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Lyme Zoning Board of Adjustment
Minutes: September 28, 2004
Board members: Present - George Hartmann, Chair; Jim Poage, Ross McIntyre, Walter Swift
Absent - Alan Greatorex, Vice Chair
Alternate members: Present - Margot Maddock, Marcia Armstrong, Jackie Glass
Staff: Adair Mulligan, recorder
Public: Ray and Tina Clark, Jim Kennedy, Andrea and Tom Colgan, Colin Robinson
Chairman George Hartmann called the meeting to order at 7:31 pm. He asked Margot Maddock to serve. Ross offered to be a non-voting member because he had not attended the last hearing, but George asked him to sit, noting his experience.
Ray Clark, Applicant, Permit Application 04-071, M406/L22
Project: build a new house, well, and wastewater treatment system at 288 Orford Road.
George invited Adair to make a statement as a member of the public. She noted that in the 2 ½ years she has served as recorder, many applicants have come before the board who have little understanding of the town’s Master Plan or the Zoning Ordinance it upholds. Others approach the board with disinterest in the ordinance, and sometimes even disrespect for its goals. She said that Ray Clark’s work in town has, in contrast, served to implement the goals of the master plan, by protecting open space, public recreation access, and agricultural soils, and especially by preserving historic structures in the course of his projects. She displayed a copy of the New Hampshire Preservation Alliance’s recent newsletter, which carries a citation of a statewide award just given for one of Ray’s projects.
He was similarly recognized last year for his restoration of the Lyme Center Academy. Adair said she hoped that difficulties in working out details of ordinance interpretation would not reach a point where Ray would find it impossible to continue working on projects in Lyme.
George read a statement from Alan Greatorex offered as a member of the public. Alan said he was disappointed in the accuracy of the contours of the site, and felt that the applicant had misled the Planning and Zoning Boards. He opposed granting a variance without significant changes to the application, and even then he was doubtful that it would meet his approval. Walter said he had asked at the last meeting for information from the Planning Board, and shared his correspondence with Freda Swan, Chair of the Planning Board, after receiving her letter of Sept. 24, explaining the PB’s process in looking at building permit applications. The PB had felt that there was an adequate area to build without steep slopes, and does not impose a building envelope. She emphasized
it is never the intention of the Planning Board to allow building in any conservation district. He explained that his questions were generic in nature, regarding process.
Jim Kennedy asked to make additional submissions, and all maps were identified and explained. Bill Lawrence, a licensed surveyor, did all the surveys on the site, beginning 10 years ago. The first map was identified as the Site Plan of 6/6/01. This includes field generated 5 foot interval topography, which Jim considers as accurate as one can get. This plan was accepted by the Zoning Administrator and ZBA for the driveway construction.
Map 2 is the Subdivision Plat dated 8/10/01, created during the subdivision process, by Lawrence Associates. It is at a scale of 1"=100'. The map was made to meet the subdivision requirements of the entire 158 acre parcel, and then a line was drawn in for the conservation easement, and elevations put on that. Jim was not sure how it was generated, but it was done by the surveyor.
Map 3 is the Site Plan Revised, dated 9/7/04. It was revised for steep slopes, the conservation easement, and prepared at the request of the Zoning Administrator to get additional topography and the location of the barn and house foundations, including an interpretation of steep slopes. All elevations were done by a licensed surveyor. Jim transposed all elevations on the map. He noted that one pin has a different elevation on it, and asked Ray if the conservation easement had been adjusted. Ray said it had, but didn’t recall when, and that the original lines had not presented a usable area for the site. The Upper Valley Land Trust had allowed a change in the boundaries for this. Jim said this probably explained the difference in elevation. He said that Map 3 also
showed topography, where they calculated steep slopes to be based on the definition in the ordinance.
Jim presented Map 4, Steep Slopes Exhibit A, dated 9/29/04, (should have been dated 9/28/04) showing that the same information is on it and highlighting the building area. Calculations for this map show the total area NOT in conservation easement to be 5.09 acres, and those in steep slopes to be 1.06 acres, or 21% of the lot. Jim Poage asked if the steep slopes area in Map 4 are the same as previous maps. Jim said no, partly because Map 1 did not calculate field topography past the barn site. After field topography was done by the surveyor, steep slopes changed slightly. Jim then presented Map 5, Steep Slopes Revised Exhibit B, dated 9/29/04, (sic) based on the same site plan, with the interpretation of the steep slopes district as applied by the Zoning Administrator,
with 100' bars. He compared this to Exhibit A, noting that the lot area in steep slopes was 54% of the site, or 2.75 acres. Ray said he had not seen these yet, and noted that both the proposed barn and the existing approved barn are in steep slopes areas. Walter said it depends upon where the 100' measurement begins. Ray said that the methods for measuring are inconsistent. Walter said that Vickie’s method is used as a screening process. Jim Poage agreed that Vickie’s method was trying to discover a 100' plateau. Jim Kennedy observed that Ray may have moved the building but Vickie moved the building zone. Ray added that Vickie had approved the barn which is in the steep slopes area, that it is not his fault that the steep slopes measurement process is not clearly defined, and that the ZBA has always accepted the Zoning Administrator’s interpretation. Jim Kennedy pointed out that when the driveway was approved, the ZBA had also approved the Stearns project, also on
steep slopes, surveyed by the same surveyor, and that the determination was not questioned. Walter said that the Zoning Administrator moves the 100' measurement to the applicant’s benefit. George said that if Ray had applied for a permit, he would have found out Vickie’s interpretation of steep slopes. Ray noted that he had done much work at great expense at Vickie’s request, and that he has relied upon Jim Kennedy for many years. Tina said that the original site plan had a guesstimate on where the house would be built, but at the time, Ray had not decided upon the design of the house. He believed he could build upon the area because there was a plateau.
