NOTTINGHAM ZONING BOARD OF ADJUSTMENT
APRIL 24, 2007
Approved 06/27/07
VOTING MEMBERS PRESENT: VOTING MEMBERS ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Jordan
Mr. Mike Russo Mr. Kevin Bassett, Alternate
Mr. John Morin
Mr. Jim Howard (arrived @ 7:25 PM)
OTHERS PRESENT:
Mr. John Riley
Atty. John Ahlgren
Ms. Deb Fernald Stevens
Mr. Joseph Welch
Mr. Terry Bonser
Ms. Mary Bonser
Mr. Glenn Jewell
Mr. Dana Hill
Mr. Athanasios Papadopoulos
Mr. Nick Papadopoulos
Mr. Michael Hadik
Atty. Peter Loughlin
Chair Leib called the meeting to order at 7:30 PM. He apologized for the delay and explained to those present that the Zoning Board is a five (5) member Board and a motion take a vote of 3 to pass. He stated that the Board was operating with four (4) members for this meeting and informed the applicants that they had the right to request a continuance until such time that they could appear before a full board of five (5) members. All applicants chose to proceed.
Case 07-03 Application from Glenn & Amy Jewell for a special exception to Article VI Section A2 requiring 50 foot setbacks to allow for a workshop to be built 20 feet from the property line. The lot in question is located at 50 Raymond Road, Nottingham, New Hampshire, identified as Tax Map 54 Lot 5-2.
Mr. Jewell addressed the board stating he wanted to build a carriage shed type workshop 20’ from the property line. He intends to use this workshop to build his house. He noted that the house on Lot 4, is to the south of the property and he wants to center his house on his lot so as to provide some distance and privacy for both property owners. He also noted that the north end of Lot 5-1 is unbuildable and the closest home to the shed would be approximately 400’.
Chair Leib invited abutters to step forward to see the plan. Ms. Stevens inquired as to the size of the shed. Mr. Jewell replied his plan is 24’X36’. Mr. Hill asked if the shed was going to be single story. Mr. Jewell replied that it will be 1½ stories. He stated he is a local contactor and the shed would be used to house his equipment. Mr. Welch inquired as to how the board could make a determination to grant the special exception without seeing the entire planned layout of the lot. He also asked why a special exception would be granted when there is 2.5 acres and the entire lot is buildable. Chair Leib explained that the Zoning Ordinance has two requirements to be met in order to qualify for this special exception. The two requirements are that the terrain,
configuration, and slope of the lot make it more appropriate than not to allow it and that granting such special exception would not adversely affect the neighboring parcels or rural character of the town. Mr. Welch inquired as to the style of the home. Mr. Jewell stated he is conscious of the neighborhood and that the home, as well as the workshop would be built to fit the character of Nottingham Square. Ms. Stevens stated that her house is 50’ from the stone wall boundary between the properties. Mr. Jewell stated he was not sure exactly where, front to back, along the boundary line he intended to place the workshop, but stated he would favor building it nearer the center of the lot than the front. Mr. Hill stated that in his experience with older homes, the barn is usually right next to the house or even attached by an el, and inquired why Mr. Jewell did not want it this way if his intent was to stick with the character of the neighborhood. Mr. Jewell replied that his house
is going to have an attached three (3) car garage and he did not want it to look like a compound. Ms. Stevens asked how far the garage will be from the workshop. Mr. Jewell responded it would be about 60’. Ms. Stevens stated she appreciates his effort to provide a privacy buffer. Mr. Hill asked if Mr. Jewell planned to remove any trees along the roadside. Mr. Jewell stated he would be planting trees, not taking them down. He stated he was not sure when he would begin building, he is content in his spot on Stage Road. Chair Leib informed Mr. Jewell that there is a one (1) year time limit on ZBA approvals. He added that if Mr. Jewell waited until the end of the year time limit to pull the building permit, with the permit also being valid for one (1) year he could get the two years he was requesting. Chair Leib also informed Mr. Jewell that he could return to the ZBA for an extension at the end of the year limit, if need be. Mr. Welch, Ms. Stevens, and Mr. Hill all stated
they had no objections to Mr. Jewell’s plan.
