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ZBA Minutes 2004/09/21
Lyme Zoning Board of Adjustment
Minutes: September 21, 2004

Board Members: Present -George Hartmann, Chair, Alan Greatorex, Vice Chair, Walter Swift, Jim Poage
Absent – Ross McIntyre
Board Alternates:  Present - Margot Maddock, Marcia Armstrong
Absent – Jackie Glass
Staff: Vickie Davis, Zoning Administrator, Adair Mulligan, recorder
Public: Barbara Street, Nora and Kevin Rhoads, David Washburn, Julie McCutcheon, Chet Pressey, Mary Nichols, Colin Robinson, Ray and Tina Clark, Jim Kennedy, Andrea Colgan

At 7:34 pm, Chairman George Hartmann called the meeting to order.  Minutes of the September 16 meeting were amended to alter the fifth sentence of the Robinson discussion to read “based upon the existing lot, ‘parent’ lot, or the smaller proposed lots.” Minutes were approved as amended on a motion by Walter seconded by Alan.

Barbara Street, Applicant, Permit Application 04-088, M407/L99
Proposal: remove sheds near road, add garage and bath at 69 Pinnacle Road.
Walter Swift recused himself as an abutter, and George appointed Margot and Marcia to sit as regular members.
Barbara Street proposes to add an attached garage and a bathroom to her home in the Rural District. She is working on a lot line adjustment with her neighbor, Laura DeGoosh, to add a piece of land to hers, which will decrease but not eliminate the side setback encroachment. The project will still be in the front setback. The project would increase her footprint by 384 sf, leaving 616 sf for future lot coverage additions. Two sheds will be removed which are now encroaching into the side setback. Credit for these has been given, leaving 864 sf for future encroachment into setbacks. Barbara said that the lot line adjustment must be surveyed. The issue is that purchasing too much land from Laura could make her lot a non-conforming lot. Vickie said the Planning Board had told her to work it out and get it surveyed. George said that the difference with the additional land is 11 feet of side setback or an average of 35sf. Walter said that he supports the application, as an abutter. Barbara said that Laura has no objection.
Deliberations: Jim moved to grant a special exception under section 8.22 for expansion into the front and side setbacks and section 8.25 for enlargement of building footprint. The proposal is to add a new garage and bath and to remove two freestanding sheds. The property consists of a non-conforming lot size, building footprint, and a house built well before zoning. The application meets the conditions of 10.50. Walt Swift, abutter spoke in support. A letter from abutter, Laura DeGoosh agrees to a slight property expansion that would reduce side setback intrusion, although the project would still be in the front setback. There will be 616 sf of building footprint remaining for future additions out of the 1000 sf allowable under section 8.25. Because the sheds are in the side setback areas, removal leaves a residual of 864 sf for future expansion.  Conditions: use of best construction practices. Motion seconded by Alan, passed unanimously.

Nora and Kevin Rhoads, Applicants, Permit Application 04-062, M402/L32
Proposal: convert a building to office space at 188 Dartmouth College Highway.
The applicants propose to convert a building on their property in the Rural District to office space. This was formerly the New Canaan Academy. George asked Margot to sit as a regular member. Vickie distributed the 1995 decision when the building in question became a day care center. It was approved by both the Planning Board and ZBA. Day care is included in the list of businesses in Table 4.1, so she suggested that the use would be converting from one business to another. Kevin said that he bought the property in May, 2003, as a primary residence. The building in back was built in the same footprint as a previously existing barn. Vickie checked the tax card, and it measures 1400 sf. Walter pointed out that the building was approved for institutional use in 1995 for the academy, and in 2001 the day care center applied for accessory use. Walter said that at this time the primary use remained institutional, on nights and weekends. Vickie added that George Hano bought the property in October 2002 and renovated the house before the Rhoadses purchased it in May 2003. Walter said that during Hano’s ownership, there was no institutional or business use, and so the change should not be viewed as a conversion because the applicants bought it as a residence, and so the accessory use disappears. He prefers to treat the property as residential.
        Jim asked about the proposed use. Nora explained that it involves testing of materials using electrical methods, and that the testing would be done at clients’ sites, rather than at this site. This site would be used for ordinary business records storage and storage of small equipment about the size of a stereo system. George asked if chemicals are used. Nora, who said she is president of the company, a small woman-owned business, said the business is entirely green and no chemicals are used. Kevin has a PhD in the technology area involved. Walter explained that the ZBA needs to determine the kind of business, since there are restrictions. He asked about the number of employees. Nora said it would be a hardship to have a limit on the total number, but expected no more than 5-6 on a daily basis. Kevin said he expected most would telecommute.  George asked if the number of parking spaces is adequate. Nora said yes, and that there could be 9 people there for a meeting. Marcia asked if parking spaces are existing or proposed. Kevin said that the garage has been removed, and a car port serves two cars. The rest of the parking is unmarked on grass. George asked about septic. Kevin said it is there and working. David Washburn said he was there representing his mother’s estate, listening.
        Walter asked if it would be a hardship if part of the decision is to impose a condition that at no time would more than six full time employees be on the site 40 hours/week, noting that this is a residential area and not set up for business. He asked what the plans are five years out. Nora said they would not still be there. Kevin said that if the number of employees is too low, it would be a hardship. Nora said they would move if the business got too big, and didn’t know if six would be adequate.
Deliberations: Jim said that the ZBA needs to figure out what this business is, so that the board can put the office building in context in the residential area. Walter pointed out that section 4.42 does not apply, and that the use of the rear building could be called accessory per Table 4.1 as office/studio/restaurant. Conversion to cottage industry could apply. He considered section 4.46 for conversions. George said that 4.48 could apply. Walter noted that this would require going through the Planning Board. Vickie said that the Planning Board felt they would need to do site plan review with the ZBA. Alan agreed. Vickie said that Walter Mitchell had advised that the treatment should be based on intent. Jim concluded that the property should be called a residence. Alan agreed. Walter moved to table the hearing to 7:40 pm on October 21; this was seconded by Alan. Motion passed unanimously.

