NOTTINGHAM ZONING BOARD OF ADJUSTMENT
March 1, 2011
PUBLIC SESSION
Approved & Amended
PRESENT: ABSENT:
Mike Russo, Chair Kevin Bassett, Alternate
Romeo Danais John Morin, Vice Chair
James Morin
Bonnie Winona, Alternate (seated)
James Crowell, Alternate (seated)
Peter Landry (not seated)
OTHERS PRESENT:
Ms. Lisa Sears, Land Use Clerk ,
Charlie Brown, Town Administrator
Robert & Linda Peterson
Chair Mike Russo called the meeting to order at 7:02 pm. Chair Russo noted the Peter Landry has recused himself and seated Mr. Crowell for Mr. Landry. Ms. Winona was seated for John Morin. He explained the night’s proceedings and with agreement from the Board members to review the previous minutes after the public hearings, proceeded to open the public hearing for the case:
Case 11-01-V Application from Douglas N. Leib for a Variance to Article VI Section A.1.a &c, to subdivide a 6.8 acre parcel into 3 lots, none of the proposed lots can meet the frontage requirement of having 200’ of frontage on a pubic road (Class V or better). The lot in question is on a private road. Two of the proposed lots have existing homes, the third proposed lot cannot meet the (200’ x200’ square or 30,000 contiguous sq ft) lot envelope requirement (buildable area). The lot in question is located at 8 Cahill Lane, identified as Tax Map 68 Lot 49, and is owned by Douglas N. Leib Living Trust, Douglas N. Leib,
Mrs. Sears confirmed that Mr. Leib has authorized Mr. Landry to speak on his behalf because the corresponding form had not been filed with the application. Mr. Landry gave a brief description of the property in question and the surrounding parcels. He stated that Mr. Leib’s lot was unique because it was larger at 6.8 acres with about a half a mile of waterfront. He noted most surrounding lots were about 10,000 square foot “camp” lots. Mr. Landry also provided a brief history of the lot, noting the camp lots were divided in the 1950’s and 60’s.
Mr. Landry reviewed the proposed plans dated 2/27/2011, noting the existing conditions include that Cahill Lane is a private drive/lane with Emergency Lane status, and the location of the two existing homes on the property. He suggested that they could go through the process of getting Cahill Lane accepted as a town road and maybe over time the road could be reclassified as a town road. Mr. Landry also stated the other requirement they could not meet was the 200’x 200’ or 30,000 contiguous square foot area lot envelope requirement even with the 6.8 acres on this unique shaped lot with all the setbacks from property line and waterfront for all three lots.
Mr. Landry noted that it was divided in 3 lots to give each existing home its own lot and create a third lot. He went on to suggest that in the future that “Shore Drive could become a town road and then Cahill Lane would maybe then could become a town road, also.” He noted that if approved here and at the Planning Board subdivision process then what was a non conforming lot would now become a conforming lot. (the proposed plan has all 3 lots with 200’ of “frontage” on a Cahill Lane (currently private)). He also added that they have designed a 50’right of way to fit with the existing travel way of Cahill Lane. He also noted that they have also proposed that there are 2 new and one existing gravel driveway curb cuts for each lot onto Cahill Lane.
Mr. Landry discussed the additional variance requested for the third lot’s lot envelope. He explained that with approved test pits, they could meet the well and septic system requirements but not within the required lot envelope size. It was an alternative way to meet the same end result. Mr. Landry stated that his and Mr. Leib’s interpretation of the Zoning Ordinance (ZO) is the two proposed lots with existing homes do not need a variance for lot envelope size because the parent lot was nonconforming so they are grandfathered. Mr. Leib read and reviewed the section of the ZO. Discussion continued on how to interpret this section.
Mrs. Sears noted that this meeting noticed for only the one lot requesting the variance for lot envelope. She asked if the Board agrees with the applicant that the two other lots are grandfathered or do the two other lots need to show the lot envelope requirement because they are now “new” lots.
Mr. Landry continued his presentation on how this proposal meets the 5 criteria for the variance. He noted that they believe they have met the spirit of the ordinance because there would be little to no impact with one additional home in the area. Mr. Landry stated that they were taking the two structures on one nonconforming lot and if approved tonight and after the proper Planning Board approval process these two lots will become two conforming lots, with a structure on each, so that will be cleaned up and that goes with the spirit of the ordinance.
