: expand a single-car garage to a two-car garage at 190 Baker Hill Road.
The applicants propose to add on to their attached garage in the Rural District, and build within the property setback. Mr. Bokermann confirmed that the house is closer to the road than the garage. Ross asked if there are other feasible locations which would not involve the property setback area, such as a detached garage 75' back from the road. Mr. Bokermann said that he hopes to expand the existing garage, which opens on to the road, and already has a driveway to it. Building a new garage 75' back from the road would set it within 100' of wetlands. A barn and a shed also sit on the property.
Deliberations: Alan moved to grant a special exception under section 8.22 for the project, finding that there is no alternative location that would meet the setback requirements from the road without encroaching on the wetlands setback. The house is in the Rural District, is located 21 ½ feet from the road, and was built long before zoning. The garage as proposed is further from the road than is the house. No abutters were present. The conditions of 10.50 are met. The project will not exceed the allowable 1000sf encroachment. The addition will occupy 522 sf leaving a remainder of 478 sf for future development. Conditions include use of best management practices to avoid sedimentation of the wetlands on either side of the road. Walter seconded the motion and it passed unanimously.
Stephen and Kandi Balch, Applicants, Permit Application 04-079, M407/L83
Proposal: build septic system at 150 Whipple Hill Road.
Mr. Balch proposes to construct a septic system on his lot in the Rural District, within the agricultural and shoreland conservation districts, and within the property setbacks. This will be a replacement of his current portalet and dry well system which the ZBA approved at a past hearing. The Conservation Commission does not feel that they have the expertise to respond to this application, and does not know what impact the septic system will have on Trout Brook. Vickie said he has a septic design which he has sent to the state, but has not yet heard back. Stephen explained that he now has a chemical toilet for his two bedroom camp, and a dry well for gray water. He said that he thinks as long as the state approves the design, it is safe. Vickie agreed. Alan said that he has designed a system for this lot, and that the
lot has gravel soils that filter fairly well. He thinks the system should work well. Ross said that some systems in town are closer to streams than this one, but that with more people in town, more nitrogen and phosphorus will enter streams. Walter asked if there is a backup location if the system fails. Alan said that it could be replaced on the same site. Walter asked if the work permitted in 2002 was done. Stephen said it had. Walter cited the decision which required approval of the town health officer, and asked if another application is required to replace this. Vickie said it was because the new system would be different. She read a letter dated September 13 from Dorf Sears, who is not an abutter, warning that the system could affect the water quality of Post Pond, and asked that the board approve the least polluting design for a system. Alan said that in evaluating a septic design and site, the state looks at depth to bedrock, depth to the seasonal high water table,
and a distance of 75' from wells and surface waters. His design was similar to this one, although the location selected is deeper to ledge. George noted that the system is drawn as 75' from the proposed well but does not show the distance to the stream. He was concerned that it might be too close. Vickie measured the original map and determined that it was only 73'. Walter asked why the system was not oriented along the road. Stephen said that there have been two other state-approved designs for that site. Jim asked how much the camp would be used. Stephen said he did not know how much. Ross advised assuming it could be used all four seasons and that the Planning Board should look at the issue of conversion of seasonal camps to year round use.
Deliberations: Ross said that the property is better off with a septic system than with a portalet. He suggested considering a low volume toilet. Walter noted that the ordinance requires a 100' setback for septic systems, and allows less for replacement systems only. The town’s septic setbacks are stricter than the state’s. Alan noted that it replaces the grey water dry well, and that it provides better treatment. Walter moved to grant a special exception to construct a septic system as shown on the drawing submitted by the applicant, dated June 9, 2004 by John Downing. The property is a two bedroom camp on a non-conforming lot that is used seasonally and was built pre-zoning. The proposed system is to be located in the shoreland and agricultural soils conservation district and front setback and cannot
be reasonably located elsewhere. Approval has not yet been obtained from the state. One corner of the leach field may be less than 75' from Trout Brook. It is the sense of the board that the designer should be alerted to this and modify the design if appropriate. A letter from Dorf Sears has been received requesting that the board address minimizing contamination to the stream. Requirements of section 10.50 have been met, as have the requirements of sections 8.22, 8.27 and 8.24B. Since the system cannot be reasonably located outside the conservation districts, as long as it meets the state requirements, the ZBA waives the requirements of 5.13D3. The existing dry well is an existing non-conforming structure. The leach field will result in lesser violation than the dry well. The design must meet the requirements of the state before issuance of the permit. Ross seconded the motion and it passed unanimously.
Meeting adjourned 9:44 pm.
Respectfully submitted, Adair Mulligan, Recorder
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