Lyme Nursery School, Applicant, Permit Application 04-092, M402/L51
Proposal: build 1700 sf building, well, wastewater treatment system, access drive, and 8 space parking area at 155 Dartmouth College Highway.
Lyme Nursery School proposes to build a new nursery school on the property of Lloyd and Mary Nichols in the Rural District. They propose to annex 0.3 acre from the neighboring lot (52) from the Nicholses making a total of 0.94 acre. An annexation and site plan review hearing will be required by the Planning Board. This requires a special exception to place an institution in the Rural District under Table 4.1, a special exception to create a non-conforming lot with existing development under section 8.35, and a special exception under section 5.13 to replace the septic system within the property setback. Vickie read a letter from abutters Jane and Robert Buchanan, indicating no objection. Chet Pressey from Pathways Consulting said that the purpose of the boundary line adjustment is to allow the project to meet the setback requirements from wetlands. George asked about the number of students. Julie said there would be a maximum of 34. Jim asked what sequence would allow construction of a 1700 sf building. The 1989 pre-zoning trailer occupies 909 sf. The use is residential. Creating a non-conforming lot of 0.94 acre allows a building of only 522 sf, although 909 sf exist. Addition can be added through 8.25, although the non-conforming lot was not pre-zoning. He did not see how a 1700 sf building could be built. Chet said that the present use is not being expanded, and that a new use is proposed, so he did not think 8.25 was applicable.
        George referred to Rod Finley’s letter of September 7, which refers to section 8.34E as a source of flexibility for the board. Jim did not agree. Walter noted that sections 8.31 and 8.33 deal with demolishing former buildings so the lot is vacant, and uses are limited to residential, agriculture, forestry, and outdoor recreation, so thought that the only option is to expand the existing building. Jim said that the trailer is too close to the road to do that, and Julie said it would be dangerous for the nursery school students. Mary Nichols had no comment. Vickie observed that there is plenty of room for lot coverage, and that the pre-zoning footprint is 909 sf. Walter said that the issue is maximum building footprint.
Deliberations: Jim asked why ag soils were not counted. Vickie said it is because there is a building zone. Alan said that 8.34E involves creation of a non-conforming lot as part of a subdivision, which this is not. Chet said that it is a boundary line adjustment, so a new lot is being created with a new deed. The existing use is not being expanded. He argued that 8.34E is the most applicable section, and that all dimensional requirements are at the discretion of the board. The ZBA voted to table the hearing to October 21 at 8:00 pm, on a motion by Jim seconded by Alan.

