Skip Navigation
This table is used for column layout.
 
Zoning Board of Adjustment Minutes 11/13/2007
NOTTINGHAM ZONING BOARD OF ADJUSTMENT
NOVEMBER 13, 2007
PUBLIC SESSION
Approved 12/11/07

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. Paul Longueil
Ms. Leslie Longueil
Mr. Steve White
Ms. Grace LaPointe
Mr. Skip Seaverns
Ms. Jeanette Daskey
Mr. Rick Wolf


Chair Leib called the meeting to order at 7:05 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.  He also informed those present that Ms. Chauvey is the recording secretary and, as such, would be recording the meeting to assist with transcription of the minutes.


APPROVAL OF MINUTES

September 11, 2007

Chair Leib noted an error on Page 4 in the first sentence; “…issuance of the building code …” should be “…issuance of the building permit ….”

Mr. Bassett made a motion to approve the minutes of the September 11, 2007 meeting with the above noted correction.  Mr. Russo seconded the motion.  Chair Leib, Mr. Morin, Mr. Russo, and Mr. Basset voted in favor of the motion.  Mr. Crowell abstained.  Motion passed 4-0-1.

September 18, 2007

Chair Leib noted an error on Page 2 in the 12th line down; “… a representative if the party…” should be “…a representative of the party….”  

Mr. Bassett made a motion to approve the minutes of the September 18, 2007 meeting with the above noted correction.  Mr. Russo seconded the motion.  Chair Leib, Mr. Morin, Mr. Russo, and Mr. Basset voted in favor of the motion.  Mr. Crowell abstained.  Motion passed 4-0-1.


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 opened the hearing at 7:15 PM.
Attorney Boldt spoke on behalf of the Longueils, introducing himself and Mr. Blaisdell.  He handed out a small packet to board members which included a copy of the plat, a synopsis of the variances requested and responses to the five criteria required for an area variance, a copy of a letter from the Nottingham Conservation Commission, a copy of a letter from the Northwood Building Inspector/Code Enforcement Officer, and a copy of draft minutes from a September 27, 2007 Northwood Planning Board meeting at which Mr. Longueil presented his plan to Northwood.

Attorney Boldt stated that the Longueil’s own a 26.73 acre parcel of land in Nottingham which has approximately 800’ of frontage on Cooper Hill Road.  He added that the Longueil’s want to subdivide the parcel into three (3) residential lots; however, the 800’ of frontage is adjacent to wetlands.  Attorney Boldt stated that Mr. Blaisdell would speak to the Board regarding the extent of the wetlands and what DES would or would not allow which would substantiate the need for this variance.  He stated that they were seeking a variance from the requirement for each lot to contain a curb-cut within its frontage.  He added that the parcel also abuts a “private/public” road, North River Lake Road, noting that he refers to it this way because although it is not listed as a public way on Town records, it is graded and maintained by the Town of Nottingham.  He stated that the Longueils propose to access two of the proposed lots from this “private/public” road; one in Nottingham and one further up the road in Northwood.  Attorney Boldt asked Mr. Blaisdell to speak at this time.

Mr. Blaisdell informed the board that the crossing on the first proposed lot would be approximately 300’ and contains a running river with fish.  He further stated that DES would require a bridge crossing for this type of wetlands.  He reported that the crossings for the second and third proposed lots are approximately 900’, containing very poorly drained soils and a 15’ wide stream.  He added that there are two minor wetland areas also on the North River Lake boundary but felt it would not pose a problem to get an approved crossing for that side of the property.  He noted that all three proposed lots have large buildable areas, however, access from Cooper Hill Road is a problem.  Chair Leib asked Mr. Blaisdell to point out the course of each proposed access.  Mr. Blaisdell explained that Mr. Longueil owns the abutting property in Northwood, which is not shown on this plat.  He further explained that the two proposed Northwood accesses would be through easements across this Northwood property; one through a shared driveway with the Longueils’ personal residence and one off of North River Lake Road.  Mr. Crowell asked for clarification of the lots shown on the plat.  Mr. Blaisdell responded that the triangular shaped lot depicted on the plat, labeled Tax Map 16 Lot 15, was an existing lot that had been subdivided approximately five (5) or six (6) years ago, adding that the remaining property is the lot in question and they were attempting to turn the one (1) lot into three (3).  At Chair Leib’s inquiry, Mr. Blaisdell, again, attempted to explain the two (2) proposed driveways on North River Lake Road.  Chair Leib asked if Lot 15A abuts North River Lake Road where the driveway was being proposed for proposed Lot 15A-1.  Mr. Longueil responded that his other property in Northwood is between the road and the proposed lot, adding that proposed Lot 15A-1 is approximately 1,000’ from North River Lake Road.  He stated that there is already an agricultural road on his Northwood property and he would grant a deeded easement for the driveway for this proposed lot.  Mr. Longueil stated that he would provide the board with copies of a letter from the Northwood Building Inspector/Code Enforcement Officer and minutes from a Northwood Planning Board meeting he attended, which would verify that the Town of Northwood does not have a problem with the two (2) proposed Northwood accesses to the proposed Nottingham lots (Lot 15A and Lot 15A-2).

