NOTTINGHAM ZONING BOARD OF ADJUSTMENT
April 22, 2008
PUBLIC SESSION
APPROVED & AMMENDED
PRESENT: ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Bassett, Alternate
Mr. John Morin Mr. James Crowell, Alternate
Mr. Jim Howard
Mr. James Morin
Mr. Mike Russo
Ms. Lisa Sears, Land Use Clerk
OTHERS PRESENT:
Atty. Christopher Boldt, DT&C
Nelson Smith, Sr., Midge Smith, Charles Reid, Anne Dickerson, Kelby Longueil, Terry Bonser, Mary Bonser
Chair Leib called the meeting to order at 7:01 PM. He explained that there was a full Board of 5 members; it takes 3 votes to pass. He noted that tonight’s meeting was for the Board discussion and decision, elect officers and approve minutes.
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.
Chair Leib noted that Atty. Boldt passed out a handout on a recent decision for a case he believes is related to this case. (Community Resources for Justice, Inc. v. City of Manchester, NH Docket No. 2007-646, Issued April 18, 2008) He noted that he would read the five criteria and have each member to vote on and to see if they believe each of the criteria was met; at least 3 members must believe it meets each of the five criteria in order for the area variance to be granted. He read and discussed each of the criteria, including the answers submitted by Atty. Boldt (March 4, 2008):
#1 The First Criteria: the value of the surrounding properties would not be diminished.
Chair Leib and the Board agreed with Atty. Boldt that granting the variance would maintain the character of the area, which consists primarily of single family homes.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim Howard
#2 The Second Criteria: the variance will not be contrary to the public interest.
The Board discussed what the definition of public interest. Mr. John Morin stated that he drove around and saw that there are other shared driveways in town and doesn’t believe it is contrary to the public interest. He noted it was done before. Mr. Russo discussed that his concern was that those were curb cuts on a different class road. He noted these are curb cuts on an emergency lane and that creates a hardship for future owners. He referenced A Hard Road to Travel and how easy it is for the Selectmen to abandon the emergency lane status on a class VI road. Chair Leib noted that he felt this was related to the Spirit of the Ordinance issue. Mr. John Morin stated that he felt it was ok to do for 3 properties with large acreage as this and it keeps the rural character of the Town. Chair Leib stated that he
had a problem with driveway going 1000’ across someone else’s property.
VOTE: Aye-, Mr. James Morin, Mr. John Morin, Mr. Jim Howard
Opposed- Mr. Doug Leib, Chair, Mr. Mike Russo
#3 The Third Criteria: denial of the variance would result in unnecessary hardship because a special condition make an area variance necessary in order to allow the development and the benefit sought cannot be achieved by some other method reasonably feasible to pursue other than the area variance.
The Board discussed the large amount of wetlands in the frontage. Mr. Russo stated that he didn’t think there was enough evidence presented for alternate access. Other Board members stated there was no other access and there were surrounding wetlands in any of the proposed areas.
Chair Leib noted that Mr. Blaisdell testified that DES would never allow a crossing over the large wetlands in the frontage.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim Howard
#4 The Forth Criteria: the variance is consistent with the spirit of the ordinance
Chair Leib discussed what “spirit of the ordinance” means. He read the Nottingham Zoning Ordinance, page 5, Section 1B; #1-6.
Mr. Howard stated that he felt it keep with the rural character, and it’s not overcrowding, and the safety of the future owners and the public would not be an issue. He stated that you have to look at how it relates to the ordinances of the town. He stated they have met these criteria.
Mr. John Morin agreed with Mr. Howard and added that it was not fair to not allow the use of this land. He stated that they “absolutely” meet the spirit of the ordinance.
Chair Leib didn’t think that this met the spirit and intent of the ordinance, stating that with his 8 years of experience on the Board that he could see problems down the road with neighbors that can’t get along. He noted the long length of the crossing of the properties.
Mr. Russo agreed with Chair Leib and cited RSA 674:4.1, He noted he was not in favor of granting access that didn’t go through the frontage; he added that he didn’t have a problem with the shared driveway. He felt that granting this access would be a hardship for future land owners.
VOTE: Aye-, Mr. James Morin, Mr. John Morin, Mr. Jim Howard
Opposed- Mr. Doug Leib, Chair, Mr. Mike Russo
#5 The Fifth Criteria: Substantial justice is done
Chair Leib read what substantial justice is.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim Howard
Chair Leib noted the votes on the five criteria and called for a motion to approve the variance application of Paul & Leslie Longueil, as written on the April 1st agenda.
MOTION by Mr. Howard to approve the variance as written and stated by Chair Leib.
SECOND by Mr. Jim Morin
VOTE 3-Aye: Mr. Jim Morin, Mr. Jim Howard, and Mr. John Morin 2- Opposed: Chair Leib and Mr. Russo - Abstained MOTION PASSED
Atty. Bolt thanked the Board.
