Lyme Zoning Board of Adjustment
Minutes: March 17, 2005
Board members: Present - George Hartmann, Chair, Alan Greatorex, Vice Chair, Walter Swift, Jim Poage, Ross McIntyre
Alternate members: Present - Marcia Armstrong, Margot Maddock
Absent -Jackie Glass
Staff: Vickie Davis, Zoning Administrator; Adair Mulligan, recorder
Public: Richard and Janet Hoyt, Nancy Grandine, Charlie Hirshberg, Bob Barnum, Maryann and Hoyt Alverson
Minutes of the January 20 meeting were approved on a motion by Ross, seconded by Walt.
Agreed that for the July court appearance for the Roby/Stout case, Ross will take the lead for the July 11 week, Walter for the July 18 week, and George will act as backup.
Richard and Janet Hoyt, Applicants, Permit Application 2005 -012, M407/L97
Project: remove existing barn/studio and build new barn/garage at their property off 65 Pinnacle Road
Walter recused himself, as an abutter, and George appointed Marcia to sit as a regular member.
Richard and Janet Hoyt propose to remove a barn/studio and build a new garage/barn in the Rural District. They are requesting a special exception under Section 8.24 to build within the Steep Slopes Conservation District. If this fails, they will request a variance. They are also requesting a determination of the Ridgeline and Hillside District. If needed, they are applying for a special exception under section 4.66 to build in this district.
It was noted that there are three underground houses in Lyme, including the one at this property, and there is nothing in the ZBA records about how they were treated, because they were all built before zoning. George asked if the subsurface portion of the proposed garage would count as lot coverage. Walter consulted the ordinance and found that the definition of lot coverage says that it is exclusive of subsurface structures. Walter noted that he moved to the area in 1990, and the Hoyts’ drive is 75% on his property, and is steep. The studio/barn is not in good shape and it is a hazardous trip to the house. His concerns, regarding potential effects of blasting on his well, and the possibility that the drive could become a town road, have been addressed. He feels
this project is sensible. Dick Hoyt said that the new structure would be partially buried and what would be seen would be small. It would house no animals. Trees would be left and added, and the structure would be less visible than the present one.
Jim agreed that subsurface structures are not included in lot coverage, but was concerned about abuse of this definition through unfettered coverage of lots by such structures, since the purpose is to retain natural infiltration of water. He gave a hypothetical case of a one acre house on a one acre lot. In this case, however, the lot is so big that the structure would not make much difference. Alan agreed.
George asked about the Ridgeline and Hillside District. Vickie produced a map of the current district and said that the ZBA has to determine, in the context of a case, whether or not the map represents the current district. Areas within ½ mile of a town road are not shown as in the district. Walter said that the current definition is unsatisfactory, and can be interpreted in various ways. He said the current barn is not visible from anywhere, and Marcia agreed.
Deliberations: Jim said that properties on the ridge visible from East Thetford Road should be included in the Ridgeline and Hillside District. Ross said he is reluctant to decide that the map is consistent with the intent of the ordinance, and advised that the map should be the topic of a Planning Board meeting to which the ZBA is invited. Alan agreed. Ross said that since the new structure would be less visible than the old one, the Ridgeline and Hillside District question is moot. Voted unanimously on a motion by Alan, seconded by Marcia, to grant a special exception for the project under Section 8.24.
Findings of Fact: Section 4.66 does not apply to the application. Construction will not significantly violate the intent of the conservation district and the structure cannot be reasonably located outside the district. The project will add 509 sf of lot coverage, leaving 455 sf for future expansion. The definition of lot coverage indicates that underground structures are not included in the calculations. The project will not involve significant increases in sewage loading. Conditions of section 10.50 have been met. An abutter was present and spoke in favor of the project. The project reduces a current non-conformity in removing a barn which may be too close to the lot line. The new barn will be set back. Whereas the current definition of lot coverage with respect to subsurface structures may have been intended
to deal with water storage tanks and other such appurtenances, the board recognizes that application of this restriction to dwellings was probably not contemplated by those who wrote the ordinance. In this case, the size of the lot and presence of an existing subsurface structure allows the project to fit nicely and meets approval. By interpreting the ordinance in these terms the board does not wish to set precedent to have subsurface structures not considered in lot coverage.
Conditions: The barn/garage will be built according to best construction practices.
Nancy Grandine, Applicant for James and Patricia Brown, Permit Application 2005 -017, M402/L98
Project: build a new house, septic system, well, driveway, and attached garage at 147 River Road.