Chair Leib stated that North River Lake Road would need to meet the requirements of NH RSA 674:41.  Attorney Boldt stated that that would be in relation to the building permit and acknowledged that the applicants were aware that they would have to appear before three (3) Town Boards before this project was complete.  He stated the first step is for the applicant to appear before the Zoning Board of Adjustment for variance to access the lots by some means other than the frontage; secondly, they would appear before the Planning Board for subdivision approval; lastly, they would appear before the Board of Selectmen for approval of the building permits.  He stated that there have recently been at least three (3) building permits granted for North River Lake Road by Nottingham, adding that one has frontage on Cooper Hill but is accessed from North River Lake Road.  Attorney Boldt then indicated on the plat two (2) more areas on North River Lake Road that had been issued building permits by Nottingham and stated that there has been an abundance of permits issued for this road by the Town of Northwood.  

Mr. Russo asked who owned the abutting properties in Northwood.  Attorney Boldt responded that the Longueils own all properties that would contain the driveway crossings.  Mr. Longueil stated that the proposed lots all have acreage, frontage on a Town road, and a good building site, noting that the only thing they do not have is access from the Town road to the building sites.  He stated that he would also provide the Board with a copy of a letter from the Nottingham Conservation Commission stating they felt the wetlands needed to be circumvented.

Ms. Chauvey retrieved the tax maps at Chair Leib’s request.  Members of the board viewed Lot 15A (on Tax Map 16) and surrounding properties on Nottingham Tax Maps 1 & 16.

Chair Leib asked Mr. Longueil what, in this request, is different from the request made in 2002.  Mr. Blaisdell stated that the shape of the proposed lots is slightly different.  Attorney Boldt stated that the standards are different.

Chair Leib asked for a history of the lot, noting that a lot line adjustment was done in 2001 which provided Lot 15A with frontage on Cooper Hill Road.  Mr. Blaisdell reported that Mr. Longueil had owned two (2) lots, Lots 15 and 15A.  He stated that Lot 15 had been an odd shaped lot with a 50’ wide strip that encompassed the frontage on Cooper Hill Road adding that the Longueils came before the Planning Board for a lot line adjustment to create better shaped lots.  Chair Leib asked if there was a house on Lot 15.  Attorney Boldt responded that there is one now.  

At Mr. Crowell’s inquiry, Mr. Blaisdell reported that the road frontage for the proposed lots was 300’, 260’, and 250’.

Chair Leib read from the minutes of the August 6, 2002 meeting at which Mr. Longueil had presented a plan very similar to this.  He stated that the board had denied the application at that time because they felt it was contrary to the spirit of the ordinance.  He asked the applicants if they wished to address that issue.  Referring to the Boccia case in 2005, Attorney Boldt stated that first and foremost the laws have significantly changed since the board heard the case in 2002, adding that Boccia created the distinction between an area variance and a use variance.  He stated that the applicant must meet five (5) criteria to be approved for an area variance and proceed to address the criteria.

1.      The value of surrounding properties would not be diminished.

Attorney Boldt stated that there are residential units all along North River Lake Road and that the applicant was proposing single family residential units, adding that there is no change in use.  He further stated that the applicants personal residence abuts this lot and that they did not feel it diminished their value.