He stated that some might say they have 59’ of “frontage” on Shore Drive but by laying out right of way (Cahill Lane) with at least 200’ of “frontage” for each proposed lot that they believe they are getting more inline with what the Zoning Ordinance is asking for. He noted that he was using the word “frontage” probably incorrectly because Shore Drive is a private road also.
Ms. Winona asked about the deeds and the right of way for the abutters, current and future use. Mr. Leib noted that all abutters but the Peterson’s (TM 68 L48) have deeded rights of way.
Mr. Landry discussed the character of the neighborhood and that they were asking for lots bigger than the neighborhood’s. He noted that justice would be done because they are correcting two homes on one lot, setting up Cahill Lane to become a town road and the new proposed lot is larger and meets the 2 acre lot requirement. He also noted that a new home would increase the values of the surrounding neighborhood.
Mr. Landry explained that this lot was unique and a hardship because it is the biggest lot on the lake besides the Fernald lot and it has woodland buffers that other lots in the area do not have to meet.
Mr. Danais asked about the third lot that has no home on it. They discussed how that the proposed third lot has 2.6 acres including the land know as Cahill Lane, without including the land for Cahill Lane the lot would only have 1.69 acres, 1.13 acres goes towards an easement (or town road should it become one someday), and if not approved as a town road eventually then the third lot owner would own Cahill Lane all the way to Shore Drive. There was a brief discussion on other private roads in town and ownership of those roads.
Mr. Landry noted that none of the islands noted on the plan were assigned to any lot at this point in the proposed plan. Mr. Landry also briefly discussed other variance cases in town.
Mr. Leib added that they will also be required to meet all state requirements including Shoreland Protection Act and State subdivision approvals, in addition to town requirements. Mr. Landry added that the State concerns are with wells and septic systems and would probably only need one half acre per lot with these types of soils and slopes. He noted the town requires the 2 acres with frontage and lot envelopes. Mr. Landry briefly reviewed the Town’s lot envelope requirement, compared the Town’s requirements vs. the State’s, and buffer’s from the water for structures, wells, and septic systems.
Chair Russo asked about the placement of the proposed leach field on the proposed lot and how it relates to the property line. Discussion was on setbacks and what happens when well vs septic radii cross property lines. It was noted that test pits have not been completed at this point of the proposal.
Chair Russo noted that if approved tonight then they would go to the Planning Board for subdivision regulation approval including all state permits.
Mr. Leib added that he hadn’t considered subdividing until the property tax increased over the last few years. He said he considers it a hardship because it doesn’t qualify for current use and the high assessed value ($650,000) because of the large amount waterfront land.
Mr. Peterson, M68 L48 asked about his driveway access from Cahill Lane, even though they are on Shore Drive they currently use access via his driveway off Cahill Lane. It was noted that this access/easement was not part of his deed at this point. Mr. & Mrs. Peterson noted that they have been using this access for 25 years. Mr. Landry noted that Mr. Leib has granted him permission, and something can be arranged formally by way of easements/legal documents that get recorded for a negotiated dollar amount and set amount of time. It was also noted that they don’t use/have access on Shore Drive because of their septic system is there.
Discussion moved to the previous discussion on if the Board believes that by creating the 3 new lots, they all must meet the lot envelope requirement including the 2 lots with existing homes or not. If the Board does then this meeting wasn’t properly noticed. If the Board doesn’t then it was noticed correctly. Chair Russo read the appropriate section of the ZO. Mr. Leib and Mr. Landry believe that the parent lot is exempt because it was non conforming. Discussions were on when the parent lot is divided to the new lots does it then now have to meet the ZO or is it exempt. The Board eventually agreed with the applicant, that it was exempt. They also had a brief discussion on the history of the property and whether there was building permits issued for the 2 main dwellings; no one was positive on the dates built
and they assumed there were building permits issued. Mrs. Sears noted more research would be needed to confirm if a building permit was issued for each of the dwellings on the property, as Mr. Crowell assumed.
MOTION by Mr. Russo that based on the testimony presented so far tonight, that this meeting is properly noticed. (the two other lots with existing structures are not required to meet lot the current envelope requirements).
