NOTTINGHAM ZONING BOARD OF ADJUSTMENT
JUNE 12, 2007
NOT FINAL UNTIL APPROVED BY THE BOARD
VOTING MEMBERS PRESENT: VOTING MEMBERS ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Bassett, Alternate
Mr. Mike Russo
Mr. John Morin
Mr. Kevin Jordan
Mr. Jim Howard (arrived @ 7:25 PM)
OTHERS PRESENT:
Mr. Dave Townson, Applicant
Mrs. Lisa Townson, Applicant
Ms. Janet St. Laurent, Abutter
Mr. Chris York, Abutter
Mr. James McKenna, Applicant
Mr. Jeff St. Laurent, Abutter
Mr. Matt Huckins, Whicher Builders
Mr. Terry Bonser, Resident
Ms. Mary Bonser, Resident
Chair Leib called the meeting to order at 7:16 PM. He explained to those present that the Zoning Board is a five (5) member Board and a motion takes a vote of three (3) to pass.
Case 07-06 Application from David & Lisa Townson for a variance to Article VI Section F, limiting accessory apartments to 420 sq. ft., to allow for construction of a 599 sq. ft. in-law addition. The property in question is located at 159 Mitchell Road, identified as Tax Map 8 Lot 8-3B, and is owned by David & Lisa Townson.
Mr. Huckins handed out septic plans and explained that should the septic fail, this would be the replacement. Mr. Townson stated they want to add a 599 sq. ft. apartment for his parents who reside in the south for the winter.
Mr. Jordan asked if the proposed garage space was included in the size. Mr. Townson stated it was not. Chair Leib inquired about the foundation. Mr. Townson stated it would be a crawl space.
Chair Leib asked Mr. Townson to read for the record his responses to the area variance criteria:
1. The proposed use would not diminish surrounding property values because:
The “in-law” addition will increase the appraised value of the land and building tax base, therefore not diminishing the value of surrounding properties.
2. Granting the variance would not be contrary to the public interest because:
An ever-increasing aging population in this country calls for unique ways to accommodate aging family members. An “In-Law” addition such as this benefits the public in the interest of life-residence choices.
3. Denial of the variance would result in unnecessary hardship to the owner because:
a. The zoning restriction as applied to this property interferes with the reasonable use of the property, considering the unique setting of the property in its environment such that:
The stipulated 420 sq. ft. of living space is simply insufficient to accommodate the special needs of elderly people, especially when potential immobility is a consideration. Wider doorways, hallways, tub/shower space, bedroom space (e.g., for hospital beds), etc., are all factors which impact total living space and are life-safety issues.
b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because:
This is a case of expansion of use and variance for permitted square footage.
4. Granting the area variance would do substantial justice because:
Granting of this variance would permit construction of sufficient living space to meet the potential needs of two elderly people.
5. The use is not contrary to the spirit of the ordinance because:
The spirit of the ordinance is to encourage, when possible, the accommodation of elderly family members within the family residence. This request to increase the permitted square footage simply makes this possible and in no way deviates from the original spirit of the ordinance.
Mr. Jordan asked if the applicants intended to put in handicap accessible doors. Mr. Huckins stated the doors would be wheelchair width at 3’.
Mr. Howard made a motion to approve the application of David & Lisa Townson to construct a 599 sq. ft. in-law apartment, as depicted on plan project #07005, on property located at 159 Mitchell Road, identified as Tax Map 8 Lot 8-3. The applicant is to begin construction within six months. Mr. Jordan seconded the motion. All in favor. Motion granted 5-0.
Case 07-05 Application from James McKenna for two (2) variances to Article VI Section A.2., requiring 20’ setbacks, to allow for a garage to be built 12’ from the front (roadside) property line and 8’ from the side property line. The lot in question is located on Pine Street, identified as Tax Map 1 Lot 149, and is owned by James McKenna.
Mr. McKenna explained that he has a camp on the lake side of Pine Street that he wants to make his year-round residence. He stated he also owns a lot, approximately 50’ X 75’, across the other side of Pine Street on which he would like to build a garage. He noted the garage would be used for one vehicle, storage of items from their current residence, and a small workshop space. Proposed size is 18’ X 34’, with the roof height to be approximately 20’.
Chair Leib asked if Pine Street is a private street. Mr. McKenna stated it was not.
Ms. St. Laurent, Mr. McKenna’s abutter, stated she is concerned with the height of the building and the blockage of Pine Street, noting most times she travels Union Street, however, does on occasion use Pine Street to access her camp.
Chair Leib, Mr. Jordan, and Mr. Morin felt this application warranted a site walk.
Mr. Howard motioned to recess the hearing to a site walk on June 19, 2007 at Lot 149 on Pine Street. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
Approval of Minutes:
April 3, 2007:
Chair Leib noted a typo on Page 4, ‘hand’ should be ‘hang’. He felt ‘reasonable’ should be ‘reasonably’ and noted “…make decision…” should be “make a decision…” on Page 5. On Page 6, Chair Leib noted a zero in the word stated and the word ‘the’ should be ‘that’.