2.      The variance will not be contrary to the public interest.

Referring to the Chester Rod and Gun Club case, Attorney Boldt stated that the variance must “unduly and in a marked degree” conflict with the ordinance to be contrary to the public interest.  He stated that there is no expressed purpose tied to having the driveways in the frontage, noting that it is not broken out separately in Nottingham’s ordinances.  He further stated that the general purposes for the Zoning Ordinance as a whole are set forth in Article I Section B and felt that only subsections 1, 2, and 5 could potentially be relevant.  Addressing these subsections he stated that the proposed driveways help to preserve the rural character because they are not along Cooper Hill Road but instead on less traveled ways.  He stated that natural resources are enhanced and that there would be no deleterious effect on surrounding properties by not having large wetlands crossings.  Referring again to the Chester case, he stated that the board is instructed to analyze whether granting the variance would alter the essential character of the neighborhood or create a threat to the public health, safety, or welfare.  He stated there is no alteration to the essential character as they are proposing single-family lots abutting other single-family lots.  He added that there is no threat to health, safety, and welfare by the granting of this variance and that he believed granting of it would enhance these things.  

3.      The denial of the variance would result in unnecessary hardship because:

a.      Special conditions make an area variance necessary in order to allow the development as designed because:

Attorney Boldt stated that this is a 26 acre parcel and that extensive wetlands across the frontage on Cooper Hill Road prohibits the applicant from crossing in the frontage as required by the zoning ordinances.  He added that the applicant also owns abutting property in an abutting Town through which he is offering access.  He stated that other properties in the neighborhood do not suffer the same problem.  Referring to the Vigeant and Malachy Glen court cases, Attorney Boldt stated that if a usage is permitted in the area, it is presumed reasonable.  He noted that there are other homes in the area and that the applicant has 26 acres with enough uplands and frontage to do this development.  He informed the board that their possible desire to see something else or nothing at all happen to this land is immaterial to their determination.

b.      The benefits sought cannot be achieved by some other method reasonably feasible to pursue.

Attorney Boldt stated that a bridge is not a reasonably feasible alternative to pursue for three single family lots, as supported by the testimony of Mr. Blaisdell.  

4.      The variance is consistent with the spirit of the ordinance.

        Attorney Boldt referred again to the Supreme Court’s indication both the Chester and Malachy Glen cases that the requirements that the variance not be “contrary to the public interest” or “injure the rights of others” are coextensive and are related to the requirement that the variance be consistent with the spirit of the ordinance.  He again stated that there is no express purpose tied to this ordinance and referred members back to the three (3) general purposes of the Nottingham Zoning Ordinances.  

5.      Substantial justice is done.

Attorney Boldt stated that the guiding rule of this factor is that any loss to an individual that is not outweighed by a gain to the general public is an injustice.  He stated that the loss to his client would be the inability to develop this proposed three (3) lot subdivision and that there is no benefit to the denial of the variance gained by the community.  He stated that his client is offering an easement across other property that he owns and that is a basic property right, adding that there would be no benefit gained by anyone for his client to try to cross the wetlands.

Attorney Boldt stated he believed they had met the five criteria and would be happy to answer any questions.  

Chair Leib stated he agrees with most of Attorney Boldt’s responses; however, was not convinced about the spirit of the ordinance.  He stated that the board has been very reluctant to allow access to a lot across an abutting property.  He stated he believes the reason the ordinance was written to contain the curb-cut within the frontage was to eliminate potential problems when the only access is through the neighbor’s land.  Mr. Bassett asked if they had tried to design any other options for access and began to draw other driveways on the plat in front of him.  Attorney Boldt, Mr. Blaisdell, and Mr. Longueil gathered around to see.  Mr. Blaisdell informed Mr. Bassett that the woods road being proposed as a driveway for proposed Lot 15A-2 could also be used for access to proposed Lot 15A-1 as an alternative.  Mr. Morin stated that the reason for the ordinance requiring the curb-cut in the frontage on a town road is for town emergency vehicles and questioned who would be responsible if these accesses come through Northwood.  Attorney Boldt stated that that is the reason for the provision of a waiver in RSA 674:41.  He informed Mr. Morin that a waiver of liability for the town needs to be signed in order to obtain a building permit.  Mr. Morin then stated that he felt that the reason the town maintains the road as an emergency way is because they have an obligation to those that have been there for the hundreds of years prior to zoning.  Mr. Morin asked who owns North River Lake Road.  Attorney Boldt responded that part of it is owned by his client.  He added that he is unaware of any deed that has gone to the town, however, the town maintains the road.  Mr. Morin indicated he felt it was maintained for safety purposes.  Attorney Boldt concurred, adding that all roads are maintained for many reasons.  Chair Leib stated that North River Lake Road was deemed an emergency way.  Attorney Boldt stated he did not know about that.  Mr. Morin felt that was something the board should know before making a decision.  Attorney Boldt stated he thought the board was heading toward the concept of “scattered and premature.”  He informed those present that that term is used for putting lots out in the middle of nowhere, where they really should not be.  He stated that the board has already made the argument against this because there are already so many houses out there.  He added that this request is not a marked change to what already exists.  Attorney Boldt pointed to two (2) properties on the plat that he stated were recently built.  Mr. Seaverns stated that only one had been recently built and that one has frontage and a driveway access to Cooper Hill Road.  Attorney Boldt indicated that the access being used for the lot they were speaking of was not on Cooper Hill Road.  Mr. Seaverns stated that there is a permitting issue and what is out there on the property in reality has nothing to do with what is on the plat.  He further stated that the owner of the piece of road for which that driveway is on never complained about it and may have even granted access.  Referring to Attorney Boldt’s earlier comment, Mr. Seaverns indicated that Mr. Longueil owned that piece of road.  Attorney Boldt agreed and stated that the town not only plows and grades it but put in new culverts last year.  Mr. Seaverns stated that that road is the only access to some of the houses out there, therefore, the town must keep the road passable.  He further stated that the road going through Northwood and out to Route 202 is barely passable and only by certain vehicles.  Mr. Longueil stated that he goes out that way quite frequently.  Mr. Russo stated that it is seasonably passable, noting that there are times it can not be passed because of running water.  Attorney Boldt stated that its status as an emergency lane only affects the town’s responsibility for maintenance, it does not affect its usability as access to these properties.  Mr. Longueil stated that as the developer of this land, he is not going to have an issue with the accesses that go through his property.  Attorney Boldt stated that Nottingham’s zoning ordinances recognized the concept of shared driveways.  Chair Leib agreed adding that the Zoning Board has approved shared driveways that are on the property line.  He further stated that Mr. Longueil is asking for something more than the Board has ever approved.  