SECOND by Mr. Morin
VOTE 5-Aye. 0- Opposed – 0-Abstained MOTION PASSED
Mr. Brown, Town Administrator noted that the road issue is a big one and that he believes that the chances of Cahill Lane ever becoming a town road were very slim. Mr. Brown’s other concerns were; if granting this would set any kind of precedent, possibly making 2 lots instead of the 3 lots proposed with the last one being nonconforming, he also asked if their was State legislation governing subdividing on private roads, he also empathized with the tax burden of the applicant. Mr. Brown reviewed the State RSA on emergency lane status for private roads.
Mrs. Sears read section of the legal opinion from Local Government Center noting that the Emergency Lane status of a private road only allows towns to spend town money on private roads to allow for emergency access (plowing, culverts, etc) but it doesn’t change the status of the road to a “town” road.
Chair Russo discussed the memo from Paul Colby, Code Administrator (dated March 1, 2011) citing RSA 674:16 and his opinion that the applicant must first be given a denial from an administrative official before he can appeal to this Board. Chair Russo believes this request for a variance falls under RSA 647:33 I(b), the rest of the Board agreed.
Chair Russo also added that the ZBA can grant variances to town ordinances but not to State regulations. He reviewed in detail the State requirements for issuing a building permit on a private road (Page 540 of A Hard Road to Travel (RSA 674:41)). Chair Russo wanted to let the applicant know that he sees the issue of getting a building permit for the third lot as a tough one even though that is not what this Board can consider. Chair Russo noted the section on “future” hardship and stated that he believes if the third lot was created that would be a future hardship/practical difficulty for that future owner and a risk they would have to take.
Mr. Landry stated that he was not an expert but he didn’t believe that creating this third lot would be a hardship for a future owner, as Mr. Russo stated, but that it was a “buyers beware” situation for whoever purchases that third lot. Discussion was briefly on homeowner’s insurance, and mortgages for homes on private roads.
Mrs. Sears noted that recent changes in the law for granting variances including the section in the OEP handbook stating if they believe the applicant can’t met even one of the five criteria then they are required to vote to deny it. The Board agreed to review each question for each requested variance (frontage issue and lot envelope issue). Ms. Winona asked the applicant if his answers to the criteria questions were for both requests. Mr. Leib stated they were.
Chair Russo closed the public hearing.
Chair Russo reminded the Board that if the Board should find they need more information on anything that they can recess the meeting until another night as they have 30 days to render their findings. Mrs. Sears reminded the Board to be specific in their reasons for what they find either in favor or not.
The Board first reviewed the criteria for the variance request for having no frontage on a Class V road or better. The five criteria are below with the Boards remarks on if they believe it each one was met.
- Granting the variance would not be contrary to the public interest because:
All the members agreed that the applicant met this criteria.
- If the Variance were granted, the spirit of the ordinance would be observed because:
All the members agreed that the applicant met this criteria except Ms. Winnoa who stated that she didn’t believe they did because she was concerned with setting precedent.
- Granting the variance would do substantial justice because:
All the members agreed that the applicant met this criteria.
- If the variance is granted, the values of the surrounding properties would not be diminished because:
Ms. Winnoa expressed concern that the abutters at Map 68 Lot 48 and that their property could be diminished if their access/driveway were denied by the future owner of the new proposed third lot that they are creating with the granting of this variance, and if Mr. Leib should sell the lot. Detailed discussion was on if the Board should be considering this or not. Ms. Winnoa and Chair Russo did, Mr. Danais did not think it should be. Chair Russo suggested dealing with this issue as some kind of condition of approval that allows the abutter consideration for continued use of easement for their lot. Mr. Landry was allowed to speak dispite the public hearing being closed. Mr. Landry suggested that the ZBA could remind the Planning Board of this concern.
Mrs. Sears noted that any conditions should be noted in the motion to grant or deny so that it will sure to be followed up on. Mr. Morin, Mr. Danais, and Mr. Crowell believe the applicant met this requirement.
a. Owing to special conditions of the property that distinguish it from other properties in the area, denial of the variance would result in unnecessary hardship because:
1. No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property because:
There was much discussion if there was or wasn’t hardship in this case. Mr. Danais noted that the hardship for the applicant was high property taxes but acknowledged that was not part of what makes this property unique. Mr. Danais noted that he didn’t see what was unique about the property that is a hardship noting he doesn’t have to have 3 lots or even two.
