NOTTINGHAM ZONING BOARD OF ADJUSTMENT
April 1, 2008
PUBLIC SESSION
DRAFT- NOT FINAL UNTIL APPROVED BY THE BOARD
PRESENT: ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Bassett, Alternate
Mr. John Morin
Mr. Jim Howard
Mr. James Morin
Mr. Mike Russo
Ms. Lisa Sears, Land Use Clerk
OTHERS PRESENT:
Atty. Christopher Boldt, DT&C
Mr. Roscoe Blaisdell, Surveyor/Wetlands Scientist
Burt & Sharon Simmons, Nelson Smith, Sr., Sam Demeritt, Charles Reid, Kelby Longueil, Shelly Colby, Bill Dean, Dale Elwell, Ken Levenson and Traci Chauvey
Chair Leib called the meeting to order at 7:00 PM. He explained that there was a full Board of 5 members; it takes 3 votes to pass. He also introduced the new secretary, Lisa Sears, and noted the former secretary, Traci Chauvey, was also present. He briefly noted the items on the agenda and explained the process of this hearing, and read the first case.
Case 07-08R Motion for Rehearing from Attorney Christopher Boldt on behalf of Paul and Leslie Longueil for an Area Variance to Article VI Section A1, requiring a curb cut in the required minimum frontage, to allow access to two proposed building sites on Cooper Hill Road through right-of-ways that cross abutting lots. The lot being discussed is located on Cooper Hill Road, identified as Tax Map 16 Lot 15A, and is owned by Paul and Leslie Longueil Revocable Trust of 1996.
Atty. Boldt explained a brief history of the case, and presented the new plans. He noted the new plan has changed to have the access that comes in from existing driveways/wetland crossings. He noted the plan is a revised plan of Roscoe Blaisdell (dated 2/2/08) He reviewed the “Request for Findings and Fact” (dated March 4, 2008, DT&C) handout that was originally passed out at the last meeting. (The last meeting did not have a quorum or a Recording Secretary.)
Atty. Boldt noted that extensive wetlands exist in the frontage of all the proposed lots.
Noting it is physically impossible to get from Cooper Hill Road up to the upland sites of this property. He explained the access for each lot on the plans. Lot 15A has a proposed access through a shared driveway with their existing Longueil property. Lot 15A-1 would have a shared driveway through an existing woods road off North River Lake Road, approximately 150’. He again noted the significant wetlands that are in the frontage of the lots, which can not be crossed. He noted that Lot 15A-2 does not need a variance because it has access along it’s frontage along North River Lake Road.
Atty. Boldt noted that they are here before the Board to determine if they meet the 5 criteria for an area variance from the ordinance that requires the driveways to be in the frontage. He noted on the plans that the applicant owns the adjacent lots on the Northwood side of Lot 15A. He reviewed the tax maps and the plans, including a previous lot line adjustment, the parcels sizes and accesses to the areas. He noted the lots in that neighborhood on North River Lake Road and North River Lake Road East have longer driveway distances than what they are proposing in their plans. He also cited and reviewed the history of the Daskey Lot created in 1994 with no frontage on Cooper Hill Road.(documents provided in the case file).
Atty. Boldt noted that the Nottingham Zoning Ordinance, Article IV Section (A)(1) allows for common driveways and does not have any limits on it’s location or length. It only has to come in through property in Nottingham.
Chair Leib noted that it says that the curb cut has to be within the required frontage. Atty. Boldt noted that is what they are here asking relief from. He noted that you can’t use the provisions he is asking relief from, as grounds for denying the variance. He noted he just has to meet the 5 criteria as to why he should get that variance. They briefly discussed RSA 674:53. Atty. Boldt also noted that the Town’s Subdivision regulations recognize the right to have “common/shared driveways”. (Article V Section (B)(3)(b)(2)) so long as it is at least 16’. He noted they would be able to meet those criteria.
