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NOTTINGHAM ZONING BOARD OF ADJUSTMENT
DECEMBER 11, 2007
PUBLIC SESSION
NOT FINAL UNTIL APPROVED BY THE BOARD
PRESENT: ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Jordan
Mr. Jim Crowell, Alternate Mr. Jim Howard
Mr. John Morin
Mr. Mike Russo
Mr. Kevin Bassett, Alternate
OTHERS PRESENT:
Atty. Christopher Boldt, DT&C
Mr. Roscoe Blaisdell, Surveyor
Mr. Kelby Longueil
Mr. Bruce Mason
Chair Leib called the meeting to order at 7:00 PM. He explained to those present that the Zoning Board is a five (5) member board and a vote of three (3) is required for a motion to pass. He introduced the members, noting that two (2) regular members were absent this evening and that Alternate Members Crowell and Bassett would be sitting in for Members Howard and Jordan, respectively.
CASE 07-08 Application from Paul and Leslie Longueil for an Area Variance to Article VI Section A1 to allow access to three proposed building sites on Cooper Hill Road, which cannot be accessed from the frontage on Cooper Hill Road due to wetlands location. Two of the proposed accesses are off of North River Lake Road, a private road, with one being proposed in Nottingham and the other in Northwood. The third proposed access is through a shared driveway in Northwood. The lot in question is located on Cooper Hill Road, identified as Tax Map 16 Lot 15A, and owned by Paul and Leslie Longueil.
Chair Leib stated that this is a continued case. Addressing Attorney Boldt, he stated he believed that the applicant was going to adjust some driveway locations. Attorney Boldt responded that they had continued so that the members could go on site walks to see if changing the proposed driveway locations was what they wanted. He stated that the plan is to have the three (3) lots accessed as proposed; however, if upon seeing the property, the members felt that both proposed Lots 15A-1 &15A-2 should be accessed from the frontage of Lot 15A-2, the applicant would be amenable to that. He further stated that the applicant wanted that condition to come from the ZBA as a condition of approval.
Mr. Morin, stating he had driven out there and was looking for clarification of where the proposed accesses on North River Lake Road are, asked if they were somewhere around the abandoned vehicles. Attorney Boldt stated that he did not know the particulars, but that Mr. Longueil was on his way. He further stated that one entry way is at the culvert right before where the Daskey property starts and the other is currently chained. Mr. Kelby Longueil arrived at this time. Mr. Longueil, noting that the abandoned vehicles are not on their property, stated it is quite a bit beyond that, adding that the access is right after the field that is maintained by Mr. Fanjoy. Mr. Longueil further explained that there are two “swales/divots” in the road that look treacherous when it rains and that the frontage on
North River Lake Road is right after those divots. Mr. Bassett asked Mr. Longueil to point out the divots on the plat. All gathered around the plat while Mr. Longueil pointed out the divots and two proposed North River Lake Road accesses while giving a description of the surrounding area.
Mr. Mason, who resides at 28 North River Lake Road, stated that there is no, nor has there ever been, road maintenance beyond Mr. Fanjoy’s residence. He added that Mr. Fanjoy is the only one in Northwood and he believes it has been a “gentlemen’s agreement” between Nottingham and Northwood that Nottingham plows down to Mr. Fanjoy’s place. Mr. Bassett asked Mr. Mason if he was saying that there is no through way at times. Mr. Mason stated he was, adding that it is impassable in the spring also because it becomes a mud hole. He further stated that he spends much time pulling kids out with his 4-wheel drive. With Chair Leib’s permission, Attorney Boldt, noting that that part of the road is a private road on the Northwood side, asked Mr. Mason if he was saying that there is no
town maintenance. Mr. Mason stated he was. Chair Leib asked which lot was Mr. Fanjoy’s. Attorney Boldt stated it was indicated on the plat. Mr. Bassett asked where Mr. Mason lives. Mr. Mason stated he is the last house on the left in Nottingham coming in from Cooper Hill Road. Attorney Boldt noted that Mr. Mason is an abutter to the Daskey property, not the Longueil property. Attorney Boldt presented a small map depicting all surrounding property. Ms. Chauvey asked permission to make a copy. All gathered around to see where Mr. Mason’s property was located.
