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ZBA Minutes 2004/10/27
Lyme Zoning Board of Adjustment
Minutes: October 27, 2004

Board members: Present -Alan Greatorex, Vice Chair, Walter Swift, Jim Poage, Ross McIntyre
Absent - George Hartmann, Chair
Alternate members: Present - Marcia Armstrong, Jackie Glass
Absent - Margot Maddock
Staff: Vickie Davis, Zoning Administrator; Adair Mulligan, recorder
Public: Scott Nichols, Lloyd Nichols, Tom Yurkosky, Nancy Wray, Wayne Pike, Dorf Sears, Rod Finley, Julie McCutcheon

Minutes of the October 21 meeting were amended by Jim to add the following sentence to the Roby discussion: “moving the shed to the east does not allow a level dooryard.” Minutes were approved as amended on a motion by Ross, seconded by Jim. Walt will prepare minutes of the site visit. Vickie read a letter from the Robys explaining that they have withdrawn their application because lot boundaries may have been incorrectly described. They are having them re-surveyed.

Tarm USA, Inc., Applicant, Permit Application 04-099, M201/L73
Proposal: add sign at 5 Main Street in the Lyme Common District.
Vice Chair Alan Greatorex appointed Marcia Armstrong to sit on the case to fill the five member board.
James and Lloyd Nichols of Tarm USA, Inc. propose to add a 30" x 72" sign to the Nichols Hardware building in the Lyme Common District. They are requesting an Administrative Appeal to increase their total area of signs. If this fails, they are requesting a variance to § 6.22A of the zoning ordinance which states, “the total area of on-premises signs on any lot shall be limited to 16 square feet per side for businesses...” Scott Nichols explained that there are five businesses in the Nichols Hardware building at present: the hardware store, Tarm USA (which has 3 employees upstairs), the Ledyard Bank, the post office, and Dan Freihofer’s business upstairs. The café will soon reopen. Scott said that Tarm has been on the premises since 1993, and that customers trying to find the business have trouble since there is no identifying sign. Scott added that in the past there has been more signage on the property than is allowed, and observed that the ordinance and master plan encourage multiple use of structures for businesses but does not seem to reflect this in the signage conditions. Walter asked about the present number of signs, and it was determined that all were grand fathered except for the bank’s small hanging ATM sign, and the Ledyard sign which the bank put up without a permit, but which replaced a grand fathered Fleet Bank sign. Jim pointed out that inside window signs do not count. Scott agreed, but stated that this did not make sense.
        Ross said that as he reads § 6.22A, it does not indicate signs allowed “per business.” Scott pointed out that retail businesses need larger signs than office businesses, and that Nichols is one of only a very few retail businesses in Lyme. The proposed sign would go between the upstairs windows on the building, and would not replace the Nichols Hardware sign. Walter asked if there is time for the Planning Board to recommend changes in the signage part of the ordinance. Vickie said there is, but action would not be taken until March town meeting. Marcia said that the ordinance does not address the question of multiple businesses on one lot. Walter asked about modifying the Nichols sign to shrink the font and include Tarm. Scott said that the purpose of the zoning ordinance is to preserve the rural character of the town, not to gentrify it, and given the number of businesses in town and the available area for signs, it seems unduly limiting. He hopes the Planning Board will rewrite the section to allow what is in town now to thrive.

Deliberations: Alan agreed that the ordinance is confusing, but agreed with Ross’s interpretation of 6.22A, that the total area of on-premise signs is for the lot and limited to 16 sf. He agreed with the Zoning Administrator’s decision. Marcia said that it says “on any lot” not “per business.” She said she thinks this is unfair, but is how it is written. Walter agreed. Ross said that there are reasons to limit signs in town, and that this is a special situation with a large number of businesses on one lot. He was inclined more to have the Planning Board deal with it than to issue a variance because of the precedent that could lead to problems. Walter added that the Nichols building is large. He said he would have trouble justifying a variance as the application is now written. Scott asked to have the variance considered. Ross moved to deny the Administrative Appeal for an increase in the total area of signage, finding that the condition has existed for some time, and that the wording of the ordinance is clear. He moved that in the meantime, § 6.22A be referred to the Planning Board to look at whether it is fair to people owning retail businesses with more than one business on the lot. Marcia seconded this motion, and it passed unanimously. Jim moved to continue the hearing on the request for the variance to the next regular meeting at 7:40 pm on November 18. Ross seconded this motion, and it passed unanimously.  This was acceptable to Scott.

