Skip Navigation
This table is used for column layout.
 
Zoning Board of Adjustment Minutes 05/18/2011
NOTTINGHAM ZONING BOARD OF ADJUSTMENT
May 18, 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, applicant’s surveyor)         
        
OTHERS PRESENT:
Ms. Lisa Sears, Land Use Clerk, Mary Bonser, Gary Anderson, Attorney Michael Donovan, Charles Brown; Town Administrator,  

Chair Mike Russo called the meeting to order at 7:15pm. Mr. Landry was recused. Mr. Bassett was seated for Mr. Landry. With agreement from the Board members moved the review of the minutes until after tonight’s case. Chair Russo called the case. It was noted that while this was a public meeting the Board would not be taking comments from the public.

        Case 11-01-V2
        Continued 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 members if they had any additional questions or comments and asked members to fill out Statements of Reasons-Variance Worksheets for each the variances requested. Mr. Bassett commented on Line 187 of the minutes of May 3, 2011. He added that he measured the width of Shore Drive in a few spots and noted that it was between 21’ and 32’ in various sections. Mr. Bassett also noted the road conditions and widths of Seaman’s Point Road (15’) and Cahill Lane (15’-18’). He stated he believes that Shore Drive is wide enough for emergency vehicles to pass. It was noted that the Town road width standard is 24’ now and had been 20’ in the past.

The Board first discussed the variance for less than the required buildable area (Article VI. Section A.1.c). Before the discussion, each Board member filled out their worksheet with their answers on the five criteria for a variance (worksheets were made part of the property file and copies are available in the Planning/Zoning office). Each member read their answer. Mrs. Sears kept a tally of how each member voted (informally) on each criterion, announcing the final tally at the end of each criterion.


Mrs. Sears asked if the Board was discussing the applicant’s request for a variance on just the “third” lot or were their answers for all three lots, which in previous meetings was suggested that the applicant needed. The Board discussed and determined that they were only considering the request for the variance on the one “third” vacant proposed lot and not the other two proposed lots that have existing structures on them. Mr. Bonser noted the Board had discussed this issue before he was on the Board. He noted that once a new lot line is drawn the buildable area is required, just as in any new subdivision.

  • Granting the Variance (would – would not) be contrary to the public interest because:
Ms. Winona, Mr. Bassett and Mr. Danais all stated that it “would not” be contrary to public interest. Mr. Bonser stated it “would” be contrary to the public interest because the requested is for only 20% of the requirement. Mr. Russo agreed and noted that it would create a hardship for the new owner in order to get a building permit and safety and security issues. He noted that he went on a site walk and thought it looked better on paper than in person. The Board reviewed the contours on the plans. Mr. Danais discussed what he believes the purpose of the buildable area requirement. Mrs. Sears noted 3 members believe the criterion has been met but 2 members do not.

  • The spirit of the ordinance (would –would not) be observed because:
Mr. Bonser noted that it “would not” be met citing the requirement is 30,000 sf and they only have 6,000 sf and that is “not even close”. Mr. Danais stated it “would” because nothing conflicts with intent or the spirit of the ordinance. Ms. Winona stated it “would” because it would improve the area and the health and safety issues have been met. Mr. Bassett stated it “would” because he believes 6000 sf of buildable area is adequate for a dwelling, well and septic and he didn’t see any safety issues. Mr. Russo stated that it “would not” because of the marked difference from the requirement. Discussion was on the density of the area. Mrs. Sears noted 3 members believe the criterion is met but 2 members do not.

  • Granting the variance (would – would not) do substantial justice because:
Mr. Bassett stated it “would” because it would utilize the land to the fullest extent and still meet State and Town requirements. Ms. Winona also stated it “would” because it was the highest and best use of that land. She also added that it feels right to her and to do other wise would be like trying to balance what was done in the past on the back of this property (owner) and that doesn’t feel right, it is an unusual piece of land because it has so much waterfront. Mr. Danais stated it “would” because it would not overly restrict the use of the lot due to its odd shape and shoreline boundaries. He too stated that the lot is unusual and believes the surveyor has worked within the intent the Zoning Ordinance. Mr. Bonser noted that he viewed it differently, noting that this subdivision could require a road built or to return to the ZBA for the shared driveway. He stated that this could be two lots but it was the third lot that “would not” do substantial justice. Mr. Russo agreed it “would not” and added two lots with the two existing structures would be a reasonable request but shoehorning that third lot was not right to him. He recognized that in the 1950’s things were allowed but this is 2011 and the Town has different zoning and it is valid and wants to adhere to it. He suggested that dividing into two lots with the existing home on each would be substantial justice. Mrs. Sears noted 3 members believe the criterion is met but 2 members do not.