Mr. Bassett asked if there were any previous conditions limiting the use of the property. Chair Leib stated there are no stipulations on the plan from when the lot line adjustment was approved.
In summary, Attorney Boldt referred again to the Malachy Glen case, stating that he believes it dovetails with this case to reach what he hoped would be a favorable approval with or without the condition that the accesses to proposed Lots 15A-1 & 15A-2 be shared through the frontage of 15A-2. He further stated that the Malachy Glen case makes it clear that the ‘spirit of the ordinance’ and ‘contrary to public interest’ areas of the five criteria are related, noting that the board previously had a hard time with the issue of the spirit of the ordinance but felt that the project was not contrary to public interest. He stated that these two areas must be considered together, adding that the issue here is whether the project, as proposed, “unduly and to a marked degree” conflicts
with the statements of purpose for the zoning objectives as stated in the Ordinance. Attorney Boldt reminded members that in the Malachy Glen case the members voting against it stated that it was not in the spirit of the ordinance because it did not meet the ordinance. He further stated that the Court determined that the reason for the variance cannot be the reason to deny the variance. He added that to answer whether the variance “unduly and to a marked degree” conflicts, the ZBA needs to look at two things. The first is whether the project alters the nature and character of the locality. Attorney Boldt stated they want residential use in a residential area, noting that these proposed lots are even much larger than some lots already there. Secondly, he stated that the board needed to determine if granting of the variance would threaten public safety or welfare, noting that Mr. Blaisdell had given uncontroverted evidence that
there would be no injury to the wetlands by placing the accesses where they are being proposed. Referring to the board’s concern over fire department confusion, Attorney Boldt stated that that is a concern in any large lot subdivision whether access is immediately apparent off of a major road or on a side street. He added that this is a concern for the Fire Chief, not the Zoning Board. As for hardship, Attorney Boldt stated that he has provided the board with uncontroverted evidence that the variance is necessary to enable the proposed plan and that there is no reasonably feasible alternative. He added that this is a unique piece of property with its developable land in the back and the frontage being comprised almost entirely of wetlands. He again reminded members that the Malachy Glen case also determined that the Board must look at the development as proposed, not as they may like to see it built. He added that the applicant is
willing to give the Zoning Board some flexibility in looking at this plat in that they are willing to abide with a condition of the shared driveway through proposed Lot 15A-2. Another point he made referring to the Malachy Glen case was that, in that case, 65% of the land was either wetlands or within the wetland buffer and the Court said that with that configuration, special conditions exist such that the variance is required to enable the development. He further stated that it was deemed a matter of law that special conditions exist and he posed to the Board that the same special conditions exist in this case. He stated that the Court also chided the Chichester ZBA for believing that a reasonably feasible alternative was for the developer to reduce what was being proposed by 50%, adding that the Court expressly held that that is, as a matter of law, a definition of there being no reasonably feasible alternative method. Attorney Boldt stated that if
the Board was to say they would approve the application if the applicant was to reduce the project by one lot that that would meet the Malachy Glen opinion of that which the ZBA is not allowed to do. He reiterated that there will be no diminution of value to surrounding property and reminded the members that the Longueils own most of the surrounding property on the Northwood side. Referring to the substantial justice criteria, he stated that the Court makes it clear that the Board is to examine whether any loss suffered by the applicant because of a denial is offset by some gain or benefit to the public, noting that if there is no offset, then it is, by definition, an injustice. He stated that there is no public benefit to the denial of this application. In closing, Attorney Boldt stated that he believes they have proven that they meet the five criteria of an area variance.
Chair Leib, clarifying the request with Attorney Boldt, stated that the proposal is for one access to come through the Longueil’s personal driveway to proposed Lot 15A, the second proposed access is to come through the North River Lake Road frontage in Nottingham to proposed Lot 15A-2, which is technically a valid access and does require a variance, and the third proposed access is through an easement granted from the Longueils off of North River Lake Road in Northwood. Attorney Boldt stated that that is the proposal, however, the applicant is willing to concede to a shared driveway through proposed Lot 15A-2 for a conditional approval. Ms. Chauvey asked for clarification as to why proposed Lot 15A-2 does not require a variance. Attorney Boldt stated that proposed Lot 15A-2 does not require a variance because its
driveway is out of its frontage on Cooper Hill Road and, it just so happens, that part of that driveway is the existing emergency lane called North River Lake Road. Mr. Morin asked if the access to proposed Lot 15A-1 was going to be a legal right-of-way. Attorney Boldt stated that it would be and that the future owner of proposed Lot 15A-1 would not own that property on which the access will be granted. Chair Leib, speaking to Attorney Boldt, asked if there is a difference between a private road and a private right-of-way. Attorney Boldt responded that it is a distinction without a difference, adding that if a town is not going to take over a road, it remains a private road even though the residents have a right to use the road.