Mr. Crowell, indicating several areas on the plat, asked if anyone was aware if these areas had ever been wet during the floods of May.  Mr. Longueil stated they were not wet and had never flooded over.  Mr. Crowell asked Mr. Blaisdell if he had any evidence of that as a soil scientist.  Mr. Blaisdell stated that he would have to be there during those conditions.

Chair Leib invited abutters to speak.  Ms. Daskey stood and stated that her husband had come before the board back in October or November of last year for a subdivision of 10 acres on their property and were denied because of access on a private road, North River Lake Road.  Chair Leib confirmed with Ms. Daskey that they had appeared before the Planning Board.  Ms. Daskey asked if this was the same type of issue, noting that her husband had done all the work on the project back then and she was new to this process.  Chair Leib stated that the board was also new to this issue.  He informed Ms. Daskey that the Planning Board attempts to plan developments in the town and the Zoning Board tries to make sure the if someone wants to vary from what the residents have voted for in the Zoning Ordinances and they meet the criteria, there is a way for them to do that.  Chair Leib stated that the first step in a subdivision is generally the Planning Board, where they will provide advice and let the applicant know if they need to go before the Zoning Board before they can move forward with the case.  He informed Ms. Daskey that in this case, Mr. Longueil has been back and forth before both boards, currently he’s back in front of the Zoning Board, and would probably have to go back to the Planning Board.  Speaking as a former Planning Board Member, Mr. Seaverns stated that the process can become difficult when the applicant goes before the Zoning Board prior to going before the Planning Board because the Zoning Board may make decisions that impact the Planning Board’s ability to do the “planning” that they are charged with.  Ms. Daskey asked if her subdivision would be approved if this one got approved.  Mr. Seaverns stated that each application must be looked at upon its own merits.  Chair Leib stated that Nottingham Zoning Ordinances requires 200’ of frontage on a town road and the driveway/curb-cut must be within that frontage.  He then asked Mr. Seaverns for help.  

Mr. Seaverns shared a history of the lot stating that originally Mr. Longueil had owned two (2) lots, one of them being non-conforming.  He added that Mr. Longueil did a lot line adjustments creating two (2) conforming lots; the triangle shaped lot and the one that is the subject of this proposed subdivision, which includes a piece of North River Lake Road, essentially a driveway, to get to the buildable area.  Mr. Blaisdell stated that in light of that, they did not need to ask for a variance for the proposed driveway to proposed Lot 15A-2.  Mr. Seaverns agreed, but noted that that’s how that lot became conforming and the proposed subdivision creates a problem with the other two (2) proposed lots.  Chair Leib asked why this lot had not been merged with Lot 5 in the early 1990’s when zoning ordinances were changed so that abutting nonconforming lots under the same ownership were merged for development purposes.  Mr. Seaverns stated that even though State law had changed he did not think the town actively merged all lots.  Chair Leib stated that it was done all over Pawtuckaway Lake.  