Tom Yurkosky, Applicant, Permit Application 04-097, M402/L25
Proposal: build a two story addition at 71 Preston Road.
Vice Chair Alan Greatorex appointed Marcia Armstrong to sit on the case to fill the five member board.
Tom Yurkosky proposes to add 480 sf to his house in the Rural District. This requires a special exception to exceed the maximum building footprint under § 8.25. He plans a two-story addition on the south side of the existing building, which will add one bedroom, but two small existing bedrooms will also be converted to one, for no net change in the number of bedrooms. Walter noted that there would be no change in the septic requirements.
Deliberations: Jim noted that a deck had been built by a former owner without a permit. Vickie said this is not a ZBA issue, and that she will issue a permit for it. Ross moved to approve construction of a two-story addition on the south side of a pre-zoning building. This increase in the footprint can be granted as a special exception under § 8.25. There are no problems with conservation districts or setbacks. No abutters were present. The applicant is allowed 1000sf of expansion under 8.25. The project will use 480 sf, leaving 520 sf for future expansion. Conditions of approval are that best construction practices will be used, including erosion control, and that the project will be built as described in the application. Walter seconded the motion and it passed unanimously.

Nancy Wray, Applicant, Permit Application 04-093, M407/L6
Proposal: widen driveway, add two car garage, renovate current garage into family room, add greenhouse at 149 Orford Road.
Vice Chair Alan Greatorex appointed Jackie Glass to sit on the case to fill the five member board.
Nancy Wray proposes to add a garage on to her home in the Rural District and convert the existing attached garage to a family room. She is applying for special exceptions under § 8.25 to exceed the maximum building footprint and lot coverage, § 8.22 to encroach into the property setbacks, and § 8.24 to encroach into the Shoreland Conservation District. She has applied for an Administrative Appeal that a retaining wall should not be included in setback or conservation district encroachment or lot coverage and that a portable garage is not a structure. If this fails, she requests a variance to exceed the encroachment allowance into the property setbacks and Shoreland Conservation District.  Nancy explained that she now cannot put two cars in her garage because she would have to back out over the bank. Her plan is to put the garage closer to the road so it wouldn’t require fill or change in the land, but she needs to add fill to use the garage. She called NH Department of Transportation, and they visited the site and encouraged her for public safety reasons to pull out onto Route 10, rather than to back out. Jim explained that the original premise was to turn the garage into a family room, and asked why that could not be put on the north side of the house, so the garage could be used as it is. Nancy said even if she left it as is she could use the garage for two cars only if she expanded the driveway further.
        Jim said he did not understand the square footage ascribed to the retaining wall. Ross said that during our prior review of another case for this site, the average width of the backfill against the wall was estimated and counted against the encroachment. The wall was built before it was approved. However, because the effect of the wall was to cover up the natural slope, it gave additional percolation surface. He said that the wall itself was an expansion, but that the soil behind it should not be counted because it does not change the amount of water going into the brook. Vickie said she did the calculations both ways but that the 320 sf of encroachment was counted in the previous decision. Ross, Walter, and Jim agreed that counting 320 sf for the wall was an error, and that only the wood structure itself should be counted. Nancy said the area is covered mostly with soil, with a few flagstones. It was agreed to assign one foot of space to each of the 48' of wall.
        Dorf Sears said she was concerned with water quality in the brook, and had observed a film of oil on its surface downstream of the North Thetford Road bridge, which takes a lot of truck traffic. She has put a conservation easement on her land across from Nancy Wray’s, for wildlife.
        Jim asked about the amount of construction necessary to widen the driveway and asked whether state approvals are in place. Nancy said that DES staff visited the site the previous day. There is a question of DES jurisdiction. The state has given a driveway permit as long as drainage from Route 10 is allowed to run onto the lot.
Ross called attention to the Conservation Commission’s comments on the drainage, and advised that the board should follow and reinforce the CC’s advice.
Deliberations: Ross said that the most critical aspects are impacts to the water and Shoreland Conservation District. He cited the letter written by the Conservation Commission after it held a five member site visit. The critical paragraph is that the CC supported the project with a number of conditions, and would not recommend any further disturbance on the lot. He added that the work would require heavy duty erosion control. Wayne said that an excavator would dig to hardpan and then lay the wall. This has to be done in fall when there is less water. Jackie asked if dynamite would be used. Wayne said no.
        Jim moved to grant a special exception under §s 8.22, 8.24, and 8.25 for a project to add a garage and  greenhouse and expand the driveway, to increase lot coverage and building footprint and incursions into the Shoreland Conservation District and setbacks. The house and lot predate zoning by well over a century. An earlier calculation of the wall and backfill of 320 sf are unrealistic, and deemed by the board to be inappropriate. A realistic calculation for the building footprint for the wall is 48sf, which does not include backfill. There is an existing driveway permit. The primary motive for the project is to improve the safety of exit onto Route 10. Alternative designs for the addition of a family room require greater intrusion into the Shoreland. The owner plans to remove the temporary garage. Of the 1000 sf of expansion permitted under § 8.22, 178 sf remains; under 8.24, 154 sf remains; under 8.25, 226 remains, and 861 sf of lot coverage remain. 24 sf of deck encroachment into the conservation district, previously unapproved, is included in these numbers. The Conservation Commission agreed and informed the landowner that it would not recommend additional expansion, and this condition is attached by the ZBA.
        Special exceptions are permitted subject to conditions. Conditions include a requirement for final approval from the state for construction of the drive and garage. The Lyme Conservation Commission’s recommendations are to be included, and best building practices will be followed.
        Vickie asked the board to define whether a portable garage is a structure. Alan said that the question is how temporary is temporary. Jim said that the ordinance specifies that campers have to move after a few months. Ross said that size and location are issues too, and pointed to Dan Bailey’s new turkey shelter, noting that such large structures are built similar to tents but are guaranteed sound for up to 15 years. Walter said that the ordinance is not clear on it, and does not cover the issue; he surmised that the Planning Board should look at it.
        Jackie seconded Jim’s motion and it 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.
Vice Chair Alan Greatorex appointed Jackie Glass to sit on the case to fill the five member board. He re-opened this hearing, which was continued from the previous meeting, in deliberations. Walter read his draft motion, and comments were made. Lloyd Nichols noted that the septic system is located on the west side of and next to the trailer. Alan noted that the applicants are changing to an institutional use listed in table 4.1 which is permitted by special exception under 4.20. Jim said that Planning Board review for fire protection and parking should be done. Lloyd said that there is no access to the property except through his land, because the Wilmots had sold their right of way to the state when Route 10 was built, but he will give an easement for a drive.
        Walter then moved to grant Special Exceptions to Lyme Nursery School for the conversion of use of the property (M402/L51) from residential to institutional use under §4.1 of the Zoning Ordinance, creation of a non-conforming lot with existing development under §8.34 of the ZO, and replacement of a septic system within the property setback under §5.13 of the ZO. The Special Exceptions are granted based on the following findings and subject to the conditions listed below.