Chair Leib asked members if they had any more questions or comments. There was no response. Chair Leib stated that he still has a problem seeing how the application meets the spirit of the ordinance when looking at the 1,000 foot easement for proposed Lot 15A-1. He added that he believes this request goes way beyond the spirit and intent of the ordinance. Attorney Boldt stated that there is no evidence to support Chair Leib’s stance. He added that that particular ordinance does not have a purpose and he had already addressed the three (3) general purposes of the ordinance that he felt were possibly pertinent to the case. He stated that by granting the variances they would be preserving the rural character of the land by minimizing wetland crossings, allowing the development of good land, and using
existing access points. Chair Leib stated that he does not believe each ordinance should have a statement of purpose. Attorney Boldt stated all key provisions should have one. He added that this particular ordinance is an arbitrary restriction that is incidental to the allowed use of the property, noting that the use is allowed for residential. He stated that they have the area for required size, they have the required uplands, and meet all setbacks. H reiterated that they have everything required with the exception of being able to access two of the lots from the frontage. Chair Leib stated that there is still a problem with crossing one lot to get to another. Attorney Boldt stated that in the Longueils case, they were crossing themselves. Mr. Crowell stated that that would only be true for as long as they owned the all of the property. Attorney Boldt stated that whoever buys the property at some time in the future will buy it
knowing that there are legally granted right-of-ways. Mr. Russo stated that he felt the Longueils had a reasonably feasible alternative in that they have the ability to build a road in from the Northwood side, which would provide safer and cleaner access to the developable land. Attorney Boldt stated that because of cost that is not a reasonably feasible alternative, especially for one lot. Mr. Russo stated that the road should serve all three lots. Attorney Boldt reminded Mr. Russo that he needs to look at the plan as presented. Mr. Russo stated that he is supposed to determine that there is no other reasonably feasible alternative. Attorney Boldt stated that by definition of Malachy Glen the Board is not allowed to look at other alternatives. Mr. Russo asked if the applicant has considered building a road. Attorney Boldt replied that he is of the understanding that much of the back area cannot be developed because it is wet. Mr. Bassett, referring to Northwood
ordinances, stated that Northwood requires 150’ of frontage. He stated he will not vote in the affirmative for the access to proposed Lot 15A-1 because it is only 50’ wide. He further stated that he has concern over the abutter who stated that he did not believe the Northwood Building Inspector/Code Enforcement Officer had the authority to write the letter that was submitted by Mr. Longueil. Attorney Boldt, stating he wanted to be clear on the issue, reminded Mr. Bassett that the Board had copies of minutes from a Northwood Planning Board meeting that Mr. Longueil had attended to discuss his plan, a letter from the Dave Hickey, Northwood Building Inspector/Code Enforcement Officer which stated that he had reviewed the both Northwood driveways and that the shared driveway with the Longueil’s personal residence would need no further action and the driveway on North River Lake Road would require a liability waiver because of its “private road” status. Attorney Boldt informed Mr.