Atty. Boldt cited the La Pointe application and asked that any and all related documents for that case be included in the record of this case, if this case is denied and this case proceeds to an appeal. He briefly reviewed the La Pointe case history. He noted this case was more compiling because the denied access for La Pointe was a problem with the owner/abutter and in this case it is a physical limitation of wetlands that cannot be crossed.
Mr. Blaisdell, Surveyor and Certified Wetlands Scientist stated that the wetlands size and type would never be approved by the State (DES). He noted he has smaller, less disruptive projects that were denied.
Discussion continued noting the La Pointe case and the “spirit of the ordinance” (pg 7 of 8 of the ZBA minutes of that case) and having the proposed driveways peal off as soon as possible. Atty. Boldt noted that they believe this to be a reasonable use for this property with land that can be developed. These lots will be large, 6 to almost 11 acres in size, each.
Atty. Boldt reviewed the variance criteria and noted the value of the surrounding properties would not be diminished because it keeps with the general character of the single family home/lots of the area. He presented a letter to that effect from Dianne Lombardo, Lombardo Real Estate & Management, LLC stating so. He also presented a letter from the Town of Northwood’s Building Inspector stating that the proposed driveway would not require any approvals by the Town of Northwood.
Atty Boldt continued on the criteria noting that the granting of the variance will not be contrary to the public interest because there is no conflict with the ordinance. There is no reasons or concerns that are stated in the ordinance that support it. He noted the items in the ordinances such as keeping rural character, land use is consistence with the capability of the land, the land use doesn’t have deleterious effect on the other property. He noted they would be preserving the views and the wetlands by using existing wetland crossings. He noted that is what DES encourages. Additionally, it would be physically imposable to build a bridge that would be more disturbing to the wetlands and would not be economical. He cited the case of Chester Rod and Gun Club, Inc. v. Town of Chester, 152 NH 577, 581 (2005)
and Malachy Glen Assoc., Inc. v. Town of Chichester, 155 NH 102 (007) He also noted that they will meet all requirements for emergency access.
He reviewed the criteria that denial would result in unnecessary hardship because it is a permitted use of the property. He noted it is an area variance and is governed by the Boccia criteria rather than the Simplex criteria. Atty. Boldt explained that the court has ruled that the Board can not consider an alternate plan; say 2 lots instead of 3. He noted that when the use is permitted it is presumed reasonable. The question of whether the property can be used differently from what is proposed is not material. (Vigeant v. Town of Hudson) he noted there are no alternate methods to obtain access to two of the three proposed lots. He noted that the uniqueness or special conditions of this property are the great length of the frontage and vast wetlands, it abounds an emergency lane access of North River
Lake Road, and applicant is also an abutter but that still doesn’t allow for an alternate access than what is being proposed. The need for the variance is tied to the physical uniqueness of the property and no permit would be issued to cross it. Atty. Boldt noted that they have also incorporated past concerns of this Board. He asks that the Board follow the law.
Discussion continued on the fourth criteria; is the variance consistent with the spirit of the ordinance. He noted that the ordinance to have the driveways in the frontage has no express purpose, the driveways come out in existing access for existing lots and if it is good enough for those it should also be good enough for these proposed lots. He also reviewed the area for building sites on the plan.
On the fifth criteria, Atty. Boldt noted that if denied the applicant would have a substantial loss and there would be no benefit to the general public, therefore creating an injustice. He believes that if denied it would be equal to a “taking” of the Longueil’s land. Atty. Boldt stated that he believes that they meet all the criteria for the granting of this variance.
Chair Leib stated he agreed with the shared driveways but referred to the wording of the ordinance. His concern was “requiring”. Noting it doesn’t say should or it would be nice. Atty. Boldt noted that they meet all the other requirements except that one and that is why they are asking relief from that provision. He noted he can’t meet that but he does meet the 5 criteria for the variance. He again cited the Malachy Glen case that states you can’t use the provisions he is asking for as grounds for denying the variance. He believes that is not sufficient grounds to deny this variance and believes a court would not uphold that.