Mr. Landry was allowed to speak again, and added that the unique feature is that it is too large for the neighborhood and there is no zoning to allow them to blend into the remaining neighborhood.
Mr. Danais noted Mr. Leib has a lot with access and two houses on it, he sees no hardship, it was only a financial hardship. He stated that he likes the proposal and hopes he gets it but based on hardship he doesn’t see one.
Mr. Crowell stated that denial of the variance is a hardship to the applicant and denies him enjoyment of property he owns and is a reasonable use of it as he would like to use it. He added that as long as it fits in with the spirit of the ordinance then “he should be allowed to subdivide it into 1, 2 or 3 lots.”
Mr. Danais now stated that he believes the hardship is that a denial would deny the applicant full use of his land to the maximum that could be allowed, which doesn’t overly impact the area. He added that “by denying the ability to cut 1 <lot> into 3 <lots> would impact him as a hardship because all the other lots in the area are 10,000 <square feet>. So why deny him the ability of creating 3 parcels when all the rest of the parcels around are much smaller than this.” Mr. Morin agreed.
Mr. Landry was allowed to speak again, and stated that “a hardship only exists owning to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance of the ordinance then a variance is necessary to enable a reasonable use of the property.” He added that the hardship is that they have 200’ of frontage but it’s not on a Class VI road.
Ms. Winona stated that she believes it to be a reasonable use. Chair Russo noted that he doesn’t believe that the applicant has a unique hardship and all the properties in the neighborhood on a private road have a hardship but there is nothing unique about this one. He added that the hardship criteria had not been met, that wanting a reduced tax impact is not a hardship because everyone in town would want that. He did note that it was a reasonable proposal but he believes there are other avenues and there is no hardship by not allowing him to subdivide. Chair Russo noted the applicant already accesses the lot and uses and enjoys the lot.
Mr. Danais believes the question before them is: What is the best use of the property for that neighborhood. He noted that the hardship is not being able to “exploit the land in a manner that is consistent with the neighborhood.”
Chair Russo also express concern for the future third lot owner and perhaps setting a building on private roads precedent for the Town of Nottingham.
Mr. Crowell stated that it was the Planning Board that would create this subdivision not this Board. Chair Russo and Mr. Danais disagreed noting if this Board approves this the Planning Board can only make sure that the project follows the Subdivision Regulations and can’t deny it because it is on a private road as Mr. Crowell believed.
Ms. Winona expressed concern for building on private roads and setting a precedent, as well but did agree that this lot was unique due to its size compared to the smaller lots in the neighborhood.
Mr. Morin noted that this was a smaller subdivision and the applicant was not asking for 30 lots.
2. The proposed use is a reasonable one because:
All the members agreed that the applicant met this criteria.
b. Explain how, if the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.
MOTION by Mr. Russo to approve the variance from to Article VI Section A.1.a (no frontage on Class VI road or better) with the condition that the Chair of the ZBA send a letter to the Planning Board with the ZBA’s concerns for the abutters’ access/easement.
SECOND by Mr. Winona
VOTE 3-Aye. 2- Opposed – 0-Abstained MOTION PASSED
MOTION by Mr. Danais to take a 5 minute recess at 9:48pm
SECOND by Mr. Russo
VOTE 5-Aye. 0- Opposed – 0-Abstained MOTION PASSED
Chair Russo called the meeting back to order at 9:53pm.
The Board reviewed in detail the second variance request for the lot envelope requirement with the same 5 criteria. They continued to review each criteria with no objections. All members agreed that the applicant had met each criteria.
MOTION by Mr. Russo to the variance from to Article VI Section A.1.c.
SECOND by Danais
VOTE 5-Aye. 0- Opposed – 0-Abstained MOTION PASSED
During the discussion Mr. Morin became ill and was excused from the participation after the vote.
Chair Russo reminded the applicant of the 30 day appeal process.
Approval of Minutes
The Board tabled the minutes
MOTION by Mr. Danais to adjourn the meeting.
SECOND by Mr. Russo
VOTE 4- Aye. 0- Opposed – 0-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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