Findings of Fact
1.              The existing property contains a mobile home, septic system and drive.  At the time of passage of the Ordinance, a trailer and porch sat in the location of the mobile home with a total footprint of 909 sq. ft.  The trailer and porch were replaced by the mobile home in 1994.  The mobile home includes a deck with a total footprint of 990 sq. ft.   
2.              The total lot area is 0.94 A with a net lot size of 0.60 A after conservation district reductions.  The mobile home and septic system are entirely within the front setback to Rt. 10 and within the wetlands conservation district.
3.              The existing structure is non-conforming on a non-conforming lot by virtue of dimensional limits for minimum lot size, road frontage, footprint and lot coverage established in table 5.1.
4.              The Applicants propose to annex 0.3 A from Lot 52, and relocate the principal structure on the property outside the front setback and outside the wetlands conservation district.  They propose also to replace the septic system and locate it outside the wetlands conservation district.  The footprint of the principal structure is 1700 sq. ft., an increase of 791 sq. ft. above the pre-zoning footprint, and 219 sq. ft. less than that which would be permitted by special exception in expansion of an existing non-conforming structure by §8.23, §8.24, and §8.25 of the ZO.  
5.              The plan submitted by Pathways Consulting LLC dated 8/26/04 (time stamped SEP 07, 2004) provides details on the proposed conversion.  The lot size adjustment, replacement and relocation of existing structure and replacement of the septic system each reflect a reduction in the non-conformity of the property.
6.              The annexation of the additional acreage results in creation of a non-conforming lot with existing development (§8.34).  Under §8.34, the ZBA is authorized to grant a Special Exception subject to conditions of §10.50 and requirements listed in §8.34 paragraphs A. – E.  The Board finds that these requirements are met.
7.              The conditions of §10.50 1.,2.,4.-8.,10.,12.-14 have been met.
8.              The conversion of use from residential to institutional use is permitted by special exception under §4.20 and Table 4.1.
9.              The replacement septic system as shown in the plan meets the conditions of §5.13.  Specifically paragraph §5.13-D.3 permits replacement systems within the property setback.
10.             There was no opposition to the project expressed at the hearing and a significant number of supporters were present.