Mr. Howard made a motion to approve the minutes of the April 3, 2007 meeting, as amended. Mr. Morin seconded the motion. Mr. Jordan abstained. Motion passed 4-0, with one abstention.
April 24, 2007:
Chair Leib noted a typo on Page 4, ‘fee’ should be ‘feel’. He also stated that he had voted in Case #07-01, and had voted against the application.
Mr. Howard made a motion to approve the minutes of the April 24, 2007 meeting, as amended. Mr. Morin seconded the motion. Mr. Jordan abstained. Motion passed 4-0, with one abstention.
Outstanding Business
Motion for re-hearing on Case #07-04, Robinhood Drive, Tax Map 24 Lot 95: Mr. Jordan stated he had not seen any deeded covenants produced. Chair Leib stated the original plan was drawn up in 1965 and the deeds are very vague. He noted that plat that was drawn at the time, does not depict the ‘Beach Lot’ as separate from the road. Mr. Russo stated that one of the covenants does mention a fee structure that was set up for maintenance of the beach lot and the launch. Chair Leib stated the covenant that Mr. Russo mentioned also had a date of expiration and did not specifically refer to the ‘beach’ lot. He stated the property has been conveyed from Commander to Kelsey, from Kelsey to Dixon, from Dixon to Settle, then from Settle to Bonser, and each conveyance was for the rights to
whatever wasn’t sold. At some point the ‘beach’ lot was deeded as a separate lot and sold to Mr. Bonser. Mr. Jordan asked if Mr. Papadopoulos was the only person who had an issue. Chair Leib stated the file contained three pages of petitions, noting he felt it was probably most of the development.
Chair Leib stated the purpose of the Zoning Board is to decide zoning issues. He felt the Building Inspector had received the appropriate documentation from the applicant to issue the building permit.
Mr. Russo and Mr. Howard inquired as to whose responsibility it would be to do deed research. Chair Leib responded that he did not have an answer to that question. He stated the question before the board was to determine if this was a buildable lot at the time zoning came into effect. Mr. Jordan feels a deed research attorney needs to be involved. Chair Leib stated that the issue most likely will be resolved in a court higher than the Zoning Board, however, a re-hearing is the next step to get it to that point.
Ms. Chauvey asked for clarification on how to remove the Town of Nottingham from this dispute. Chair Leib stated that the only way to remove the Town is if the Zoning Board cannot determine if it was a buildable lot, they can choose to not make a finding either way and put a stay on the building permit until the residents get the issue worked out in court.
Chair Leib read portions of the response to the Motion for a Rehearing from Attorney Loughlin, for the record. Chair Leib stated he felt it was the duty of the Board to re-hear a case when both parties strongly believe they are ‘in the right’. At Mr. Jordan’s inquiry, Chair Leib stated the Building Inspector felt he had all pertinent documentation at the time of issuing the building permit. Mr. Jordan stated that if the restrictions and covenants are not referenced in the deed, he felt they should be. After perusal of the deed, Chair Leib stated that Mr. Bonser’s deed does refer to restrictions and covenants. Mr. Howard asked Chair Leib to read from the deed again. Chair Leib read, “Said premise subject to restrictions and covenants noted and recorded in Rockingham County
Registry of Deeds, Book 1730 Page 135, as they may or may not apply.” Chair Leib stated that if there was something in the covenants that specifically referred to the beach lot as being common area for the enjoyment of everyone, Attorney Ahlgren would have pointed that out. Mr. Jordan felt that this document should have been provided to the Building Inspector. Mr. Howard inquired as to the process for communicating with the Building Inspector. Chair Leib informed Mr. Howard that the Building Inspector is in the office until 7 PM on Tuesday nights. Mr. Morin stated he did not believe that the Zoning Board was provided with any documentation which reported that Lot 95 was intended for common area.
Mr. Morin stated he felt the Zoning Board had done their job correctly. Chair Leib, noting he did not feel the Board had done anything wrong, felt the Board should rehear the case. Mr. Howard questioned whether or not the Building Inspector was aware of the covenants and restrictions, stating that they were not provided when the application was submitted. Chair Leib stated he felt it was up to the applicant to provide them, not up to the Building Inspector to research each deed. Mr. Howard asked, again, whose responsibility it would be to research the deeds. Ms. Chauvey stated she would like to know the answer to this, not only to broaden her knowledge as an employee but as a resident. Mr. Howard stated the Building Inspector should not have issued a building permit without the covenants. He felt the
case should be reheard and that prior to rehearing it, the Zoning Board needed to know whose responsibility it is to research a deed which references covenants and restrictions when a building permit has been applied for. He feels this is pertinent to the case and to whether or not he feels their last ruling was correct. He feels that if the Building Inspector is responsible for the research then their last motion does not stand, but if he is not, then it does. Chair Leib stated the Zoning Board will follow up with Town officials and find an answer prior to the next meeting.
Mr. Howard made a motion to rehear Case #07-04, on June 26, 2007. Mr. Russo seconded the motion. Chair Leib, Mr. Jordan, Mr. Russo, and Mr. Howard voted in favor of the motion. Mr. Morin voted against the motion. Motion passed 4-1.
Mr. Morin made a motion to adjourn the meeting. Mr. Howard seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at 9:55 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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