Chair Leib agreed that our ordinances do not explain how anything was arrived at. He noted that all the ZBA can do is come to a reasonable understanding of what we believe the intent of the ordinance is. He asked what is “close enough” in order to still meet the “spirit of the ordinance.” Atty. Boldt noted that by that logic no one would ever be able to grant the constitutional requirement to grant relief from any provision and the court would not support that. He understood the Chair to be saying that the only way to meet the spirit of the ordinance is if you don’t need it.
Chair Leib read the ordinance again and they discussed RSA 674:41. They agreed that was a separate issue but discussion continued on what RSA 674:41 means. Chair Leib noted that this RSA supports his view of the “spirit or the ordinance”. Atty. Boldt disagreed and suggested this was off point and that the question was do they meet the 5 criteria for the variance and also noted RSA 674:53. He reviewed those details of RSA 674:53 and suggested the Chester Rod and Gun case supports his position and not that of the Chair’s. The Attorney believes the evidence does not warrant a denial of this case. He suggested that the Board check with Town counsel to see if this passage is something they can’t grant a variance to. He submits that no such passage exists.
Mr. Russo asked about alternative access through their property on the Northwood side. Atty Boldt and Mr. Blaisdell noted that there is a similar wetland that extends all through that area. Mr. Russo asked if the extent of all the applicants land could provide an alternate access. Atty Boldt noted everything they own has the same extent of wetlands that DES wouldn’t permit a crossing for.
Chair Leib called for abutters, there were none and the hearing was closed to public input. He noted that the debate and vote for this case will be made at the April 22, 2008 meeting.
Point of Order: The Board took a brief recess from 8:07pm -8:13pm.
Chair Leib again noted the review process and that it takes a vote of 3 to pass. He noted all questions should be directed to the Chair. He noted the Board has 30 days to make a decision on a case. He read the next case.
Case 08-01 Application from Nelson Smith, Sr. for an Area Variance to Article VI Section 1.3.b, Back Lot Subdivision for Single family Dwellings: Lot Requirements, to allow for less than the required minimum of 200’ of frontage. The lot in question is located at 91 McCrillis Road, identified as Tax Map 25 Lot 16-2, and is owned by Nelson Smith, Sr.
ChairLeib noted that he has the required acreage but not the frontage. Mr. Smith reviewed his request and diagram. He has only has only 200.84’ of frontage and he needs 220’ to meet the requirements. He showed on the plan where the proposed lot line would go, along the property line of TM 25 Lot 17, owned by the Simmons. He noted there is an existing right of way and driveway that he has been using for accessing the property to store his construction equipment. He also showed that where the there is an existing State Approved, 3 Bedroom Septic installed on the proposed lot. He noted that it is currently used for his motor home but would be for the proposed 3 bedroom home.
Mr. Smith noted that he meets all other criteria, including acreage and emergency access but the frontage. He asked the Board to approve the reduced frontage of 180.84’ so he can use a 20’ right of way for access to the proposed back lot.
Mr. Smith explained that he was retiring within the next year or two, adding that the home will be for his elderly in laws. Mr. Smith stated that he would be halting the excavating business that he is currently running at this location, if approved.
Chair Leib asked where the proposed house would be and Mr. Smith showed where it would be on the diagram, near the existing septic system (state approval #196714-1992). He also noted that all wetlands permits are also on file with the Town of Nottingham and the State of New Hampshire. He noted that he has had his land surveyed by RSL land surveyors due to abutter problems in the past and there are no infringements to any wetlands. Chair called for Board or abutter questions.
At this point the abutters joined the discussion at the table to review the diagrams provided Mr. Smith again reviewed his proposal. The abutters concerns where; were the proposed home was and the distance from the nearest abutter. Mr. Smith noted the closest abutter would be about 78’ away. Other answers provided by Mr. Smith were:
· There are no proposed garages, just a parking area.
· The tanks that are there now are dry well tanks and are used for storage for his business.