Bassett that to have an abutter say “they have spoken to someone else,” is here say and not admissible. He cautioned Mr. Bassett, and noted for the record that notices had been sent to three bodies of authority in Northwood and no one had shown up for the meetings or sent any comments in for the record. Mr. Russo stated that Northwood would not have to supply the tax base for support of this property when it is developed. Attorney Boldt informed Mr. Russo that the property would be taken out of current use to develop and that would add tax value but noted that that is not in the criteria for an area variance. Mr. Bassett stated that the length of the easements and shared driveways are a concern to him, also. Mr. Bassett informed Attorney Boldt that he would have found it more helpful if Attorney Boldt had had a residential case he could refer to instead of the Malachy Glen case, which was commercial. Chair Leib concurred
with Mr. Bassett stating that they cases are sort of the same, but a lot different. Attorney Boldt stated they are more the same than they are different since they are both area variance cases. Attorney Boldt stated that Malachy Glen restates what was determined in the Vigeant case, a multi-family residential case in Warner, and that is that the Board must look at the plan as proposed and if the plan is an allowed use in the area, it is presumed reasonable and the desire of the ZBA for an alternate use is not material. He added that this is incredibly strong language. Mr. Morin asked Attorney Boldt for his interpretation of RSA 674:41 III. Attorney Boldt read the section for the record. Attorney Boldt stated that this provision expressly allows what the applicant is trying to do in this case. He further stated that you can have a private right-of-way off of a private right-of-way so long as it meets the criteria for the private
right-of-way (d) section. Chair Leib informed Attorney Boldt that the Nottingham Board of Selectmen will not issue building permits for this subdivision. Attorney Boldt stated that he was aware that the Selectmen have a policy that places that responsibility with the ZBA. He questioned how an appeal would take place in this type of a situation. He stated that it is common practice for the building permits on private roads to come from the Board of Selectmen and then should an appeal be filed, it would go to the ZBA.
Chair Leib asked if there were any more questions or comments. There was no response. Chair Leib stated he would entertain a motion.
Mr. Bassett made a motion to deny the application of Paul and Leslie Longueil, Trustees, on behalf of Paul and Leslie Longueil Revocable Trust of 1996, Case #07-08, for an area variance to Article VI Section A. 1, requiring a curb cut in the required minimum frontage, to allow access to two proposed building sites on Cooper Hill Road, which cannot be accessed from their frontage on Cooper Hill Road due to wetlands location as show on Plat #1124. One proposed access is off of North River Lake Road in Northwood, a private road, and the other proposed access is through a shared driveway with the applicant’s personal residence in Northwood. The lot in question is located on Cooper Hill Road, identified as Tax Map 16 Lot 15A, and owned by Paul and Leslie Longueil Revocable Trust of 1996. Mr. Bassett stated the reasons
for his motion include a strong concern regarding the comments of the Northwood abutter, lack of action from the Town of Northwood, and belief that the easement for proposed Lot 15A-1 does not meet the spirit and intent of the Northwood ordinances.
Chair Leib stated that the board cannot be concerned about Northwood. Attorney Boldt asked if Mr. Bassett was going to include the alternate proposal in his motion. Members agreed that they wanted a clean denial of the application. Chair Leib, at Mr. Russo’s inquiry, stated that the applicant would be able to apply for a building permit for proposed Lot 15A-2 if the application for an area variance was denied tonight, but noted that the applicant is looking to create 2 new lots. Mr. Morin stated he felt the members should put their reasons on their fact finding sheet. Mr. Crowell asked if the motion needed to include all the other statements or could it just be a motion to deny. Ms. Chauvey stated she did not know if the motion needed to contain reasons, however, she was required to supply the
applicant with reasons in the Notice of Determination that gets sent out. Chair Leib stated that he did not believe the motion should contain all the details. He asked Mr. Bassett if he wished to amend his motion.
Mr. Bassett made a motion to deny the application of Paul and Leslie Longueil, Trustees, on behalf of Paul and Leslie Longueil Revocable Trust of 1996, Case #07-08, Cooper Hill Road, Tax Map 16 Lot 15A, for an area variance to Article VI Section A. 1, requiring a curb cut in the required minimum frontage, to allow access to two proposed building sites on Cooper Hill Road, via easements through private property in Northwood because of the curb cut requirement not being met thus not satisfying the variance requirement of not being contrary to the spirit and intent of the ordinance. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
Attorney Boldt, disagreeing with the motion, repeated it for clarification and confirmation. He then asked if the board was going to make a second motion on the alternative driveway. Chair Leib stated he did not think the board could approve that on this application. Attorney Boldt disagreed, stating that the alternative had been discussed at a minimum of two prior meeting. He noted for the record that when he questioned Mr. Bassett on whether his motion was going to include the alternative driveway option, the board had given the impression that they were going to deny the proposal cleanly and then return to the alternate plan that had been discussed. Mr. Russo stated that he had heard Attorney Boldt repeatedly and forcefully state that the Board must look at the application as received. Attorney Boldt
concurred, saying that he had also stated that the applicant was giving the board flexibility with the alternative that has been discussed. Attorney Boldt stated that there was no doubt in his mind that the board had the ability to approve the alternate plan tonight. Mr. Morin stated that a new, clean application should be filed. Attorney Boldt informed Mr. Morin that a case that has been noticed can end with approval of less than what was asked for in the application but can never end with approval of more than what was asked for without a new application and notice. Mr. Morin stated he is against the shared driveway on North River Lake Road. Mr. Bassett asked Attorney Boldt if his interpretation of ‘less’ was two accesses instead of three. Attorney Boldt said yes. Mr. Blaisdell stated that the applicant has been thinking all along that if one proposal did not get approved then they would go forward with the alternative and Mr.