Walter took his place as a regular member. James and Patricia brown propose to build a house on the property of Karen Townsend, et al, in the Rural District. This requires a special exception under section 8.31 to build on a vacant non-conforming lot (there are abandoned trailers on the lot). It also requires a special exception to build a driveway within the Shoreland Conservation District under section 4.63 and build the house and driveway within the Agricultural Conservation District under section 4.64. Variances are requested from section 5.10 to exceed the maximum building footprint and lot coverage and encroach into the property setbacks if not considered part of special exception under section 8.31. A variance is requested to build the house within the Shoreland Conservation District.
Nancy Grandine said she represents the Browns, and that they need to decide by the end of April whether to purchase the lot. She noted that the town has treated the lot as developed, since there are trailers on it. The current trailers are in the floodplain, as is a shed. If those are considered development, she asked that the board treat the project as an expansion of existing non-conforming structures. The Browns wish to treat the trailers as abandoned. She noted that she and the Browns have no authority to waive the sellers’ right to claim that the lot is developed, and that the sellers have paid taxes on the lot as a developed lot. She continued that one of the trailers is an old Airstream trailer, and that there is much other debris on the property that would
be cleaned up, resulting in a great improvement to the property. She did not think it had been used since 1992. It was a summer camp area for the owners’ grandparents. The lot has 300 feet of frontage. She suggested that the ZBA could give a special exception for dimensional requirements set forth in Table 5.1. The lot is 1.67 acres. The proposed house is 61 feet from River Road, and could be set further back and not run into the floodplain.
She described the lot, noting that it drops from the road, becomes level, and then rises with a natural tree buffer, so runoff would not be directed straight into the river. If the house is moved further, trees would need to be removed. The project does not intrude on the minimum side setback on the south side, but on the north side, there is a possible area for septic that could intrude. The rear setback conditions are met. The maximum building footprint and lot coverage are not met, largely because the project is in the Shoreland Conservation District. Nancy said that this lot is one of a series of relatively small lots along the river on which all exceed total lot coverage restrictions, and that some house footprints are smaller and some larger. Most of the drive is
in the Shoreland Conservation District, and the north corner is in the side setback. She said the project qualifies to build on agricultural soils, but that because the lot is under 3 acres, she expects that the board would waive the requirement for a conservation easement on the rest of the property.
Nancy said that the project was referred to the Conservation Commission, which recommended that the lot not be developed because of the Shoreland Conservation District. She said the CC was concerned about erosion. She agreed that there has been erosion on the Connecticut River, and that property has been lost as a result. She said that the Browns would stabilize the riverbank to prevent further erosion, and that some of the riverbank has already been stabilized. Charlie Hirshberg said that a 60 foot section is currently eroding, and described the three foot daily water level fluctuation behind Wilder Dam that is part of the cause of this erosion. The new owners would stabilize the bank with stone riprap and fabric in the 3 foot zone and then vegetate the bank above. The
house is placed back from the existing riparian buffer of pine and undergrowth, 143' from the riverbank. He noted that other developed properties nearby have little or no buffer. Hard surfaces comprise 23% of the project, and the steepest slopes are 3 to 1. For runoff control on the low side of the house, there will be a stone drip edge, and he does not anticipate concentrated flows. There will be an infiltration area, or rain garden, to pick up runoff. The soils are a fine silty sand which percolate 5 minutes/inch, and are relatively permeable. All proposed development is outside the 100 year floodplain based on the FEMA maps and nearby benchmarks.
Bob Barnum, an abutter, said he has no problem with the project and that the lot needs cleaning up. He said the riverbank needs work, and that he would prefer the lot be used for a private home than for a public access to the river. MaryAnn Alverson said she supports the project, and that she feels there is a neighborhood except for this lot. She does not like how the property has been used. Her house was built in 1988, and Bob’s was built in the 1960s, both pre-zoning. Bob said that the trailers had not been used since he bought his house in 1988.
Ross said that when the lots were created, the developer envisioned small fishing camps, and that times have changed. He said that the reason for the town’s current regulations is to help guide the kinds of development in town. Nancy said that the Shoreland Conservation District is intended to protect the river and general conservation objectives but not to prevent development. The project will maintain vegetative cover. She added that the project is consistent with NH’s Shoreland Protection Act, which calls for a 50' setback and other restrictions on cutting and use of fertilizer. She said that what is being proposed is consistent with the neighborhood and that denial would be an unnecessary hardship, since it is necessary to put a single family house
on the lot, and there is no other way to build the house.
Alan asked if the project’s designer had considered flowage rights on the land. Nancy said she did not know. Alan said this would affect the septic system because it would have to be 75' back from that line. Charlie said the leach field would be 160' from the river. Alan said that the zoning ordinance requires a 200' setback for the septic system from the river.