Ray Clark, Applicant, Permit Application 04-071, M406/L22
Proposal: build a new house, well, and wastewater treatment system at 288 Orford Road.
Ray Clark has applied for an administrative appeal regarding the delineation of the Steep Slopes Conservation District under sections 3.27 and 4.62. If this fails, he requests a variance to complete a house begun without a building permit in the Steep Slopes District in the Rural District. Vickie noted that Ray had come before the ZBA in December, 2002, to build a drive across steep slopes, and she referred to the decision notice. The Planning Board heard the case on May 23, 2003. Ray explained that he had previously come before the ZBA because he was restoring a house on Route 10, and was carving off a lot to build the present house. He laid out the drive in a way to conceal it from view. He said he assumed that the entire question of steep slopes had been resolved at that time. George asked if he had a permit to build the house. Ray said that he did not, and that this is a great source of embarrassment to him. He explained that he had been busy dealing with challenging design issues. He put the drive in over the winter with approval. He added that once he became aware that he needed a building permit for the house, he submitted it the next day, and two months later did not have action on the application, causing him and his employees economic hardship. George observed that Ray is one of the better known and well-reputed builders in town, and found it hard to believe that he had forgotten to get a permit. Tina Clark noted that there is actually a very small building area, and that the decision to shift the house location had been distracting.
        Walter asked if the Planning Board had approved the first building area and whether the ZBA has jurisdiction. Ray said that he had swapped the location of the house and barn, with a total difference of 100 feet on a 158 acre lot. He felt it came down to a definition of what is a substantial change. Walter said that the ZBA had passed on the steep slopes issue for the drive, but asked about the house. Jim said that it appears the new house impinges on steep slopes. Ray said he had brought in a surveyor and engineer, and had gone back to Vickie. He displayed photos of the area before construction began, and said that Jim Kennedy had taken contour points before and after construction. Vickie said that a septic permit had arrived that day. She had spoken with the selectmen, who recommended that a surveyor be hired, but what was submitted was unsatisfactory.
        Vickie explained that the applicant is appealing the manner in which she determines steep slopes, and described her process: she uses 100' horizontal distance as section 3.72.2 states, and looks for 20 feet or more change over a distance of 100', and an average slope of 20% or more. When she measures the 100' distance, she slides it back and forth over the proposal to give the applicant the most benefit. She said she discussed this with the Planning Board a few years ago and used this method ever since. Jim Poage said that the 100' is not in the ordinance, and read the definition of steep slopes as a change in elevation of 20 feet or more and an average slope of 20% or more. Alan asked why the Planning Board used that definition. Jim Kennedy said the intent was to define steep slopes as major areas. Ray said that the property has steep rises and plateaux, and that he has gone to great lengths to put in underground wires so that his project does not intrude on others. Jim Kennedy said that he had prepared the plans, and that it was never the intent to go into the steep slopes area. He said that he has never used the 100' rule; otherwise the original plan would have shown more steep slopes. He concluded that the 100' standard was not applied in the previous site plan.
        George said he appreciated the applicant’s frustration, but he felt that the Zoning Administrator had done her job. Ray pointed to the time that has elapsed during review of his application. Jim Kennedy asked for a ruling on the 100' method. Jim Poage asked him how he computes slope. Jim Kennedy said he uses a clinometer initially and then gets detailed 5-foot contours nearly to the house site, then identifies areas of 20%, then looks for the 20-foot elevation difference. This is how it was originally presented. He said he’d never heard of the 100' method, and said that with that rule, much more of the driveway would be in steep slopes, and the Steep Slopes District in town would double. Jim Poage said that it is ambiguous how it is measured. Andrea Colgan said that she was concerned about the lack of a building permit, but was attending because she was curious how the board would handle the situation. George pointed out that the town had issued a cease and desist order. Vickie stated that the application Ray submitted did not show a location in steep slopes, and then the next application showed the house in a different location. Colin Robinson said that Vickie had used the 100' standard on Bret Ryan’s application and on others.
Deliberations: George said that the question comes down to how the Zoning Administrator identifies steep slopes. The surveyor ran points and has elevations the ZBA can believe in. Vickie agreed. George asked members their opinion on the method. Walter said he didn’t know how to interpret her method, noting that it penalizes the applicant here. He could not find information in the minutes or decisions referring to the location shown for the house. He thought that more information from a licensed surveyor would be good. As a rule of thumb, he is not opposed to using a 20' rise over 100 feet. He is most concerned that the two boards agreed on building locations and that the buildings are not built there. He was surprised the Planning Board had not asked to review it again. Vickie noted that the Planning Board had not put a building envelope on it.  Ray said that the barn is approved for a building permit. Walter recommended that Vickie use the same criteria, and that an applicant could provide more detail if desired, but that the Planning Board should clearly define the method.
        Jim Poage said he was not happy with using 20 feet over 100 feet, but was at a loss for a rule which would work for the Zoning Administrator. He too is disturbed by the change in building location, and thought there must be an envelope in there somewhere. Ray reminded that the Upper Valley Land Trust has a conservation easement that delineates a five acre building zone. Walter said that beyond that, the Planning Board could further define the building area. Ray said the actual area available for building on this 158 acre lot is no more than 200 feet by 200 feet, then further reduced by steep slopes.