Attorney Boldt stated that the question before the board tonight was whether the applicant meets the five (5) criteria for an area variance to allow the two (2) accesses through other land owned by the Longueils, which is in Northwood.  

Mr. Wolf stated that he spoke with the Northwood Planning Board and was informed that they had not given Mr. Hickey authorization to write the letter which Mr. Longueil had presented to the Zoning Board.  He further stated he did not understand how the Zoning Board could authorize access through another town.  Chair Leib read three (3) items into the record; the letter from the Nottingham Building Inspector/Code Enforcement Officer, the letter from the Nottingham Conservation Commission, and the pertinent section of the minutes from the September 27, 2007 Northwood Planning Board meeting that Mr. Longueil had attended.  Chair Leib asked why the Building Inspector/Code Enforcement Officer’s letter referenced a 2002 plan.  Mr. Blaisdell stated he believed he forgot to change the date.  

Mr. Seaverns stated that he felt the Zoning Board should be seeing the surrounding properties in Northwood where the accesses come in, noting that the plat is not complete when the driveways go off into nowhere.  Secondly, he felt that it seemed that this plan called for a joint meeting between Nottingham and Northwood.  Attorney Boldt stated that the applicant has produced evidence that Northwood is not concerned and does not wish to have a joint meeting.  Chair Leib said he would definitely like to see where the driveways go in Northwood.  Attorney Boldt asked to be continued to the next meeting at which time they would present the surrounding properties to show the complete span of the proposed accesses.  He also asked if there was any other issue or if the board wanted to see anything else.  Mr. Bassett asked why Mr. Longueil did not sell the lot as a whole.  Attorney Boldt replied that they could turn it into three and meet all criteria with the exception of the frontage.  He reminded Mr. Bassett that the Court has stated in both the Chester and Malachy Glen cases that he Board must look at the plan presented to them, not the plan they would like.  Chair Leib stated he still did not feel that the applicant was meeting the spirit and intent of the ordinance.  Attorney Boldt informed Chair Leib that Malachy Glen specifically states that the Board cannot use the reason the applicant is wanting the variance as the reason for denying the variance.  

Attorney Boldt asked for the next meeting date.  At Chair Leib’s inquiry, all members stated they were available for another meeting on November 27, 2007.  Attorney Boldt confirmed with Mr. Blaisdell that he would have the more detailed plat with the Northwood property available for that date.

Mr. Russo made a motion to recess the meeting of Paul and Leslie Longueil, Case #07-08, to November 27, 2007 at 7:00 PM.  Mr. Crowell seconded the motion.  All in favor.  Motion passed 5-0.

Interested parties left the meeting.  A few moments later Attorney Boldt returned to ask if they could put the meeting one more week out.  Chair Leib stated that it had already been voted on.  Mr. Seaverns stated that all interested parties had left the meeting.  Chair Leib informed Attorney Boldt he would have to pay for renotification.  Attorney Boldt spoke with his client then reported that they would be here on the 27th either with the requested materials or to ask for a continuance.


CASE 07-09      Application from Grace LaPointe for an Area Variance to Article VI Section A1 to allow a driveway access to a proposed lot on Barderry Lane from an abutting lot with frontage on Raymond Road rather than from the frontage on Barderry Lane, a private road.  The lot in question is located on Raymond Road/Barderry Lane, is identified as Tax Map 63 Lot 80-1, and owned by Grace LaPointe.
Chair Leib opened the hearing at 8:50 PM.

Mr. Dingman spoke on behalf of his client, Grace LaPointe.  He supplied the board with copies of a plat and informed the Zoning Board that this subdivision is currently in the Planning Board process.  He stated that they had been moving toward approval on this subdivision in that the Planning Board’s attorney and Ms. LaPointe’s attorney had come to a mutual agreement that although Barderry Lane is a private road, it meets certain conditions under RSA 674:41 to be considered buildable.  He further noted that they were only directed to the Zoning Board because at the last Planning Board meeting the Fernalds, owners of Barderry Lane, supplied a letter stating that they did not wish to grant an easement for access to the proposed lot at this time.  