  • For the following reasons, the values of the surrounding properties (would – would not) be diminished:
All the members agreed that no surrounding properties values would be diminished and some suggested that the values would increase.

  • Unnecessary Hardship
  • 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:
  • There (is –is not) a fair and substantial relationship between the general public purpose of the ordinance provision and the specific application of the provision to property because:
  • The proposed use (is- is not) a reasonable one because:
Mr. Bassett stated that there “is not” because this lot is unique having 2 acres on the lake. He noted it was reasonable because it was residential dwelling in a residential area. Ms. Winona stated “is not” because the property is caught in a dead end point and cannot be considered backland. She added that she too thought it was a reasonable one because it better meets the Zoning than the existing neighborhood. Mr. Danais read from the RSA book for Unnecessary Hardship and stated that there “is not” because the property is an odd shape, peninsula. He also believes the proposed use is a reasonable one because the configuration of the lot dictates the need for the lenience.

Mr. Bonser stated that he didn’t believe there was unnecessary hardship. He added that by adding that third lot they cause their own hardship and that third lot doesn’t meet the 2 acres. Mr. Russo agreed noting that the property can be used as is with two existing homes and the shape and configurations are natural. He believes that having 3 lots is unreasonable due to the proximity to the water’s height and distance. Mrs. Sears noted 3 members believe the criterion has been met but 2 members do not.

B.       The criteria in subparagraph (A) having not been established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from the 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. The property (can-cannot) be used in strict conformance with the ordinance because:

Chair Russo noted that because of the 3 to 2 vote they didn’t discuss B.

MOTION by Mr. Danais to approve variance to Article VI Section A.1.c for case 11-01-V2. (Tax Map 68 Lot 49)
SECOND by Ms. Winona
VOTE 3- Aye. 2- Opposed – 0-Abstained MOTION PASSED

The Board passed Mrs. Sears their worksheets for this request and worked on the worksheet for the next variance, Article VI. Section A.1.a.

  • Granting the Variance (would – would not) be contrary to the public interest because:
Mr. Bonser noted that “would” because it’s not a town road and questioned the “frontage” on Cahill Lane noting that there really is no “frontage” because it’s a private road and the third lot uses that land for Cahill Lane to reach its 2 acre calculation. The Board reviewed the plan again. Mr. Bonser also stated that the private road with emergency lane status doesn’t give the landowner any right to subdivide. Mr. Danais first stated “is” because of density but Chair Russo noted the request was for  a variance to the 200’ frontage on a Class V road or better and did not pertain to any density issue. Mr. Danais asked for time to reword his answer. Ms. Winona noted that she visited the property and could not understand how the BOS has granted emergency lane status to this area because it seemed to just be a driveway to her.

During the criteria discussion, Ms. Winona wanted to discuss including possible conditions if granted. She would like to require that Cahill Lane be widened to 24’ that the 3 new lots are required to have a Home Owner’s Association (HOA), therefore relieving the Town of the burden of maintaining it and also requiring them to bring it up to town standards. She also suggested that Mr. Leib preserve, correct and record any existing rights of way or access for any property owner currently using Cahill Lane.

Later on, the discussion was on a possible HOA and if that was appropriate to make the 3 new lots carry the burden for all of Cahill Lane. Mr. Danais and Chair Russo stated that it was not appropriate for only 3 of as many as 7 homes required to maintain the road.

Discussion moved back to the criteria, question #1. Mr. Bassett’s answer was not audible but his worksheet states that it “would not” because he believes that all three new lots have frontage. And if the town wanted this road to meet Class V status it would take appropriate steps to make it so by helping the residents on the road modify and submit for a Class V. Mr. Danais restated that he believed it “would not” be contrary to the public interest, but didn’t offer any further reasoning.

Chair Russo noted that the town doesn’t go out and look for private roads to make into town roads. It is the opposite that occurs, residents must ask the town. He added that he believes it “would” be contrary to the public interest because it creates more burdens on a private road on what he considers an inappropriately labeled emergency lane. Mrs. Sears noted 3 members believe the criterion is met but 2 members do not.


  • The spirit of the ordinance (would –would not) be observed because:
Mr. Bassett believes it “would” be observed because taxes would go up. Ms. Winona also believes it “would” because there are thousands of lots on private roads in town. Mr. Danais also believes it “would” because there is adequate frontage to service the lot.