Ray said that he had been stunned by the tenor of last week’s meeting, and read a prepared statement that emphasized his 20 years of experience building in the area, and detailed the process of the project and the many public benefits involved with the unique combination of preservation and conservation ethics. He considers that the project to conserve the Graf Farm has been a huge net benefit for the town of Lyme.
Tom Colgan asked when the last elevation work was done. Jim said it was done a month ago, on original ground. Tom asked how this could be, with so much site disturbance. Jim said it was all shot with original contours. Ray said that the undisturbed grade is about 9" below the new. George passed around photos from August 5 and 17 from the site, and Ray passed around photos of the undisturbed site. Colin spoke up about an analagous situation with approved but vague building sites in the Estes subdivision, where an approved lot of record, when subjected to the 100' measurement, turned out to be problematic. He said there is no guarantee you can build in this situation. Jim Kennedy said that the Planning Board just approved the Hewitt subdivision in which house sites
were put on. He added that it is his policy not to take on a job unless there is a conservation easement involved and significant protection. Ross asked how he generated slopes. Jim said it was done by hand because he did not trust the computer to do it.
Margot raised the requirements for a variance, and said that the use is not contrary to the spirit of the ordinance, and that the applicant was allowed an incursion into conservation districts. In looking at the public interest, she said it is clearly there. She was prepared to believe someone who said he made an honest mistake in neglecting to get a building permit. Given that there is already a large concrete foundation, she suggested it was the best use of the land to allow construction. Ray said he had talked to Jeanie McIntyre before the meeting, who was concerned that if worthy applicants could not reach agreement with zoning boards in such cases, it did not bode well for UVLT’s future partnerships with developers. Ray continued by addressing the
concerns outlined for a variance: 153 acres are restricted on the property. The site has unique physical characteristics leaving no possibility of strictly applying the ordinance. The project will not alter the essential character of the area but will enhance it. There is a strict conservation easement, so a variance is not contrary to the public interest. Denial would result in substantial, unreasonable hardship for him. The zoning ordinance interferes with reasonable use of his property because the variance will not injure the public rights of others. The cost of moving the house site far outweighs the public benefit to be gained. Steep slopes occur throughout the property, and the Planning and Zoning Boards took this into account in previous approvals. Ray concluded that the double standards for steep slopes were creating problems for the town, and a more adequate definition was needed.
Tom Colgan asked if there was any buildable site other than where the slab now sits. Ray said that there is a saddle at the top of the existing driveway, in front of the barn, with a knob in front. He explained that if this is used, there would be no room to get out of the barn and turn around in a car, and that it would encroach on the southern border of the conservation easement. Physically it could work, he said, but it would not be a good layout. Tom asked about the old field. Ray said it has wetlands soils, steep slope, and would give a view of other homes, including Tom’s. Colin gave his interpretation of legal standards and attempted to submit a document with his interpretation of whether Ray’s application met the test for a variance. Ray
objected to that submittal, and George refused to accept it, but gave Colin permission to read it aloud. Colin then read it, pointing out that the state supreme court had drawn a distinction for use variances and others, in the Boccia case of May 25, 2004. Ray referred to Bernie Waugh’s fact sheet for planning boards on variance tests.
Deliberations: Walter said he believed the large part of the difficulty had arisen due to the mistake in not getting a building permit. If Ray had applied for one, he said, he would now have a permit. Walter recalled that the previous week’s motion was to assure that the Zoning Administrator had the power to reject applications based on use of a consistent rule of thumb. In normal proceedings, this would have sent the application to the ZBA and led the applicant to get more accurate measurements. This process did not take place until the previous week. Walter continued that he could see many ways to determine steep slopes, and that the zoning ordinance has a clear definition. He said that Jim Kennedy had been consistent in his approach to measuring them. Vickie has also measured them with a prudent and
reasonable approach. Walter said that the two approaches are not inconsistent. He pointed to the maps submitted on 9/21 and 9/28, and asked whether the foundations for the house and barn are outside the steep slopes district. He decided that this is a reasonable conclusion.