Mr. Dingman stated that the applicant was proposing to use her approved personal residence driveway on Route 156/Raymond Road as a shared driveway with the proposed lot on Barderry Lane.  He reported that they are proposing an 18’ wide driveway with a 24’ hammerhead for emergency vehicle turnaround.  He stated that the proposed lot is an approvable lot with almost 400’ of frontage on Barderry Lane and again noted that the only issue is that the owners of the road do not wish to grant access at this time.  

Mr. Dingman informed the board that this proposed lot was not being subdivided for financial gain, noting that it was strictly for family use.  He stated that Ms. LaPointe was giving the land to her brother who had suffered some hardships recently with the loss of his wife.  He again stated that there are no other issues with the lot and that they are appearing before the Zoning Board because the owners of the road do not want to grant an access.  Chair Leib stated that subdivisions cannot take place on a private road, noting that ordinances require there be 200’ of frontage and frontage is defined as land abutting a public way.  Mr. Dingman stated that this has been resolved with the Planning Board and that the town’s attorney had already advised the Planning Board that Barderry Lane was an approved road for building.  Chair Leib stated he would like to see the letters.  Ms. Chauvey retrieved the letter from the Planning Board file.

Chair Leib asked Mr. Seaverns if he knew the history of the property.  Mr. Seaverns stated that Barderry Lane was before his time and that he was only aware that a lot line adjustment had taken place to create Lot 80-1, which is owned by Grace LaPointe.  

Chair Leib stated he has the same problem with this case that he had with the previous case in that the Zoning Board has not approved shared driveways that cross one lot to get to another.  He added that he understood that it was going to be family, but voiced concern about the future.  Ms. LaPointe stated that this lot is not going to be sold.  Chair Leib stated that there is a gray area as to what right’s a right-of-way across someone else’s property provides explaining that it raises such questions as does it provide the right to cut trees when they grow over the right-of-way or does it provide the right to bring in gravel and spread it around.  Mr. Dingman stated that all these concerns could be specifically addressed in the deed.  He further stated that there is design flexibility with this plan and that if it would make the board more comfortable the applicant was willing to move the proposed access for the second lot through another area of her lot.  Mr. White stated that when he and Ms. LaPointe first started the process of the subdivision their plan was a shared driveway; however, while researching and moving forward with the Planning Board application, they had determined that the Fernalds should be approached to see if they would grant access through the frontage on Barderry Lane, adding that the request had been denied.  He stated that they respect the Fernalds answer and want to move forward with the shared driveway plan.  Chair Leib stated that he feels that he is usually in favor of the property owner, however he really has a problem with shared driveways.  Mr. Bassett asked if they had considered any other layout for the driveway.  Mr. Dingman, Mr. White, and Mr. Bassett discussed other driveway layouts.  Ms. LaPointe, addressing Chair Leib, again stated that this lot was going to family and would not be sold.  Chair Leib voiced concern that should Ms. LaPointe’s brother sell the property at some point in the future there could be serious problems.  Mr. White stated that they would give the White Family Land Trust the right of first refusal for the proposed lot.  Chair Leib asked if they had considered making the lot a multi-family lot.  He further stated that he was throwing out ideas because he felt that approval of a driveway through one lot to another was going to create a problem in town that the Zoning Board has always avoided.  He acknowledged that the proposed lot was intended for family, but still felt the board should not approve this type of a driveway because others will want to do the same thing.  Mr. Dingman stated that the board is charged with reviewing each case on its own merits.  Chair Leib agreed, adding that at some point these lots will not longer be owned by either Ms. LaPointe or her brother.  Mr. White stated that it is also possible for the Fernalds to grant access from Barderry Lane at some point in the future.  Ms. LaPointe stated that she felt this was a special circumstance, noting that she would not propose a shared driveway for a lot she was subdividing for profit.  Mr. White stated that they had considered the lot line adjustment to accommodate the additional footage for the driveway, however, because it would actually require four (4) lot line adjustments they felt it was better to apply for the variance.  He stated that they had been to the point of approval with the Planning Board and at the last minute the Fernalds supplied a letter stating that they did not wish to grant access to this proposed lot at this time.  He further stated that the Planning Board had recessed the hearing with the recommendation that the applicant approach the Zoning Board for a variance for the shared driveway.  

Chair Leib inquired how far the lot was from Barderry Lane.  Mr. Dingman pointed out the side of the road and noted that it is approximate 10 – 15 feet.  Mr. Seaverns, speaking to Chair Leib, stated that he believed that the subdivision which created Ms. LaPointe’s lot depicted Barderry Lane because it is the abutter and that the Planning Board’s signature does not signify approval of the road because the road was not part of the “development” proposed by the plat.  Mr. Dingman stated that there are other approved plats which do include approved development upon Barderry Lane.  Chair Leib stated that he believes RSA 674:41 does encompass Barderry Lane simply because it is on a plat that has been approved by the Planning Board.  Mr. Seaverns did not agree.