Ross asked about the size of the trailers. They are 8' by 22'. Alan asked about a second well and whether anyone else had rights to them. Nancy said she did not know but that there are no plans to use this dug well. She believes there is no septic system on the property.
Deliberations: George said the board is confronted with a situation where nearly the entire property is within the Shoreland Conservation District, and the Conservation Commission has recommended no development. On the other hand, the neighborhood is developed, although an adjacent lot is not developed. Ross said that if there were not small lots on either side it would be easy to challenge all the items Nancy had raised. He is concerned that riprap can send the river current to erode other areas, and that erosion does occur. He recalled when River Road residents were evacuated in 1968 during a hurricane when it was feared that Moore Dam upstream would give way. Ross said that the 200' building setback was put there by reasonable people after much thought. Jim said that he did not believe that special
exceptions would suffice. Walter said that it would be consistent with the ordinance to allow construction of a house equivalent to the replacement of the existing structures plus 1000 square feet, but that the proposal is for a house more than twice the size of what could be permitted. He added that section 4.63 does not permit structures or addition of fill in the Shoreland Conservation District. By special exception, non-residential water -dependent use is allowed. He concluded that section 8.31 allows the board some power in different situations to make limited judgment to allow residential structures, but it is quite a stretch to get to a 3000 sf building in the Shoreland Conservation District. He could not see any combination of special exceptions that would allow it. He added that the Conservation Commission had made a recommendation and that the ZBA needs to pay attention to it.
The board considered a table providing the size of neighboring homes and lots, indicating that the proposed development is much larger than what is currently there on the medium-sized to small lots. Walter said that the proposal seems excessive. He reviewed the requirements for a variance, and said that while it may meet the terms of 10.60 A, he is not sure about B. The project would improve a trash situation, and create a coherent group of homes, but another public signed up for a 200' Shoreland Conservation District so he cannot say that denying the variance would be contrary to the public interest. For item C, he thinks the ordinance says that the project should not happen. For item E, he does not see any hardship to the owners, since they could sell the property and
meet the requirements of the ordinance. He said that he does not see substantial justice in granting a variance, and is worried about the effects of doing so on future board decisions. Alan agreed with Walt, and while he said he had a minor difference with what the Conservation Commission claimed, he agreed with its findings in general.
George asked if there is a structural dimension and location that would meet the criteria of the ordinance. Walter said that if the applicant came in with a proposal for 1000sf plus the size of the trailers, he would feel confident in issuing a special exception. Ross noted that the trailers could be gone tomorrow. They total 250 sf. Ross said that a 30' x 40' cape could probably be justified. Walter said that because the trailers are there, the lot is not vacant.
Special exception: The board voted unanimously, on a motion by Walter seconded by Ross, to deny the special exception for the proposed application to build a residence and attached garage and septic system in the Shoreland Conservation District based on the following findings of fact: The lot is not vacant, because it does not meet the requirements of section 8.33. A special exception cannot be granted because the project does not meet the requirements of section 4.63B5. There is a non-conforming structure on a non-conforming lot.
Variance: Margot said she thinks the proposal meets the requirements of 10.60 D and E because if the variance is not granted, the present owners will not be able to sell the property, and it will remain an eyesore. Jim said that the current owner did not apply for the variance, and that another person could buy it and use it for something else. George said that a 1250 sf home might conceivably be approved but that the proposed development is 2900 sf. Jim agreed that this is consistent with past decisions. Walter agreed. Ross pointed out that a smaller roof produces less runoff.
The board discussed and voted as follows on each of the criteria required for issuing a variance:
A. That the proposed use will not diminish surrounding property values. Four members agreed, and one abstained, that the project would not diminish surrounding property values.
B. That granting the variance will not be contrary to public interest. One agreed, three disagreed, and one abstained.
C. That the use will not be contrary to the spirit and intent of the ordinance. It was agreed that there is already a “structure” there which could be considered a residence, but that use would change, in moving from 250 sf to 2900 sf. Therefore, the “use” under judgment is the proposal for a 2900 sf structure. Four disagreed, and one abstained.
D. That by granting the variance, substantial justice will be done. It was agreed that this means justice to the proposed buyer. Four disagreed, and one abstained.
E. That denial of the variance would result in unnecessary hardship to the owner. It was agreed that the owner has access to the zoning ordinance, and that while there is a hardship, it is not unnecessary. Four disagreed, and one abstained.
The board voted unanimously, on a motion by Alan seconded by Ross, to deny the variance because the proposal does not meet all five findings necessary under section 10.60. Walter noted that a smaller house, should it be proposed, would not have to be located where the trailers currently sit, but that the septic system must be outside the Shoreland Conservation District.
Meeting adjourned 9:55 pm.
Respectfully submitted,
Adair Mulligan, Recorder
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