Walter described his experimentation in measuring around the foundations, and found that on the north edge of the house foundation, the land is just barely a 20% slope from elevation 550' to 565' over a 75 foot length. The southern border of the building is just under a 20% slope. He concluded that a reasonable person trying to apply the ordinance to the site would conclude that it is a tough site, that there are other flatter areas but that they would give worse siting, and that the 100' length is not enough difference to allow him to stand up in court and say that the site has steep slopes. He concluded that the barn and house are not in the steep slopes district and that it was not worth continued conflict. He did not see that a special exception would be required for
a building permit, and concluded that there was no violation of the steep slopes district as he read the zoning ordinance. He added that Vickie had done her job properly by bringing the issue before the ZBA.
Ross endorsed Walter’s approach, noting that the rule of thumb that had been used is a handy screening test, and that this screening test should then be taken to the area where a decision could be made. He had also visited the site, and notes that contours have been changed, but thinks that it is appropriate to move ahead. Marcia said she had also measured the site, and felt that the difference was too close to hold up for argument. Jim Poage said that Vickie’s method would discover an area that is steep over a distance of 100', and that Walter’s interpretation is adequate in terms of the ordinance. Margot agreed with Walter that the distinction is too close to use to deny the building permit. George said he still had a problem with the fact that a
building permit had not been sought. Walter agreed.
Walter referred to the decision memorandum of September 21,and said he did not think it was inconsistent with the board’s current track, and moved to grant a building permit for construction in the locations shown on the site plan revised 9/29/04, because they are not in the steep slopes conservation district. Margot seconded the motion. Walter listed the following findings of fact:
1. The Applicant received subdivision approval for the property at 288 Orford Road in the Rural District from the Planning Board as a subdivision based on the Subdivision Plat dated August 10, 2001.
2. The Applicant received a special exception on December 19, 2002 from the ZBA to build the driveway to the proposed residential site through wetlands and steep slopes based on a site plan dated June 6, 2001 by James Kennedy, Landscape Architect. This residential site lies within a 5 acre area set aside for development in a conservation easement on a substantial portion of the rest of the property that was granted to the Upper Valley Land Trust.
3. Negotiations between an applicant and the Upper Valley Land Trust for the purposes of creating a conservation easement have no implications as to the viability of building within the land set aside for development.
4. Topographic delineations on the Subdivision Plat and the Site Plan were derived from field survey data. They showed adequate locations for buildings within the exempted area that were outside the steep slopes conservation district.
5. In preparation for final building siting, detailed topographic profiles were prepared by Lawrence Associates and shown on a revised site plan dated September 7, 2004. The slopes within the exempted area differed somewhat from the original site plan and plats. The final locations of the house, barn, septic system and driveway terminus were modified from the original proposal to provide practical siting for each structure and to work with the limitations posed by ledges and views. A detailed plan was prepared in which the structures were located outside steep slopes areas (as interpreted by James Kennedy, Landscape Architect).
6. The Applicant failed to apply for a building permit, in violation of section 9.21 of the Ordinance, thereby avoiding and denying himself the benefit of a pre-construction site review by the Zoning Administrator.
7. Approval to build at the proposed locations was denied by the Zoning Administrator based on the ZA’s determination and interpretation of the definition of Steep slopes. This determination relies on the definitions of Slope, Average, and the Steep Slopes Conservation District, section 3.27.2. Specifically, the ZA used a method of determining the 20 % grade whereby the elevation difference of 20’ is applied to a minimum horizontal traverse of 100’. This definition and slopes determination method was appealed by the applicant. On September 21, the ZBA denied the appeal determining that the method used by the ZA is a reasonable and prudent standard and has been used consistently
8. The applicant then requested a Variance to build at the locations defined in the revised site plan dated September 7, 2004. Upon review of the siting plan for the structures (a barn, house and septic system), the ZBA finds that the Barn and Septic system lie outside areas that would be identified as Steep Slopes Conservation District by the conventional method used by the ZA to determine slopes. Portions of the house are within the Steep Slopes Conservation District as defined by this method.
9. The ZBA reviewed detailed topographic features of the site through a site visit September 22, and by reviewing the revised site plan dated September 7, 2004. The Board finds that although portions of the house site would fall within Steep Slopes Conservation District by the “100ft.” determination, the house would not fall within this district if the horizontal traverse was 95’ on the northerly end of the building, and would not fall within the district using 100’ at the southerly end. Furthermore, the Board finds that the Zoning Ordinance does not specifically delineate the distance over which an “area” is to be measured to qualify to fall within the Steep Slopes District. A literal
interpretation of the definition as presented in Section 3.2.7.2 yields no substantial basis for using 100’ as a fixed metric when determining steep slopes.
10. Abutters were present who asked questions but did not express an opinion for or against the project.
The motion passed, with Walter, Ross, Margot, and Jim voting in favor, and George opposed. George noted that the town must strictly insist upon a building permit, and that violation of the Ordinance can be a misdemeanor or even a felony, according to New Hampshire law.
Ray withdrew his application for a variance, and apologized for putting the board in such a predicament. He said that neglecting to apply for a building permit was a genuine oversight on his part. He said he respects the laws of the town, but noted that the zoning ordinance is a difficult one to interpret. George responded that section 9.21, which requires a permit before building, is not at all difficult to interpret.
Meeting adjourned 9:25 pm
Respectfully submitted,
Adair Mulligan, Recorder
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