Zoning Board of Adjustment
November 6, 2006
Members Present: Thomas Vannatta (Chair), Betsy Soper (Vice Chair), Elizabeth Ashworth, Katheryn Holmes, Alex Azodi (Alternate).
Mr. Vannatta opened the meeting at 7:25 p.m.
Steven and Susan Russell, Chalk Pond Road. Appeal to Administrative Decision
Mr. Vannatta explained that this meeting is not a public hearing; and therefore, public comment will not be entertained. The Board has convened to review the content of an Application for Appeal From an Administrative Decision filed on October 16, 2006 by Steven and Suzanne Russell of 372 Chalk Pond Road to the Zoning Board of Adjustment’s September 25, 2006 decision to grant two variances to Caryl Bingham to permit construction of a new home that encroaches on the 30 ft. setback from a public right of way (5.9.1) and to permit construction of a new home that encroaches in the 75 ft. normal high water setback (7.3.2).
Mr. Vannatta stated that the Board has the right and authority to decide whether or not to hear the appeal based on the contents of the application for appeal since it is an appeal from a decision originally made by the Zoning Board of Adjustment. The Board is not required to grant this application for appeal if there is no new and substantial evidence.
The appellants claim that the Zoning Board’s decision was incorrect because the grade of the lot exceeds 25% as per the definition of steep slope, and the proposed construction activity is contrary to public interest since it will negatively impact Chalk Pond. Additionally, there is no unnecessary hardship to the property owners since it is not the current property owner that is planning to build on this property. Granting of these variances is not consistent with the spirit of the ordinance since it is not protecting the overall environment.
Ms. Holmes expressed concern that the Town is in violation of the Comprehensive Shoreline Protection Act by granting these variances. The Board needs to look carefully at this Act since we are in a partnership with the State. Ms. Holmes read from a letter sent to the Town by the Department of Environmental Strategies in 2004. She noted that there were no conditions made for State review of the proposal.
Mr. Vannatta reviewed the minutes of September 25, 2006 and did not find any significant discussion recorded regarding steep slopes.
Mr. Azodi asked if the CSPA requirements would apply to Chalk Pond since it is not large enough to be categorized as a Great Pond.
Ms. Holmes said it shouldn’t matter what size the body of water is, the principle is to protect the environment. Besides, Chalk Pond eventually empties into Lake Sunapee which is big enough to apply.
Ms. Soper commented that the Chalk Pond subdivision was approved in 1967, thereby making this a grandfathered lot. The Binghams purchased the lot and have been taxed on the lot ever since as a buildable lot. There is no other place to build on that lot than where the current proposal indicates. If neighboring residents object to the remaining lots being built upon, then they should address the issue with the Board of Selectmen.
Mr. Vannatta reiterated that the issue at hand is, Is this a steep slope and did the Board address that issue at the original hearing thoroughly to support its decision.
Mr. Azodi asked as a point of order, Is this new information and if it was presented at the original hearing, would the Board have decided differently? Also, how are the appellants affected?
Mr. Vannatta explained that the appellants are not abutters to the Bingham property. The regulation state that the applicant of an appeal must have standing in the circumstances.
Ms. Soper quoted from the RSA’s that the applicant of an appeal needs to be personally and adversely effected or needs to be an abutter. Also, most of the people who signed the petition that is enclosed with the appeal do not live near Chalk Pond.
Ms. Holmes explained that the appellants in this case are effected because they live on Chalk Pond and will be personally effected if the water quality of the Pond is negatively impacted.
Mr. Vannatta commented that although that may be true, that does not constitute standing in this case. Also, if the petitioners were truly concerned about this case, they would be at this meeting, and they are not.
Ms. Holmes commented that since there was no significant finding of a discussion about steep slopes in the September 25, 2006 minutes, then the Board obviously did not discuss it enough; and it should be addressed now.
Ms. Ashworth commented that all of the properties in this neighborhood have similar issues. Zoning Board members looked at the site prior to the hearing and were aware of the potential steep slope issues.
Mr. Vannatta commented that the Board cannot go backwards. Therefore, whatever is contained in the application must be compelling enough to entertain a rehearing as appealed. Articles 9.2 and 9.3 of the zoning ordinance has to be taken into account. The lot has been laid out, purchased and considered buildable. It is possible we missed looking at steep slopes. There is a home next door to this one that has the same situation. Steep slopes were not discussed or considered for variance approval. If we decide that the appellants are correct and decide to go on with an appeal hearing, the Binghams could still appeal for a variance to Articles 9.2 and 9.3.
Ms. Holmes commented that Article 16.3 – Appeal to the Zoning Board of Adjustment, does not state that the appellant has to be an abutter. The Board needs to look at the big picture.
Ms. Soper commented that the RSA’s state that the appellant has to be aggrieved or adversely affected.
Mr. Vannatta explained that there is a caviate in Article 16.3 that it is an appeal to one of our own decision. Therefore the Zoning Board decides whether or not to hear the case. The Zoning Board of Adjustment is never considered an ‘Administrative Office’ as referenced in Article 16.3.
Ms. Holmes asked if the Board thinks that it fairly considered the steep slope issue.
Mr. Azodi explained that all the Board is legally able to do is to determine if, in the appeal, there is enough new information to host a session to hear the appeal. He requested that he not be required to vote on this question since he was not at the original hearing.
Mr. Vannatta approved Mr. Azodi’s withdrawal from voting.
Ms. Soper made a motion to accept the application for hearing. Ms. Ashworth seconded the motion.
VOTE: Ms. Holmes voted to grant a hearing.
Ms. Soper voted to not grant a hearing.
Ms. Ashworth voted to not grant a hearing.
Mr. Vannatta voted to not grant a hearing.
Application was denied.
Robert Stewart, RCS Designs, submitted a response to the application for the record. The response was not reviewed at this time.
Richard and Donna Matte, Alsubet Cout
Mr. Vannatta informed the Board that a letter was received from Attorney Fuerst, representing Richard and Donna Matte claiming that the notification to the Mattes was not timely, and therefore the Board should reconsider the Matte’s appeal.
Mr. Azodi shared with the Zoning Board of Adjustment a recent case law ruling defending verbal notification.
Mr. Vannatta said he will respond to Mr. Fuerst to state that the Zoning Board of Adjustment believes that the notification was timely and will not reconsider the Matte’s appeal.
Ms. Soper made a motion that the Board dismiss the motion for future application for appeal on this case for the Mattes. Ms. Ashworth seconded the motion. All in favor. Motion passed.
Roger Hardy, South Road
Mr. Hardy would like the Zoning Board of Adjustment to grant a variance for a nonconforming building lot on an exiting piece of property that already supports a house so that he can then apply to the Planning Board to subdivide contiguous land into two additional conforming building lots. If granted, the net effect would be three building lots. Otherwise, he has only two building lots over an area of 23.5 acres because of wetlands. He will be in front of the Zoning Board Tuesday, November 28, 2006.
Ms. Soper made a motion to adjourn. Ms. Holmes seconded the motion. All in favor. Meeting adjourned at 8:21 p.m.
Respectfully submitted,
Linda Plunkett
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