The grant of Special Exceptions and issuance of a permit is subject to the following conditions:
1.      Site plan review by the Planning Board is required under §12.0.  This review should address factors identified in paragraphs 3, 9, and 11 of §10.50.
2.      Approval of the septic system by the State.
3.      Formal review and acceptance of the plan by Lyme’s Fire and Police Department with respect to traffic flow and fire safety.
4.      Best construction practices to minimize effects on the wetlands conservation district.
5.      The applicant must receive an easement for driveway access to Lot 52 to be recorded in the Grafton County Registry of Deeds.

The motion was seconded by Ross and passed unanimously.

Crossroads Academy, Applicant, Permit Application 04-078, M401/L56
Proposal: gravel pit reclamation at 95 Dartmouth College Highway.
Vice Chair Alan Greatorex appointed Marcia Armstrong to sit on the case to fill the five member board. He re-opened this hearing, which was continued from the previous meeting, in deliberations. Ross read his draft motion, and comments were made.  The comments did not result in any changes to the draft.  The motion is as follows: that Crossroads Academy be granted variances from §4.61, §4.62, and §4.63 in the Commercial and Rural Zoning Districts in order to reclaim a gravel pit on Lot 56, Map 401.  The reclamation represents one phase of a plan to convert the former gravel pit to a site for construction of new facilities for Crossroads Academy.
        History: In earlier action, February 19, 2004, the Board granted special exceptions to the applicant for a Planned Development, for Institutional use in the Commercial District, for locating an access way for a well and waterlines in the Wetlands Conservation District, for a wooden bridge to cross Hewes Brook in the Wetlands and Shoreland Conservation District. It also granted a variance to locate a parking lot in the Front Setback.

Findings of Fact
1.              The gravel pit was excavated during the construction of Route 10 during the mid 1960s.
2.              When Crossroads Academy acquired the lot it also acquired the responsibility and bond for the restoration of the gravel pit site.
3.              The margins of the gravel pit were established prior to the adoption of the zoning ordinance.  The gravel pit intrudes into the Shoreland and Wetlands Conservation Districts and include Steep Slopes as shown on the Gravel Pit Restoration Plan prepared by Pathways Consulting, LLC and received by the Zoning Administrator on 9/7/04.
4.              Five wetland areas exist within the pit site. These are the result of drainage created by the excavation of the pit and are exempt from regulation on the basis of their small size.
5.              Several ZBA members and alternates visited the site with members of the Lyme Conservation Commission on October 16, 2004. Surrounding the excavation are banks of overburden apparently pushed aside during construction of the pit. In several areas these banks are located adjacent to Hewes Brook and a smaller stream on the northern boundary of the pit. Portions of the restoration will include returning certain of these contours to a condition approximating those existing prior to the piling of the overburden.
6.              The ZBA has received Comments from the Lyme Conservation Commission resulting from their site visit referenced above and dated 10/21/2004.
7.              Given the location of the pit and the Conservation Districts referenced above, there is no reasonable alternative to intrusion into these districts if the gravel pit is to be reclaimed.  The applicant’s letter prepared by Pathways Consulting dated 9/7/2004 adequately addresses the requirements of Article X, § 10.60  paragraphs A, B, C, D, and E. and is included as a part of the findings of fact.
8.              Construction of a new school on this site adjacent to the school’s existing location is advantageous to the applicant and denial of the variance would have adverse consequences for the applicant.  
9.              Two abutters who attended the hearing offered no adverse comments concerning the proposal.
10.             The Planning Board has reviewed the intrusion into steep slopes at the gravel pit and approved the restoration plan.

Conditions for Approval:
1.              The work to be performed in the Conservation Districts will adversely impact these districts unless performed with great care.  The recommendations contained in the letter from the Lyme Conservation Commission to the ZBA of 10/21/04 must be implemented. The Conservation Commission must re-visit the site when plans for the access road and site drainage are developed.
2.              The restoration must be done as described in the plan and supporting materials prepared by Pathways Consulting and received by the ZBA on 9/7/2004, modified, as necessary, to accommodate the requirements of the Lyme Conservation Commission, described above.

Jim seconded the motion. Ross noted that he expects that the Lyme Conservation Commission’s letter will be made an appendix to the decision. Alan asked if a bond for pit reclamation exists. Rod confirmed it does.  The motion was passed unanimously.


Meeting adjourned 9:50 pm
Respectfully submitted,
Adair Mulligan, Recorder