Lyme Zoning Board of Adjustment
Minutes: September 15, 2005
Board members: Present - Alan Greatorex, Vice Chair; Walter Swift, Jim Poage, Ross McIntyre
Absent -George Hartmann, Chair
Alternate members: Present - Margot Maddock, Marcia Armstrong
Absent - Jackie Glass
Staff: Adair Mulligan, recorder
Public: John Taylor, Upper Valley Land Trust; Don and Nancy Dwight
Ross McIntyre recused himself because his daughter is director of the Upper Valley Land Trust. Vice Chairman Greatorex asked Marcia Armstrong and Margot Maddock to sit as regular members.
UpperValley Land Trust, Applicant, Permit Application 2005-089, M406L2
Project: build 3-4 car trailhead parking at 277 Orford Road.
John Taylor of the Upper Valley Land Trust proposes to construct a 3-car parking lot to access a hiking trail on the property of Ray Clark at 277 Orford Road (Map 406, Lot 2) in the Rural District. This requires a special exception under section 7.22 of the zoning ordinance to construct a parking lot within the road setback. This application does not require a site plan review or other ZBA approvals as it is for “Outdoor Recreational Activities” which is allowed by right under Table 4.1 of the zoning ordinance. John explained that the Clay Brook Trail is on this property, but there is no parking available, and there is a small parking area accommodated by the conservation easement, in the corner of the field. The design tries to minimize impact to ag soils. The state approval has been received
for the location, and pending ZBA approval, the state has approved siting the lot within 15 feet of the paved shoulder. DOT is requiring an island 8’ in from the fog line. John worked with Upper Valley Lake Sunapee Regional Planning Commission to identify the sizing for the parking area, and slots shown are larger than required in Lyme.
Marcia asked about surface. John said it would be gravel, hardpack or colored gravel to match the area. It will not be paved. Alan asked about sediment retention at the back end. John said the field is very flat there, and far from the brook. The state requires a drainage swale with a 10" drop to move the drainage to the flat area. The grading will not allow too many other cars to fit, but there would be room for four. Walter asked why limit parking to 3 cars. John said that it is to minimize the impact to ag soils. There will be logs to show intended parking places, but not signs to indicate them. Alan asked about logs around the edge. John said that they could be added if it is important. He asked if the board wanted screening of native shrubs around the lot. Alan
said he did not feel strongly about that, and Marcia agreed. Adair said that the Connecticut River Joint Commissions had awarded the Upper Valley Land Trust a grant of $3000 for this project because it is a trail enhancement on the Connecticut River Byway.
Deliberations: Jim moved to grant a special exception to build a 3 car parking lot for the Clay Brook Trail for recreation. A special exception is required under section 7.22 for offstreet parking, because it is not subject to site plan review. The plans specify a gravel parking lot, designed in conjunction with the state highway department district 2. The location is in the corner of an agricultural field, and is included in the conservation easement. Conditions are that the lot will be built as specified and with modifications specified by the state DOT. The location is in a field with little or no slope, and more than 150 feet to the brook. Walter seconded the motion and it passed unanimously.
Alan asked Margot to sit as a regular member.
Nancy and Don Dwight, Applicants, Permit Application 2005-084, M402L43
Project: build swimming pool at 92 Shoestrap Road.
Nancy & Don Dwight propose to build a swimming pool and equipment shed at their home at 92 Shoestrap Road (tax map 402, lot 43) in the Rural District. This requires a variance from section 5.1 to build within the side property setback. The case was continued from the previous hearing.
Deliberations: Walter said he was satisfied having reviewed the variance requirements that he has enough data to reach a decision. Voted to come out of deliberations.
Alan asked how far it is to bedrock in the area uphill of the house. Don said that the site is deep soil. Alan said that if blasting had been necessary, it would disturb the neighbors’ well. Jim asked about the well trouble. Don said that there had been runoff toward the spring, so a swale was built. He reminded that the pool could have been sited more easily on the lot elsewhere, but it would have threatened the neighbors’ spring. Walter asked if there were any changes to the application. Don said there were not. Nancy said she has a 3 acre lot, and the Estes had offered to do a lot line adjustment, but it would have been necessary to add 2 acres to make a conforming lot, and this would have displaced the Estes’ driveway. Don displayed the septic plan, which shows topography and location of the
pool.