Mr. Bonser stated it “would not” noting that the third lot would cut off the other two lots leaving them land locked from access. If the third lot doesn’t use the road in it’s size calculations then that lot goes below the required 2 acres to 1.65 acres. Ms. Winona disagreed.

Mr. Russo stated that it would not be observed because it would be a marked disagreement of the requirements; he noted that Cahill Lane, Shore Drive and Seamen’s Point are not Class V roads (they are all private roads) which makes Cahill Lane over 2000’ from a Class V road (Route 156). Mrs. Sears noted 3 members believe the criterion is met but 2 members do not.

  • Granting the variance (would – would not) do substantial justice because:
Mr. Bonser “would not” because it’s a private road. Mr. Danais stated he believes it “would” because “it follows the spirit of the suggestion of the ordinance; that all lots be afforded adequate frontage for egress and ingress and this road is a road, it may not be a Class V but it’s a road.”

Ms. Winona said it “would” because it would allow the owner to use the land at its highest and best use on a recognized, existing traveled way. Mr. Bassett said it “would” because he believes all lot setbacks and frontage are met and it is an established road known by the town as an emergency way.

Chair Russo noted it “would not” because it makes a bad situation worse, and it doesn’t follow the spirit of the ordinance and is contrary to RSA 674:41. Mrs. Sears noted 3 members believe the criterion is met but 2 members do not.

  • For the following reasons, the values of the surrounding properties (would – would not) be diminished:
All members agreed that it would not diminish the surrounding properties.

5. Unnecessary Hardship
  • 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:
  • There (is –is not) a fair and substantial relationship between the general public purpose of the ordinance provision and the specific application of the provision to property because:
  • The proposed use (is- is not) a reasonable one because:
Mr. Bonser stated that there is no Unnecessary Hardship. He added that it is a private road and Mr. Leib knew it was a private road. He acknowledged that the road has emergency lane status but added that doesn’t grant any additional rights to it; including subdividing. He added that 2 lots may be acceptable.

Mr. Danais stated “is not” and believes there is hardship because the properties in the area are not required to meet this standard so therefore this property shouldn’t have to. Ms. Winona believes there is unnecessary hardship because this lot is captured 2000’ at the end of a lake sprawl and it keeps with the area and is not backland. She added that it is only adding one lot and that is reasonable. Mr. Bassett was again difficult to hear but his worksheet notes “is not” because there is no issue with safety, health and overcrowding in the area compared to other properties in the area. He added that he believes the use to be a reasonable one.

Chair Russo stated that he believes there “is” because the owner uses and benefits from the property and that this would create a hardship for the town. He added that it is not reasonable because it’s too far from a Class V road. He noted that the lots in the area created in the 1950’s were dense but the Town has since decided to change those standards because that it recognizes that was a mistake and this would perpetuate that mistake. He also noted that he would have been more in favor of a proposal of two lots but asking for the third lot is unreasonable. Mrs. Sears noted 3 members believe the criterion is met but 2 members do not.

They discussed the conditions Ms. Winona suggested earlier. They determined them and included them in their motion. During the discussion it was determined that the condition for making Cahill Lane 24’ wide did not include pavement but did mean at least up to the standards of Shore Dr and as shown on the plan.

MOTION by Mr. Danais to approve case 11-01-V2, Tax Map 68 Lot 49 for a variance to Article VI Section A.1.a with the following conditions.
        Cahill Lane be widened to 24’ in the manor as Shore Lane is constructed.
        Lots using Cahill Lane for access be permanent, granted and recorded
        One year to start the Planning Board process and starts to implement the road improves above.
SECOND by Ms. Winona
VOTE 3- Aye. 2- Opposed – 0-Abstained MOTION PASSED

Chair Russo stated that there is a 30 day appeal process. The Board passed Mrs. Sears their worksheets for this request. Mr. Bonser stated that this decision may have made for a lot more work for the ZBA in the future. Mr. Landry thanked the Board.

Review of Minutes

April 12, 2011

The Board reviewed.

MOTION by Mr. Russo to approve the minutes of April 12, 2011 as written.
SECOND by Mr. Danais
VOTE 4- Aye. 0- Opposed – 1-Abstained MOTION PASSED

MOTION by Mr. Russo to approve the minutes of May 15, 2011 as written.
SECOND by Mr. Danais
VOTE 5- Aye. 0- Opposed – 0-Abstained MOTION PASSED

MOTION by Mr. Russo to adjourn the meeting at 9:20pm.
SECOND by Mr. Bonser
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.