Mr. Bassett asked if members plan to take a site walk.  Chair Leib stated he was familiar with the lot.  Mr. Morin stated he had walked the lot earlier that day.  Mr. Morin stated that he did not understand how a lot could have frontage on a private road.  Mr. Dingman stated that according to RSA 674:41 because there has been approved development on Barderry Lane, the road is open for development to the point of previously approved development.  

Chair Leib again stated he is against a shared driveway across one lot to the other.  Speaking as a realtor, Mr. White stated that when and if the lots are sold, potential owners would be aware that there is a shared driveway and an easement.  Chair Leib stated that does not stop the potential problems.  Mr. White responded that that is a job for the police to handle.  Mr. Dingman, trying to address Chair Leib’s concern of crossing through one lot, offered to move the driveway for the back lot to the property line.  He stated that they would not be able to move the entrance but would be willing to curve the second driveway at the earliest possible point to direct it to the property line so that the easement would not divide Ms. LaPointe’s lot.  Chair Leib stated he felt that plan would come closer to meeting the spirit and intent of the ordinance.  Chair Leib asked if they would bring the property line for the back lot down the middle of the proposed driveway.  Mr. Dingman stated they would not since it would start to interfere with the acreage of Ms. LaPointe’s lot.  He felt that the easement along the property boundary would be the best option.  

Mr. Russo motioned to recess the hearing of Grace LaPointe to November 27, 2007 at 7:00 PM.  Mr. Crowell seconded the motion.  All in favor.  Motion passed 5-0.  


OTHER BUSINESS:

Mr. Seaverns, speaking to Ms. Chauvey, stated that he Planning/Zoning office needs to keep a record of the private roads that have been deemed buildable by the town’s attorney.  

Mr. Bassett stated that he was unclear of the Planning Board’s status of the Longuiel case.  Chair Leib asked Ms. Chauvey if she could provide any information to Mr. Bassett.  Ms. Chauvey stated that she had no information from the Planning Board since Mr. Longueil’s application has not yet gone before them.  Mr. Bassett asked Ms. Chauvey if she could research the correct process for his case.  Ms. Chauvey stated that this is new to all Boards and will set precedents for the proper procedure.  She stated that she was aware that Mr. Daskey had come in before the Planning Board for a preliminary hearing at the beginning of the year and was told that his plan had issues that needed to be resolved because of the private road but was not actually denied.  She further stated that the Daskey’s had not come back with an application to move forward.  She informed the board that she felt the Selectmen and the Planning Board were doing a lot of research on understanding the RSAs pertaining to building on private roads because there had been a lot of applicants coming forward with this issue this year.

Mr. Russo asked if anyone sitting on the board had any experience with the multi-town piece of the Longueil plan, noting that he is uncomfortable with the Zoning Board making decisions that involve other towns.  Ms. Chauvey informed the Board that Mr. Longueil had included notification to the Town of Northwood’s Planning Board, Board of Selectmen, and Town Clerk, individually.  

Discussion of Re-Hearing for Neighborhood Guardians

Chair Leib stated that he had read the motion for a rehearing several times and did not see where the Neighborhood Guardians addressed the fact that the board had decided they had no jurisdiction.  He stated that he felt it was interesting that they did however address the fact that Mr. Russo did not disqualify himself for the hearing.  Chair Leib, addressing Mr. Russo, asked if he wished to continue to participate in the discussion of the rehearing.  Mr. Russo stated that he most certainly did.