Mr. Howard stated he felt the set up of the lot Mr. Jewell was proposing, considering the abutting properties, works out better than if he were to build without the special exception.
Mr. Howard made a motion to approve the application from Glenn and Amy Jewell for a special exception to Article VI Section A 2 requiring 50’ setbacks to allow for a workshop to be built 20’ from the boundary line on a lot at 50 Raymond Road, Nottingham, NH, also identified as Tax Map 54 Lot 5-2, with the building permit to be pulled within one (1) year. Mr. Russo seconded the motion. Mr. Russo, Chair Leib, and Mr. Howard voted in favor of the motion. Mr. Morin voted against the motion. Motion passed 3-1.
Ms. Chauvey informed Mr. Jewell that he would receive a Notice of Decision in the mail. Chair Leib noted that this notice should be retained by Mr. Jewell for the building permit application.
Case 07-04 Application from Attorney John Ahlgren on behalf of Athanasios Papadopoulos for an appeal to an administrative decision by the Building Inspector to issue a building permit for Tax Map 24 Lot 95. The lot in question is located on Robinhood Lane and is owned by Terry Bonser.
Chair Leib again informed Attorney Ahlgren that the full board was not present and it is the applicant’s option as to whether to proceed or recess for a full board. Attorney Ahlgren elected to proceed.
Chair Leib informed those present of the Zoning Board’s powers regarding appeals according to RSA 674:33. He confirmed with Attorney Ahlgren that it was the applicant’s contention that the Building Inspector was somehow in violation of Town Ordinances by issuing a building permit to Mr. Bonser. Chair Leib stated that the Zoning Board does not have the power to research deeds in this appeal, reiterating that their duty is to determine if all the paperwork was in order when the Building Inspector issued the building permit and if the Building Inspector was in violation of Town Ordinances by issuing the permit. He stated he would redirect the meeting if testimony went into areas not under the Zoning Board’s powers.
Attorney Ahlgren took the floor stating he was representing Athanasios Papadopoulous in this appeal, however, was supported by many other residents of Nottingham Lake Shores. He confirmed with Chair Leib that the Board had received a letter from Mr. and Mrs. Burke and a series of petitions signed by 11 other lot owners opposing the issuance of the building permit. Attorney Ahlgren stated that all signatures are representative of the belief that this lot does not exist as a buildable lot, but instead as a private park for Nottingham Lake Shore owners. He noted that the owner of Lot 101, Mr. Hadik was in attendance, as was Nick Papadopoulos, the applicant’s son.
Attorney Ahlgren stated that the Zoning Ordinances require a buildable lot in order to obtain a building permit. He referred back to Chair Leib’s comment regarding the paperwork being in order, stating he did not believe the ZBA would approve a building permit for a lot that is not a buildable lot. Chair Leib stated that he was referencing the Zoning Ordinance definition of a buildable lot and the requirements for issuing a building permit, one of which is a valid deed.
Attorney Ahlgren had provided handouts, indicating one had been presented to Attorney Loughlin, and asked board members to turn to the first attachment, a copy of the original approved plat #498 from 1965. He indicated two lots across the lake from each other that were set aside as beach lots for the entire community on a plat of the entire subdivision and informed the board that he had blown up the copy of the lot in question.
Attorney Ahlgren stated their position was that this was not a lot. The rest of the subdivision was built out 40 years ago and these two lots were intended as common areas. Attorney Algren gave a history of the subdivision stating the roads were not accepted by the Town until much later, possibly sometime around 1980. He stated that at the time the Town accepted the road, all the residual property of the subdivision was owned by Mr. Settle, who then sold it to Mr. Bonser. Attorney Alhgren indicated it is unclear what the residual land sold to Mr. Bonser was, but it is clear it did not include the road, since it had been accepted by the Town. He stated that upon the town accepting the road, a legal limit line of ownership was created between the Town road and both the beach lot and the landing. He
reiterated that these areas were never intended or approved as building lots.
Attorney Ahlgren stated that Mr. Bonser, and Mr. Settle before him, have paid taxes on the land, noting assessment is not the responsibility of either the Planning or Zoning Board. He referred members of the board to copies of the deeds noting that the deed from Dixon to Settle was written as “…grant to John Alden Settle, Jr. as the Agent for and a Director of the New Hampshire Civil Rights Association,” and the deed from Settle to Bonser was conveyed by Settle personally, with no mention of the NHCRA. Attorney Ahlgren stated there is not adequate documentation at the Registry to demonstrate Mr. Bonser’s ownership. He felt, however, the bigger issue is the lot not being a buildable lot.
Attorney Ahlgren stated that the Burkes are abutters to one side and the Papadopoulos’ to the other, noting that the numbers on the lots are sequential until the ‘beach lot’. The numbers skip the ‘beach lot’ and continue with the Papadopoulos lot, reiterating that the lot was never intended as a building lot. Attorney Ahlgren noted that there is activity on this lot by the community throughout the year. He noted for the record that he did not understand why Mr. Bonser received a deed in 1986 and it was not recorded until 2004. He stated that Town documents refer to the lot as a ‘beach lot’ including the detailed property list and past tax liens against Settle.
Attorney Ahlgren stated that Mr. Bonser had been trying to sell the lot for the past year. He informed the board that Mr. Papadopoulos had considered purchasing the lot but could not get a good title to it. Attorney Ahlgren stated he had informed Mr. Bonser that he had been hired by a variety of people to take this to Superior Court.
In closing, Attorney Ahlgren submitted a copy of a proposed vote to Chair Leib and Attorney Loughlin.
Attorney Loughlin spoke in representation of Mr. Bonser. He stated their position is that Mr. Ahlgren has to prove that the Building Inspector made a mistake, they feel he did not. He stated the intent of the developer is unknown since nothing was put in writing. He informed the board that not one lot’s deed mentions rights to those areas. Attorney Loughlin referred members of the board to Attorney Ahlgren’s enlarged copy of the Contract of Purchase and Sale, noting that item #10 does reference paying an annual fee to enjoy certain privileges, however it also states that that is at the grantors absolute discretion. Attorney Loughlin’s packet to the board members included copies of tax cards, which state ‘No Water Access’. He stated there is a difference between the title issue
raised by Attorney Ahlgren and whether or not this lot is a buildable lot.
Attorney Loughlin stated his understanding of the issue with the sale of the property to Mr. Papadopoulos was not a title issue but an issue with a potential buyer. He noted that even if it was a title issue, Mr. Papadopoulos was willing to buy it as a buildable lot. Attorney Loughlin stated it is not the role of the ZBA to get into enforcing private covenants or title issues.
Mr. Russo inquired as to who is responsible for checking the deed and covenants. Attorney Loughlin stated that covenants are usually enforced by people who benefit from them, not the Building Inspector. Mr. Russo indicated he felt that that was what was taking place. Attorney Loughlin responded that this is not the correct venue for that debate. Attorney Ahlgren stated that their issue before the ZBA is that this is not a buildable lot. Attorney Loughlin stated the Building Inspector checks town records when issuing a building permit and the town has treated and taxed this lot as a buildable for many years. Chair Leib noted that on the original plat, the ‘beach lot’ was not separated from the road by a boundary. Mr. Bonser stated the roads were accepted in 1980 by petition at the Town
Meeting and the petition read, “…to accept only the tarred portion of the road.” Chair Leib clarified for Mr. Russo that his interpretation of the plat was that the ‘beach lot’ was not separate from the road. Attorney Loughlin stated the plan was revised in 1964, referencing Plan #03374 he stated the lot was shown as a separate lot.