Deliberations: Walter summarized material regarding variances. Section 10.60 defines the conditions to be met for granting the variance as follows:
A. That the proposed use will not diminish surrounding property values.
B. That granting the variance will not be contrary to the public interest.
C. That the use will not be contrary to the spirit and intent of the ordinance.
D. That by granting the variance substantial justice will be done.
E. That denial of the variance would result in unnecessary hardship to the owner.
He stated that based on material presented by the applicant and discussed at the August 18 hearing, the Board had agreed that the first four conditions had been met, but that there was question about the issue of hardship. Based on this uncertainty he reviewed the Land Use Law Update: Johnston and Frost, Municipal Law Lecture Series which summarizes criteria to be applied to the hardship requirement, depending on whether the variance is a Use or an Area Variance:
The NH Supreme Court determined that “A use variance allows an applicant to undertake a use which the zoning ordinance prohibits, ...” - for example, stabling horses in a district where keeping livestock is prohibited. An area variance, in contrast, “...authorizes deviations from restrictions which relate to a permitted use.” For example, those relating to setbacks, frontage requirements, ..., and lot size restrictions. (Boccia).
Guidance on the hardship criteria for an area variance is (from Johnston and Frost lecture):
“literal enforcement of the ordinance would result in unnecessary hardship, as established by the following:
1. special conditions of the property make an area variance necessary in order to allow the applicant to construct the development as designed; and
2. the applicant can not achieve the same benefit by some other reasonably feasible method that would not impose an undue financial burden”.
Based on this review he moved to grant a variance for construction of the pool and appurtenant structures based on the following findings and subject to conditions listed below.
Findings
Finding 1. The proposed swimming pool and appurtenant structure are a permitted use as an accessory structure under the Ordinance.
Finding 2. The appropriate criteria to apply to the application are those of an area variance.
Finding 3. The existing dwelling and lot are non-conforming by virtue of the footprint and the lot size. Expansion into the setback is not permitted by right or by special exception.
Finding 4. The proposed size (737 sq. ft.) and location of the project is entirely within a side setback.
Finding 5. Compliance with the Ordinance would require relocation of the proposed project, or lot line adjustment(s) adding an additional two acres to the lot size. The first solution is unreasonable because of narrowness of the lot, location of the septic system and residence, slope, driveway size and accessibility to the residence. The second solution would be expensive and would require relocation of an abutter’s driveway.
Finding 6. Abutters to either side support the size and location of the project, and grade modifications included in the development plan alleviates a problem with runoff to a neighbors spring.
Finding 7. The proposed project meets each of the conditions required by §10.60 of the ordinance.
Conditions: The pool and appurtenant structures shall be built substantially as shown in the drawing submitted with the application and shall not exceed 737 sq. ft. in coverage. Best building management practices shall be employed to limit disruption and control runoff and erosion during construction.
He noted that both abutters had supported the plan, and so the side setback issue is not a problem. Ross said it is the job of the board to define “unnecessary” and “substantial” and that in the Boccia decision the court has diminished the role of the board.
Margot seconded the motion and it passed unanimously.
Other Business
Minutes of the July 21 meeting were approved unanimously on a motion by Marcia, seconded by Walter.
Minutes of the August 18 meeting were approved unanimously on a motion by Walter, seconded by Ross.
Ross noted that Vickie had asked for suggestions for change to the zoning ordinance. He described a cooperative affordable housing arrangement that could be proposed in the future in Lyme, and asked how the current ordinance would handle it. Walter pointed to the definition of dwelling unit and thought that under the current ordinance, a single large unit with shared kitchen and other facilities could be approved, but a second large unit on the lot could not. It was the consensus of the board that the Planning Board should consider the issue and how it will affect the zoning ordinance.
Meeting adjourned 8:31 pm.
Respectfully submitted,
Adair Mulligan, Recorder
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