· It’s approximately 500’ from the rear abutters
· He plans to turn a large portion of the land into agricultural/fields and will keep some of his equipment that he needs to do that. It may take until the summer of 2009 to complete this.
· He would stop commercial activities, if granted.
· All other equipment and “junk” will be removed from the property, if granted.
Chair Leib noted that the Special Exception granted to Mr. Smith and only Mr. Smith for his commercial business he runs out of this property will go away if this is granted. Mr. Smith noted that his in laws will occupy the home but he will eventually sell it in order to support his retirement.
Chair Leib did note that the Board can not tell him what he can and can not have on his lot. That is beyond the scope of the Board.
Mr. Smith agreed to Mr. Dean’s (17 Lavoie Drive) request to leave his equipment and not move it down to the proposed new lot area. Mr. Dean is not an immediate abutter but is down flow of any run off and had concerns for his well water. Mr. Smith explained what buffers he had keep around the lot.
Mr. Reid gave a brief history of this lot and his concerns. He stated when originally created these lots where given large amounts of land but where told not to come back at a later date to try to subdivide them. He cited a similar request to the Board from Cameron Reid (no relation) that was denied but had more land and more frontage than Mr. Smith. Chair Leib explained that the question is whether it is allowed under the ordinances and if he meets the criteria to grant the variance. He noted that Mr. Smith meets all the other criteria the Board is allowed to look at. Chair Leib noted that Mr. Reid’s concerns did not fall under the Zoning Board.
Mr. Smith noted again all his property is surveyed and all wetlands permits where granted and documented and there are no outstanding issues. He noted he was only here for the reduce frontage issue.
Chair Leib noted they have to only consider if he meets the requirement necessary to be granted this variance. Mr. Levenson wanted confirmation that the existing Special Exception to run the commercial enterprise would no longer be valid if this was granted. Chair Leib agreed that it would cease and it would have to cease on the whole lot.
Point of Order: the tape recorder stopped functioning during this topic and was restarted shortly after. Portions of these minutes were created from the notes of Ms. Sears.
Discussion continued on what was allowed to be considered by the Board. Mr. Smith noted a rough time table of when his business would stop. More questions were raised like wetlands area and trees and buffers. Ms. Chauvey noted that this type of issue comes under the Planning Board process and not this Boards. Mr. Levenson asked who was the enforcement to any of these issues if, in the future, if they believe Mr. Smith was in violation. Chair Leib noted it was the Town’s Board of Selectmen that do any enforcement.
Mr. Dean read some concerns he and other abutters had all of which already were covered in the Zoning Ordinances or come under the Planning Board. (copy in file) Chair Leib again explained samples of conditions that the ZBA can or can not apply. They must relate to the Zoning Ordinance. The Board appreciated receiving the items in writing. There were no more questions from the public or the Board. Chair Leib closed to public input. Mr. Smith thanked the Board.
Chair Leib noted since they where holding a meeting on April 22nd for the previous case that he would like to make a decision that same night. It would give the new member time to do any review or research. He explained that Mr. James Morin was recently elected to the Board. The Board agreed to the April 22nd meeting.
MINUTES
The Board tabled the approval of the minutes. Chair Leib noted that the January 29th minutes were approved at the March 4th meeting. Chair Leib noted it was his handwriting error that was made. The March 4th minutes will be reviewed at the April 22nd meeting and these minutes.
FEES
The Board agreed after a brief discussion to raise the fee for each abutter from $8 to $10 each in order to cover increasing costs. Ms. Sears will send a letter to the BOS recommending that.
ELECTION OF OFFICERS
The Board tabled this until the April 22nd meeting.
CORRESPONDENCE
Chair Leib would like the mail opened on the side an not the top. The Board reviewed upcoming local workshops.
Mr. Russo made a motion to adjourn the meeting. Mr. James Morin seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at approximately 9:35 PM.
Respectfully Submitted,
Lisa L. Sears
Land Use Clerk
These minutes are subject to approval at a regularly scheduled Zoning Board of Adjustments meeting at which time the above minutes are corrected or accepted.
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