        Alan said that the 100 foot method could be used as an initial filter which would be adequate to flag the issue. Here, it is a problem because it had to be applied after the fact. Margot said she felt a lack of expertise on the issue, and noted that the rule had come up elsewhere but had not been questioned.
        Jim said he thought there was a reasonably strong case for a variance because of the constrictions of the UVLT envelope, and that if Ray cannot find a place to build within that, a hardship exists. Walter moved to deny the administrative appeal on the basis that the method for identifying steep slopes using 20foot change in elevation over 100 feet of horizontal length was a reasonable and prudent standard to identify steep slope areas and has been used consistently. Alan seconded the motion. Walter said it is a good standard because when an applicant comes in without details, and Vickie can use this method to look at the application, the applicant then has an opportunity to hire someone to do details. The same opportunity exists for identifying agricultural soils. Alan agreed it is a good starting point. The board voted unanimously to deny the administrative appeal.
        George asked if Ray would like to seek a variance. Ray said that the board has now redefined the steep slopes area, and the house site as originally approved is in this area. The drive has been constructed as approved in the steep slopes area. The building envelope of UVLT limited it here, and the driveway permit showed the building site in steep slopes. He said he believes that this meets the hardship test, because zoning restrictions interfere with use of the building envelope. He said that other points for the variance have been addressed in his application.
        Jim Kennedy said that the exhibit shows surveyed information, and that the detailed plan shows all in steep slopes shaded in. He did not try to reinterpret the site plan. He indicated on the 2001 plan where steep slopes would be. Ray added that 5 acres were excluded from the conservation easement that applies to the rest of the 158 acre lot, and that a setback area was set up for these acres. The locations were all approved, so the 5 acres is now down to one. Alan asked if these contour intervals can be relied upon as more accurate. He said that the 100' method was a good filter but if it could be proved otherwise, it could allow the board to go forward. Jim Kennedy said that the property was reconnoitered originally, and this was relied upon for negotiations with UVLT. Then, a registered surveyor went up to survey the proposed house and barn location, and these calculations were used to define the steep slopes for the driveway application, which was then submitted. Then, after the foundation was built, the surveyor went back and drew 5 foot contours, and this was the basis for the new drawing and what the applicant thought represented steep slopes on the property. Jim said this was as accurate as possible.
        Colin asked how this impacts the variance. Jim Kennedy said it applies to the Simplex test of hardship. George asked Ray where he would set the buildings, knowing what he knows now. Ray said he would not have bought the entire property, and said that the ordinance sometimes penalizes good building. He reminded that after purchasing the old farm, he restored the farmhouse, installed a new septic system, worked around the extensive wetlands on the property, rebuilt a foot and snowmobile bridge over Clay Brook to the benefit of the public, brush hogged the fields on the west side of Route 10 to restore the view, and conserved and otherwise contributed public benefit to the 158 acres. He said that no other building site on the property could have supported the expenses involved in this.
        Vickie said that she is not sure she agrees with the new delineation of steep slopes, and feels that the barn is not in this area. Members agreed that the contours appear different on the June and August 2001 maps. Jim Kennedy said that the most reliable is the Detail Plan of the Graf property revised 9/7/04. George asked if there is any way the buildings could be laid out without a variance. Ray said no. Walter said that Vickie slid the 100 foot distance around and found that the existing barn foundation is in a 15% area. Using the same technique the original house location is in an area under 20%. Ray said that there are also agricultural and wetland buffers to consider. Colin said that if an applicant is unsure whether a buildable area exists, he can add an exclusion to the purchase and sale agreement to allow him to get out of the situation. He said he did not see how the applicant could create a hardship.
        Walter said that if Ray had gotten a building permit based on the originally proposed locations, he presumed the issue would not have come up. Ray said he believes it is still valid whether the house or barn is constructed because the Planning Board approved them in substantially the same location. What’s different here is that the maps approved by the ZBA and Planning Board, all with the best intentions, were inaccurate, but approved nonetheless. Those approvals would be invalid, he said, if the board applies the 100 foot rule. The site creates many constraints, including legal ones. Ray reminded that he is heavily invested in the property and cannot walk away from it. He added that he could not have known when he purchased the property what he knows now. George said he thinks the hardship was self-created. Ray said he understood that he had approval to move ahead. Marcia said it was not a self-created hardship, because the wrong information was being used. Jim Kennedy said that the maps were not wrong but the interpretation was different. Tina asked why the board approved the driveway without considering the house. Walter said that these approvals are frequently a two step process, in which the driveway is approved and the house is considered when more information about it becomes available. Ray said that the Planning Board approved it with the map, and that he didn’t think that moving the house 30-40 feet made a difference. Walter said he should have asked the Planning Board. George said that Ray had started to build without a permit so he created a hardship. Marcia said that this does not describe Ray’s method of doing business.
        George recommended a site visit. Walter asked for more information, including whether, in approving the plat, the Planning Board had approved building locations as a generic location, and whether the board knew that the locations it approved were likely in steep slopes, and whether such a change would have made a difference. Vickie will ask the Planning Board at their meeting later in the week. Ray offered to escort the group at its site visit, which was set for 8:00 am the following morning. The hearing was tabled until 7:30 pm on Tuesday, September 28.

Meeting adjourned 11:04 pm.
Respectfully submitted, Adair Mulligan, Recorder