Chair Leib asked Attorney Ahlgren if it was the applicant’s contention that the Building Inspector erred in issuing the building permit because the lot was not a buildable lot. Attorney Ahlgren responded that it was their contention the it was not a lot at all, noting that the lot did not have four (4) sides prior to the Town accepting the road.
Mr. Howard inquired as to the Building Inspector’s process for issuing a building permit. Chair Leib stated the application is going to reflect the map and lot number of the proposed building site, he then felt the Building Inspector would check the tax map and request a copy of the deed. Mr. Howard asked who has access to the land. Attorney Ahlgren responded that all the residents of Nottingham Shores access it. Mr. Howard asked if any of them pay a common area fee. Attorney Ahlgren replied that he did not have enough information to address that issue. Chair Leib noted that the covenants state the charge shall run until December 31, 1982. Attorney Ahlgren stated that date would govern the charges.
Mr. Bonser noted that this lot is a grandfathered non-conforming lot and he did not require a variance by the ZBA for setbacks. He stated that the lot was automatically made separate by the Town’s acceptance of the road. Chair Leib confirmed with Attorney Ahlgren that the first deed for this lot is after the acceptance of the road.
Chair Leib voiced concern that the ZBA did not have authority to go back in time to determine if things were done legally and properly in the origination and conveyance of a lot. Attorney Ahlgren again reiterated that basic zoning requires a lot for building and this area does not pass the test to qualify as a lot, stating the only plan available labels it a ‘beach lot’. He further stated it is unfortunate that Mr. Bonser is paying taxes on it, but that is a separate problem of Mr. Bonser’s. Attorney Loughlin stated the plan does not refer to it as a non lot, nor is there any documentation that it was intended as a community area. Mr. Howard stated he found it a difficult situation to have one owner who is paying taxes when all others are enjoying its uses and not contributing. Attorney Ahlgren
stated it was up to Mr. Bonser to point out to the Tax Assessor that it was a beach lot and not buildable. Mr. Morin inquired if the deeds to the other lots mention a right-of-way. Attorney Ahlgren responded that the covenants and restrictions include Plan #498, which addresses both the ‘beach lot’ and the landing. Attorney Loughlin, referencing the tax cards of surrounding properties, again noted that they all state, ‘No Water Access’. Mr. Russo felt the key indicator of intent is that the ‘beach lot’ is not included in the sequential numbering on the plat of the surrounding lots. Chair Leib felt it is not the duties of the ZBA to analyze the intent of the original developer. He stated the question before the board is whether or not Mr. Bonser met the requirements of the Zoning Ordinance and have legal title to that lot. Mr. Russo asked, again, who is responsible for this research. Chair Leib
stated the ZBA can only interpret the Building Inspector’s actions in terms of the Zoning Ordinance. He stated the question before the board is whether or not Tax Map 24 Lot 95 is a lot of record according to Zoning Ordinance Article VI Section A.
Chair Leib invited abutters to speak. Mr. Hadik informed the board that he lives at 32 Robinhood Drive and was told by the Realtor, who is also a resident of Nottingham Lake Shores, that the landing and the beach lot were common areas for those that did not have water frontage but was available to all residents. He stated it was a detriment to the neighborhood to loose the access they have used for all these years. Mr. Limberis stated that he has lived at 34 Robinhood Drive for 25 years and was also told the ‘beach lot’ and landing were common areas. He also stated he offered to purchase the property from Mr. Bonser but the offer was dropped when Mr. Bonser returned with a counter-offer.
Mr. Howard stated that he felt the Building Inspector acted in accordance with the Zoning Ordinances and that this issue was beyond the scope of the ZBA’s authority. Chair Leib agreed stating the ZBA does not have the authority to determine if a deed is valid.
Mr. Howard made a motion to deny the application from Attorney John Ahlgren on behalf of Athanasios Papadopoulos for an appeal to an administrative decision by the Building Inspector to issue a building permit to Mr. Terry Bonser, for Tax Map 24 Lot 95, on Robinhood Lane. This motion is made on the basis that the requirements of the Zoning Ordinance were met in relation to the lot being a lot of record and the existence of the deed. Chair Leib seconded the motion. By a vote of hands, the motion passed unanimously. Motion passed 4-0.