Chair Leib stated the he believes that the Zoning Board is only granted power to hear cases related to zoning and the original appeal by the Neighborhood Guardians was concerning State permits for which they have no jurisdiction over.  He stated that he still believes that the Zoning Board does not have any jurisdiction in this case.  Mr. Russo stated that the Zoning Board of Adjustment is the first Board of Appeal for an administrative decision.  Chair Leib added “related to zoning.”  Mr. Russo stated that was not the case according to NH RSA 676:5.  He stated that the Zoning Board is the first Board of Appeal for any action by the Building Inspector, the Board of Selectmen, or the Planning Board.  Chair Leib again stated that it must relate to zoning.  Mr. Russo disagreed.  Chair Leib read NH RSA 676:5 which refers to the Zoning Board’s powers according to RSA 676:33.  He then read from 676:33, stating that it all refers back to the Zoning Ordinances.  Mr. Russo stated that, in larger construct, it was the actions of the Zoning Board that allowed the process to move forward.  He further stated that the Planning Board then added conditions to the approval which are an interpretation of the Nottingham Zoning Ordinances.  He stated that the Neighborhood Guardians claim on the 18th and again in the request for the rehearing is that the stipulations of the Planning Board were not followed by the Building Inspector.  Mr. Russo stated that the Neighborhood Guardians grievance is that the Building Inspector did not follow what the Planning Board said they needed to do and the Planning Board works under the interpretation of the Zoning Ordinances.  Chair Leib stated that he did not follow that line of thought.  Mr. Russo stated that he had contacted Attorney Paul Sanderson at the Local Government Center and asked if anyone else had done any research.  Chair Leib stated he did not feel he needed to research it any further, adding that if the zoning ordinance contained language that included State requirements and permits he would feel differently.  Mr. Russo stated that it does.  Chair Leib stated it does not.  Mr. Russo stated that the Site Plan stipulations state that all State permits must be in effect.  Chair Leib held up his copy of the Nottingham Building Code and Zoning Ordinances and stated that what was contained in those pages was all that the Zoning Board had the power to enforce.  Mr. Russo inquired about conditions of approval set by the Planning Board.  Chair Leib stated that the Zoning Board does not have the power to enforce what is not in the Zoning Ordinances.  Mr. Russo again stated that the Zoning Board is the first Board of Appeal on an administrative decision.  Again, Chair Leib added “relating to zoning.”  Mr. Russo stated that everything that is done is an application of the zoning ordinance.  Chair Leib stated that it has to be specifically spelled out in the Zoning Ordinance.  He added that if the Selectmen did something that someone did not like and that person filed an appeal, it would not be an appeal to the Zoning Board unless it related to the zoning ordinance.  Mr. Russo asked who enforces site plan approval conditions.  Chair Leib stated that that had been discussed at the meeting held for this original case.  Ms. Chauvey stated that Attorney Teague had said that if conditions set by the Planning Board were not being followed, the complainant should go to the Planning Board who, if they so chose, would then go to the Selectmen for enforcement.  Mr. Russo stated that the Building Inspector is the enforcement agent of the Board of Selectmen and he did not enforce it, therefore, it was appealed to the Zoning Board.  Chair Leib, speaking to Mr. Russo, asked what the recourse would be if two parties went to court and came to an agreement but at some time in the future one of the parties felt the agreement was being violated.  Mr. Russo stated that a grievance should be filed with the same court.  Chair Leib asked why the Neighborhood Guardians were appealing to the Zoning Board and not the Court.  Mr. Russo replied that it is the Selectmen’s job to enforce the Planning Board’s stipulation that all State permits are in full force and effect, adding that that is a very common stipulation to any large building project.  Mr. Seaverns stated that he believed the Zoning Board was saying that the Guardians appeal in this particular case should go to the Selectmen, or if the Guardians felt that there was some significant issue associated with the site plan review that they go back to the Planning Board to address it.  He added that the problem with that is that the Planning Board has nothing to do with the Building Inspector or the Board of Selectmen.  Mr. Seaverns stated the he feels this appeal needs to go to the Board of Selectmen.  Mr. Russo stated that this case went before the Zoning Board the last time and was accepted.  Ms. Chauvey stated that the last case was founded on a driveway permit, which is specifically listed in the Zoning Ordinance.  Chair Leib stated that the zoning ordinance spells out that a driveway permit is required in order to obtain a building permit, noting again that if the zoning ordinances stated that all applicable State permits must be in place, then he would feel differently about the Zoning Board’s jurisdiction.  Mr. Russo stated he did not want to spend any more of the Board’s time trying to convince them of this issue, adding that it would be up to Judge McHugh to decide.  

Mr. Morin made a motion to deny the request for a rehearing based on the belief that the Zoning Board does not have jurisdiction over this case.  Mr. Bassett seconded the motion.  Chair Leib, Mr. Morin, Mr. Bassett, and Mr. Crowell voted in favor of the motion.  Mr. Russo voted in opposition.  Motion passed 4-1.


Mr. Russo made a motion to adjourn the meeting.  Mr. Bassett seconded the motion.  All in favor.  Motion passed 5-0.

Meeting adjourned 10:15 PM.



Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary