NOTTINGHAM ZONING BOARD OF ADJUSTMENT
May 3, 2011
PUBLIC SESSION
Approved & Amended
PRESENT: ABSENT:
Mike Russo, Chair Jim Crowell, Alternate
Terry Bonser
Romeo Danais
Bonnie Winona
Kevin Bassett, Alternate
Peter Landry (not seated)
OTHERS PRESENT:
Ms. Lisa Sears, Land Use Clerk
Charlie Brown, Town Administrator
Linda Peterson, Doug Leib, Mary Bonser, John Morin, Steve Dibble, Michael Donovan
Chair Mike Russo called the meeting to order at 7:03 pm. Chair Russo noted that Peter Landry has recused himself and seated Mr. Bassett for Mr. Landry. Chair Russo noted that Mr. Bassett was reappointed at the June 1, 2010 meeting and has been sworn in by Mr. Brown just before this meeting was called to order. Chair Russo explained the night’s proceedings and with agreement from the Board members moved the review of the minutes until after tonight’s case.
Case 11-01-V2
Application from Douglas N. Leib for a Variance to Article VI Section A.1.a &c, a 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,
Chair Russo asked to read a section on RSA 674:41 from A Hard Road to Travel before the applicant presented his case. Mr. Leib, the applicant, addressed the Chair and stated that he believes that the Board’s duty is to decide the variances in relation to the Zoning Ordinance (ZO). Chair Russo disagreed noting that the building inspector would send him to this Board. Chair Russo read RSA 674:41 I(e) and Mr. Leib believes he would qualify as exempt under this RSA. Ms. Winona added that her research showed Cahill Lane on a plan from 1955. Mr. Leib appreciated
that Chair Russo was forewarning him of what he may have to deal with after this Board but he didn’t believe that it should be discussed tonight.
Chair Russo read page 118, paragraph (II) of A Hard Road to Travel discussing minimum road access under State law. Mr. Leib believes that he has a plan with Cahill Lane so he doesn’t fall under the section Chair Russo read. Mr. Landry implied discussion on this RSA is premature noting that they don’t have the lot so they wouldn’t need to ask for the building permit yet. Chair Russo noted that if they grant the subdivision it’s purpose is for a building, therefore creating an unnecessary hardship for the applicant. Chair Russo stated that he didn’t believe it was the role of the ZBA to waive statutory requirements of the State. Mr. Leib disagreed.
Mr. Landry reviewed the proposal including the existing conditions of the property. He noted that there are currently 2 existing dwellings on the property. He added that the applicant would like to separate the 2 dwellings onto their own lots and a third buildable lot that includes a 50’ right of way (Cahill Lane). Mr. Landry stated that the property was unique due to its large size/shape, large amount of water frontage, that it is a peninsula on a dead end, right of way. He also noted that the third lot doesn’t meet the buildable area requirement. The requirement is for 200’ x 200’ or 30,000 Square feet and the third lot has 6,000 square feet after meeting all the setback requirements. He again noted that they are also asking for the variance to the 200’ of frontage on a town road as well.
Mr. Bonser asked about the size of the parent lot including Cahill Lane. Mr. Landry noted Cahill Lane (including the 50’ right of way to all the proposed lots) is part of the proposed third lot for a total of 2.6 acres; if the right of way (1.13 acres) was taken out of the calculations then the third lot would be 1.47 acres, less than the required 2 acres. Discussion was on how Cahill Lane has almost 59’ of access on to Shore Drive (private) and who owns the abutting lots and their access.
Discussion then moved to who maintains Cahill Lane, and its emergency lane status. Mr. Brown noted that it has been such since 1995. He noted that emergency lanes and their criteria are under review by the Board of Selectmen right now. Attorney Donovan reviewed the history of emergency lane statue in New Hampshire; noting that any emergency lane status doesn’t change a road’s classification. It was noted that the two other roads that you need to travel to get to Cahill Lane are also private, Route 156 is the closest Class V road or better and it is approximately 3200/3400’ away.
Ms. Winona asked about the two dwellings’ age and if there were town issued building permits for them. Mr. Leib stated he didn’t know if there were and that the original home was build some time in the 1930s and the second home was built some time in the mid to late 1980s. Mrs. Sears reviewed the existing land use files for the property and stated that there were no building permits for either dwelling, only for such items as the decks and game room on the property. Later discussion was on septic systems for each dwelling; it was noted that the main home has a State approved septic system because Mr. Leib had it replaced in the year 2000. Mr. Landry noted that the second home does have a septic system and well but he wasn’t sure if it was a State approved one.
Ms. Winona noted her concern about the septic systems was because she wanted to know what the Town has allowed on the property. Mr. Bassett noted that he lives on the end of Shore Drive and believes that the second home was built in the mid 80’s and that the town plow does go all down the end of Shore Drive. Mr. Leib gave a brief history of the structures on the property to the best of his knowledge. Ms. Peterson stated that she believes the second home was built closer to the late 80’s.
Discussion was on variance for the buildable area, and the issue rose at the first hearing in regards to whether the buildable area is needed for all three lots and not just for the proposed new lot as requested by the applicant. Attorney Donavan disagreed with the Board at the first hearing which concluded that only the third lot needed this variance.
Mr. Landry discussed the third lot has only 6,190 Sq ft buildable area after the setbacks from the lake, wetlands, right of way and property lines. He noted that the State requirements for this type of lot and soils, for a four bedroom is about 1.1 acres and all three proposed lots could meet that requirement adding that the requirement is to fit a septic system. He noted that they came in asking for this variance for just the third lot and they believed that the two other lots with existing buildings were exempt from that requirement and the Board had agreed to it. Mr. Leib added that he believes that the two lots with existing dwellings do not need the 30,000 sq ft buildable area because the dwellings have existed there for 20-50 years, and are grandfathered.
Mr. Landry reviewed the applicant’s answers on the first four questions for meeting the variance criteria; noting that the proposal fits in with the rural character of the town, it makes a non conforming lot less non conforming by placing each of the two existing dwellings onto their own non conforming lot, and that it fits into the character of the zoning of the neighborhood and therefore meets the substantial justice. He also noted that there would be no diminished value if granted and perhaps the surrounding areas may increase.
Attorney Dibble referred to and read RSA 674:33 I(b)5 “unnecessary hardship” criteria stating that the proposed use is residential use in a residential neighborhood. He stated that the public purpose of the frontage requirement on a public way is for overcrowding and emergency vehicles access to a property. He stated that this property is land that ends and no one will ever be driving there unless they have business there and it’s not a thoroughfare. He proposed that it was more of shared driveway which the ordinance allows for (for 2 structures not 3). He added that a public way was not absolutely necessary to serve the varying interest of the public purpose; no school bus or garbage trucks will need to access this road. He stated that the zoning requirement of 200’ of frontage on a Class V or
better road was trying to “shoe horn a two acre Zoning provision into a whole neighborhood of quarter acre lots” and they contend that is inappropriate for this particular parcel because its configuration, it is 7 acres on a dead end and it has emergency lane status. He added that they are only adding one more structure and each of those structures have more land than the surrounding lots. Attorney Dibble stated that he believes that the emergency lane status of Cahill Lane (and the other two private roads used to access Cahill Lane) “for all intent and purpose” makes Cahill Lane a Class V road. He added that making these private roads comply with the Class V status “doesn’t serve any greater public purpose than granting the variance in the first place” because this is a “road to nowhere”.
Chair Russo disagreed with Attorney Dibble’s conclusion that these roads exist as emergency lanes and will always be such. He noted that the statue is clear that emergency lane status can be revoked at anytime. Attorney Dibble again stated that he believes that in practice “Cahill Lane is a Class V road except in name”. Chair Russo disagreed noting that the Statue requires there be a “public benefit” to designating a private road as an emergency lane, above and beyond serving the residents of that neighborhood.
Mr. Bonser noted that a variance would be needed for a shared driveway for more than two lots. Mr. Bassett asked if each of the two proposed lots with existing homes could meet the buildable area requirement. Mr. Landry confirmed that they can not. Chair Russo added that the existing homes were there before that requirement.
Attorney Donavan representing the Board of Selectmen thanked the Zoning Board of Adjustment for granting this rehearing. He also stated that a variance can only be granted by the ZBA if they find that each of all five of the Statutory Requirements exists. He submitted that they haven’t met them all. He passed out a written response dated May 3, 2011 as to why the criteria have not been met. Each member received a copy. Mr. Donavan also noted that sometimes to apply only those Statutory Requirements as part of their duty as ZBA members can be difficult. He added that thinking the proposal is reasonable or that the applicant is a good person can’t be considered.
Attorney Donavan stated that the applicant has not met 4 of the 5 criteria required: there is no Unnecessary Hardship, it is contrary to Public Interest, it is inconsistent with the Spirit of the Ordinance, and the variance would not result in Substantial Justice being served. He reviewed these points highlighted in his written response submitted. He also asked that the letter requesting the rehearing, from Mr. Brown on behalf of the Board of Selectmen, dated March 22, 2011 be added into the record.
Attorney Donavan briefly discussed the legislation overview on case law such as the Simplex decision. He then noted that there is an absence of Special Conditions as part of the unnecessary hardship requirement. He explained that the property’s size, configuration and that it is on a private road are not special conditions that distinguish it from other parcels in the area. Attorney Donavan explained that if you were to find the size, configuration and location on a private road were special conditions then there would be a dangerous precedent set for the whole town. He noted that the small lots surrounding this parcel can’t be used as the unnecessary hardship argument and nor can economic circumstances (high taxes) be used to meet the unnecessary hardship requirement.
Attorney Donavan then reviewed RSA 674:41 and how if approving this variance for this subdivision would essentially would be skipping over the Planning Board’s authority and process as well as the Board of Selectmen’s authority to regulate and approve building on a private road(s) as noted in the RSA. He explained that granting the variance will not achieve substantial justice but would be injustice because if the ZBA approves the variance, the ZBA will have created a hardship for the applicant because if the Board of Selectmen then doesn’t approve building this new lot (per RSA 674:41) they would have to come back to the ZBA on appeal, then which the ZBA would have to grant it.
Attorney Donavan reviewed the public purpose of the 200’ of frontage on a Class V or better road noting that purpose of requiring the 200’ of frontage is spacing of the homes and public safety. He added that there are certain standards of width and construction which allow for two-way traffic to safely pass, including emergency vehicles. He noted that there are sections of Cahill Lane and Shore Drive are narrow gravel ways without sufficient width for safe passage of emergency vehicles. He also added that both are marginal, substandard drainage and structural conditions. He also noted that there is approximately 3500’ of these substandard private roads.
Attorney Donavan then reviewed what the key test is and would the variance unduly, and a marked degree conflict with the ordinance such that it violates the ordinance’s basic zoning objectives. He noted for public safety reasons the variance should be denied. He noted if the variance request was for perhaps 100’ from a Class V road that may justify the variance but this request was for access over those substandard roads for almost two thirds of a mile which is a marked degree of conflict of the purpose of the requirement and inconsistent with the spirit of the ordinance and contrary to the public interest to grant this request and therefore should be denied.
Attorney Donavan explained his position why all three lots must meet the lot envelope requirement (200’ x 200’ or 30,000 sq ft of contiguous buildable area). He explained that even though 2 of the three new lots will have existing buildings on them, they are considered new lots and every new lot created in town must meet the Zoning Ordinance. He stated only thing that is grandfathered is the original parcel which will no longer exist if the subdivision is approved. He went on to explain the purpose of the buildable area requirement is to have enough upland for a house and septic system including enough room for a replacement septic system if needed. He added that the extent of deviation is too large; he noted that the requirement is for 30,000 sf and they are requesting 6,000 sf which is again a marked
degree of conflict.
Attorney Donavan asked on behalf of the Board of Selectmen (BOS) that the ZBA to deny the application for these variances for the reasons stated.
Chair Russo and Ms. Winona asked if there were building permits granted by the BOS, for the existing homes on Cahill Lane. Ms. Bonser noted that she didn’t know of any.
Ms. Winona stated it would be helpful to know how many building permits have been issued on private roads in the whole town. Mr. Leib guessed that only half the houses on Shore Drive have been issued permits. Discussion continued on granting of building on private roads and the history of doing so. Attorney Donavan added that what you may have allowed in the past may not be relevant in following the laws now. He added that the law is clear (RSA 674:41) and there is a whole process including a reliability release form. During the discussion Mrs. Sears again noted that there are no building permits for either of the existing homes.
Discussion moved to if Cahill Lane was exempt because it was a street approved by the local governing body on a recorded and approved (by the ZBA or BOS) plat before the Town authorized the Planning Board to regulate subdivisions. Attorney Dibble submitted a set of plans (non-certified) signed by the building inspector at the time. The Board briefly reviewed them with Mr. Leib. Later, the Board allowed Mr. Leib to bring the plans in to Mrs. Sears to make copies from his originals. No decision was made in regards to whether this road qualifies as exempt per RSA 674:41.
Mr. Leib stated that he doesn’t believe they are in conflict with the ZO. He read the purposes in the preamble (pg 5) of the ZO noting his proposal wasn’t in conflict with any of this purposes. He also read the vision statement of the Master Plan (2004) stating he wasn’t in conflict with any of the goals.
Mr. Brown stated he had the opposite interpretation of it noting that making more lots losses the rural character, and the land to support all the septic systems on the lake is already difficult, they don’t need any more lots down there.
Chair Russo noted the purpose of the buildable area requirement is for health and safety of the public as stated in the sections read by Mr. Leib.
Attorney Donavan noted that when you talk about purpose of the ordinance while granting a variance you have to consider not the general purpose that Mr. Leib read but the specific requirement being asked for in the variance (the buildable area and 200’ of frontage on a town road) RSA 674:33 I (b)(5)(A)(i).
Ms. Peterson, an abutter who uses Cahill Lane to access her abutting property asked the Board for assurance that whatever they decide to consider them. Chair Russo acknowledged her concern noting his previous recommendation during the vote of original hearing for this case. He asked that the Board consider this fact again during any decision or motion.
Mr. Bonser asked again about setting a precedent. Attorney Donavan noted that it would be setting one because anyone with large lot on a private road could argue they meet the same conditions. Attorney Dibble disagreed stating he believes this parcel’s special condition is that it is so isolated and has a half mile of water frontage and there are very few like it in town.
Chair Russo closed the public hearing and acknowledges the large amount of evidence presented. He added they can take 30 days to decide but could hear no more evidence at the next public meeting.
Mr. Danais suggested he would make a motion to have both sides submit written responses of their case. Ms. Winona suggested the ZBA have access to counsel. It was noted that the ZBA would have to have separate counsel than that the Town has already retained.
Chair Russo suggested that the Board take the evidence presented to date and meet with their own counsel to discuss it and make a decision.
Discussion was on if Mrs. Sears should do a transcript of the minutes. Chair Russo noted that evidence was in the original application submitted, testimony given by all parties tonight and Attorney Donavan written response, and the two maps presented tonight. Mr. Brown noted that Mrs. Sears is not equipped to do transcripts. The Board decided to meet again on Tuesday, May 10, 2011 at 7:15pm to deliberate and formulate questions for counsel but not hold a public hearing. Chair Russo will work on obtaining counsel for the ZBA, as well.
MOTION by Mr. Russo to continue the public meeting on May 10, 2011 at 7:15pm
SECOND by Mr. Bassett
VOTE 5- Aye. 0- Opposed – 0-Abstained MOTION PASSED
The Board tabled the review of the minutes.
MOTION by Mr. Danais to adjourn the meeting at 9:10pm
SECOND by Mr. Bassett
VOTE 5- 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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