Blaisdell believes that the Board gave no indication that they could not do that. Mr. Morin said if Mr. Bassett wished to make a motion, then he should do that so that everyone could be clear. Chair Leib acknowledged that the alternative shared driveway was discussed, but said he did not remember how far the discussion went in that direction. He further stated that he agreed with Attorney Boldt that the alternative proposal fell within the confines of the original application.
Chair Leib, clarifying for all, stated that the applicant is now proposing an area variance for two proposed accesses in a proposed three-lot subdivision. One access being proposed is an easement for a shared driveway with the Longueil’s personal residence in Northwood and the other an easement for a shared driveway, which crosses proposed Lot 15A-2 to access proposed Lot 15A-1. Chair Leib stated he would entertain a motion.
Mr. Morin made a motion to deny the alternative proposal of Paul and Leslie Longueil, Trustees, for an area variance to Article VI Section A. 1, requiring a curb-cut within the required minimum frontage, to allow for access for proposed Lot 15A through an easement for a shared driveway with the Longueil’s estate in Northwood and the other an easement for a shared driveway, which crosses proposed Lot 15A-2 to access proposed Lot 15A-1 because it does not meet the spirit of the ordinance in regards to the curb-cut. Mr. Russo seconded the motion. All in favor. Motion passed 5-0.
Attorney Boldt asked if the hearing was closed. Chair Leib replied that it was. Attorney Boldt asked Ms. Chauvey for copies of the Finding of Fact sheets that were being completed by the members. Attorney Boldt informed members that the forms should have been completed while they were going through the process and prior to taking their vote. Upon completion, Ms. Chauvey made copies and presented them to Attorney Boldt.
The applicants’ representatives left the meeting at this time.
MINUTES
November 13, 2008:
Mr. Bassett noted a typo on Page 4 in the paragraph beginning, “Chair Leib stated he agrees…,” fourth line down, sentence should read, “Mr. Bassett asked if they had tried to design any….” Also on Page 4, last paragraph, fifth line down; the word ‘they’ should have been ‘the’.
Chair Leib noted several typos beginning on Page 2, paragraph beginning, “Attorney Boldt stated that the…,” third line down, the word ‘to’ needs to be omitted; Page 3, Item 3a response, fourth line down, “…do no suffer…,” should be, “…do not suffer…,”; Page 3, Item 4 response, second line down, “…that he variance…,” should be, “…that the variance…,”; Page 5, paragraph beginning, “Attorney Boldt asked for the next meeting date.”, first line, “…all membes…,” should be, -…all members…,”; Page 5, Case 07-09 heading, second line down, “… Raymond Road rather thatn…,” should be, “…Raymond Road rather than…,”; Page 6,
paragraph beginning, “Chair Leib stated he had the same…,” twelfth line down, “…Fernalds answer want…,” should be, “…Fernalds answer and want…,”; and, lastly, Page 8, last sentence in the first paragraph, “…any more of the Board time…,” should be, “…any more of the Board’s time….”
Mr. Crowell made a motion to approve the minutes of the November 13, 2008 meeting, as corrected. Mr. Russo seconded the motion. Mr. Morin abstained. Motion passed 4-0-1.
OTHER BUSINESS:
Mr. Bassett made a motion to adjourn the meeting. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at 9:05 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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