Point of Order: The Board took a brief recess to write and fill out the fact sheets for the case. Chair Leib reviewed his changes to the minutes, members also reviewed the minutes of April 1, 2008. Mrs. Sears discussed the accepted method of taking and approving minutes. Ms. Bonser commented that she does not approve of this method and will be discussing it at the upcoming Board of Selectmen’s meeting. Mrs. Sears noted that her method is the accepted practice and has been recommended by Attorney Paul Sanderson at Local Government Center. Mr. Russo stated that just because Nottingham has always done it one way doesn’t make it the right way. He felt it would be better to do them in this new accepted way. Ms. Bonser stated she believes that there was no consensus of opinion on how they should be done. She
stated that we should have a policy (for old method) and should stick to it. Mr. Russo stated that he liked the new method; it was clear, concise and professional.
Mr. Howard noted the error on tonight’s agenda. Mrs. Sears noted that she was not familiar with what the correct phrasing should say. The Board stated it should not have said “continued public discussion”. It should have said just noted that the Board would be making decisions on the following cases.
Chair Leib called the meeting back to order.
Approval of Minutes
April 1, 2008
The following changes were made by the Board:
Line 91: change There is to There are
Line 93: change consistence to consistent
Line 96: change imposable to impossible
Line 104: can not should be cannot
Line 11: insert other after access
Line 138: change grant to meet
Line 178: delete where the
Line 198: where should be were, were should be where
Line 221: change keep to kept
Line 247: add an apostrophe to Boards
Line 287: delete the s on Adjustments
MOTION by Mr. Howard to approve the April 1, 2008 minutes, as amended
SECOND by Mr. Russo
VOTE 5-Aye. 0- Opposed – 0-Abstained MOTION PASSED
Chair Leib moved to the discussion for 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.
#1 The First Criteria: the value of the surrounding properties would not be diminished.
Mr. Howard noted that he felt it would be a better use, if granted, than to have an RV there, and use the property for some agricultural use.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim Howard.
#2 The Second Criteria: the variance will not be contrary to the public interest.
Chair Leib read Mr. Smith’s answer to this question, noting that commercial operations would stop if granted. Mr. Howard added that the land would also now be maintained with the agricultural use. Mr. Russo had concerns of lack of enforcement that the Town of Nottingham has had in the past. Chair Leib noted that the condition of stopping the commercial operations would have to be made in the motion as a condition, if granted. He noted it can only be a condition that the Zoning Board has under their jurisdiction. He noted that the Zoning Board granted the original Special Exception to run the commercial operation out of this property and so they have the ability to rescind that. Mr. Russo noted that there needs to be a time table that the commercial operations must stop. Chair Leib noted it could be upon Planning
Board approval of this project. Chair Leib noted that the Planning Board could note on their subdivision plat, that the Special Exception for the commercial operation is no valid. The Board noted the minutes of the last meeting, agreeing to the commercial operation. Mr. Smith stated that he will still have some equipment to clear land but none for his business. Chair Leib noted the reduced frontage.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim Howard.
#3 The Third Criteria: denial of the variance would result in unnecessary hardship because a
special condition make an area variance necessary in order to allow the development and the benefit sought cannot be achieved by some other method reasonably feasible to pursue other than the area variance.
Chair Leib read the applicants answer from his application, and discussed how the property was land locked.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim
Howard.
#4 The Forth Criteria: the variance is consistent with the spirit of the ordinance.
Chair noted if this was allowed to happen, there was no overcrowding. Mr. John Morin noted that it was better for the abutters and the town to not have the commercial operation.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim Howard.
#5 The Fifth Criteria: Substantial justice is done.
Chair Leib noted that there is no greater gain by the Town by denying this variance. He asked for a motion to approve this application, noting all the requirements have been met.
VOTE: aye- Mr. Doug Leib, Chair, Mr. James Morin, Mr. Mike Russo, Mr. John Morin, Mr. Jim Howard.
MOTION by Mr. Howard to approve this case #08-01 as written, with the condition that the Special Exception granted for the commercial operation on the property cease upon Planning Board approval of this subdivision.
SECOND by Mr. Russo
VOTE 5-Aye. 0- Opposed – 0-Abstained MOTION PASSED
Chair Leib explained the 30 day appeal process. The Board told Mr. Smith that this variance is good for one year.
ELECTION OF OFFICERS
MOTION by Mr. Howard nominated Mr. John Morin as Vice Chair
Mr. John Morin declined the nomination.
Chair Leib noted that he may be missing a lot of meetings in the next year.
MOTION by Mr. John Morin to elect Mr. Russo as Vice Chair.
SECOND by Chair Leib
VOTE 5-Aye. 0- Opposed - Abstained MOTION PASSED
MOTION by Mr. Jim Morin to elect Doug Leib as Chair.
SECOND by Jim Howard
VOTE 5-Aye. 0- Opposed - Abstained MOTION PASSED
MOTION by Mr. John Morin to elect John Morin as Clerk.
SECOND by Mr. Russo
VOTE 5-Aye. 0- Opposed - Abstained MOTION PASSED
MOTION by Mr. Jim Morin to adjourn the meeting at 8:15pm
SECOND by Mr. Russo
VOTE 4-Aye. 0- Opposed – 1-Abstained MOTION PASSED
Respectfully Submitted,
Lisa L. Sears
Land Use Clerk
These minutes are subject to approval at a regularly scheduled Zoning Board of Adjustment meeting at which time the above minutes are corrected or accepted.
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