OLD BUSINESS:
Case 07-01 Application from John Riley for four (4) variances to Article VI Section 2 requiring 20 foot setbacks to allow for a garage to be built with the following setbacks: 12’11” setback from the North property line, 7’ setback from the South property line, 3’ setback from the East property line, and 4’ setback from the West property line. The lot in question is located at 34 Seaman Point Road, identified as Tax Map 68 Lot 92. The property is owned by John and Mark Riley. Note: The setback requests and design plans for this application have changed since the above notice was published.
Chair Leib acknowledged Mr. Riley and stated for the record that the public hearing for this case was closed on April 9, 2007. He informed Mr. Howard, who was not able to attend the site walk, that Mr. Riley had changed the plan by turning the roof gables sideways to the road and reducing the height.
Chair Leib asked Mr. Riley why he needed a second floor if the intent was to store boats and so forth. Mr. Riley stated he plans to install solar energy on the island and does not feel it would be feasible to store them on the cement floor in the garage during the winter. Mr. Riley clarified for Chair Leib that the second floor would be 8’ to the roof line, but the cross-beams would be at 6’6”. Chair Leib stated he still has a problem with the height. Mr. Russo asked Chair Leib if he had spoken with the Fire Department about the parking issue. Chair Leib stated that he had spoken with Lieutenant John Trumbull who indicated they were not interested.
Mr. Morin stated he is also concerned with the second story and whether it was necessary. He felt there was plenty of storage on the first floor. Referring to Mr. Riley’s comments regarding stolen property, he stated he had spoken with Chief English and who informed him there had been no reports of stolen property around the lake. Mr. Riley stated that the things that have been stolen (ladders, wheelbarrows, etc.) have not been reported. Mr. Howard stated the lot is small, however, he feels that whatever Mr. Riley does to the lot is an improvement. He felt that Mr. Riley should have the opportunity to utilize the space to the best of his ability.
Chair Leib informed those present that he had requested ZBA member Kevin Bassett to submit an opinion on the case in writing because the Bassett family was going to be away this week. He stated Mr. Bassett had sat at the meetings and attended the site walks for this case. Chair Leib read Mr. Bassett letter for the record, in which Mr. Bassett noted support for Mr. Riley’s garage and stated he would like to submit an absentee vote in favor of the application.
Mr. Russo made a motion to accept Mr. Bassett’s absentee ballot. Mr. Howard seconded the motion. All in favor. Motion passed 4-0.
Mr. Howard made a motion to accept the application of John Riley for four (4) variances to Article VI Section 2 requiring 20 foot setbacks to allow for a 19’W X 25’D saltbox style garage to be built with no less than the following setbacks: 13’ setback from the North property line, 12’ setback from the South property line, 5’ setback from the East property line, and 6’ setback from the West property line. The lot in question is located at 34 Seaman Point Road, identified as Tax Map 68 Lot 92. The property is owned by John and Mark Riley. The building permit is to be pulled within 6 months. This approval is granted with the following conditions:
The roof must be:
· parallel to the road
· no higher than 20’ on the North side (road side)
· no higher than 12’6” on the South side, and
· no higher than 16’6” on the East & West sides.
Mr. Russo seconded the motion. Mr. Howard, Mr. Russo, and Mr. Bassett (by absentee ballot) voted in favor of the motion. Mr. Morin and Chair Leib voted against the motion. Motion passed 3-2.
Mr. Riley left the meeting.
OTHER BUSINESS:
Mr. Russo made a motion to accept the minutes of April 9,2007, as written. Mr. Morin seconded the motion. Mr. Howard abstained from the vote. Mr. Russo, Mr. Morin, and Chair Leib voted in favor. Motion passed 3-0-1.
Mr. Morin made a motion to adjourn the meeting. Mr. Russo seconded the motion. All in favor. Motion passed 4-0.
Meeting adjourned 10:00 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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