NOTTINGHAM ZONING BOARD OF ADJUSTMENT MINUTES
JUNE 27, 2006
PUBLIC SESSION
NOT FINAL UNTIL APPROVED BY THE BOARD
PRESENT:
Mr. Doug Leib, Chair ABSENT:
Mr. Jim Howard
Mr. John Morin
Mr. Earle Rourke
Mr. Kevin Jordan
OTHERS PRESENT:
Ms. Kelly Tivnan, ZBA Secretary
The Chair called the meeting to order at 7:05pm.
CASE 06-04 CLARK:
Mr. Leib read the notice stating that the Clarks wanted a frontage variance and a variance for a driveway in order to make a buildable lot. Mr. Chris Boldt said that he was the lawyer representing Mr. Clark. He noted that Mr. Clark was present at the hearing. He said that the Department of Transportation had granted a driveway permit for the lot in question. He officially withdrew the Clark request for a driveway variance. He said that the Clarks still needed a variance for frontage. He said that the lot needed 24 feet more frontage to be conforming. He said that the Planning Board had given permission for Mr. Clark to build his subdivision when they had approved his application in July of 2004. He said that there was no language in the minutes or on the plan that stated that building the
entire subdivision was conditioned on the lot line adjustment and there was nothing that said they could not develop the other lots until the lot line adjustment on this lot was complete. He said that left the Clarks with 3 choices. He said that they could get someone to buy the additional 24 feet, they could put 2 lots together to form one large lot or they could do what they were proposing and get a variance for the 24 feet. Mr. Leib asked whether the Bean's had been approached and asked if they wanted to buy the additional 24 feet. Mr. Boldt said that he had not approached the Bean's. He said that the goal was for this to become a buildable lot. He said that asking the Bean's to buy land would be an unreasonable request and there would be no means for revocation. Mr. Shawn Roach said that he was an abutter and he lived at 324 Stage Road. He said that he had a couple of issues. He said that he was not familiar with cisterns or
dry hydrants. He asked if they would be required with another house lot. He said that the subdivision had been approved with sprinklers. Mr. David Smith (the Chair of the Planning Board) said that the lot would need to come back in front of the Planning Board because they would need to see the final plans. Mr. Roach asked if the plan would need to go back in front of the Fire Chief. Mr. Smith said that was part of the Planning Board process. Ms. Hope Roach said that she did not see the hardship here. She said that for other than monetary reasons she did not see why the lots could not be combined. Mr. Leib explained that the Supreme Court had expanded the definition of hardship. Mr. Boldt said that Mr. Clark had expressly requested that they did not pressure the Bean's to buy land. He said that the Bosha decision allowed the ZBA to consider money as a hardship. He said that hardship meant there was no reasonably
feasible alternative for the applicant. He said that allowing this to be a buildable lot where they could put one more single family home would not change the neighborhood. Ms. Roach said that there was an alternative. She said that the applicant could combine 2 lots. Mr. Boldt said that there was no alternative which would allow the proposed use. He said that was what the court would look at. He said that what the Board thought as far as alternatives was irrelevant if what they were proposing to do was allowed. He said that single family homes were allowed and there was no basis in the regulations for denying this application. Mr. Roach said that when this subdivision had originally been approved by the Planning Board it was with the condition that the lot line adjustment would occur. Mr. Leib said that there had not been a condition. He said that the Planning Board had assumed the lot line adjustment would happen.
Mr. Bob Bean said that he was an abutter to the property. He read out loud a letter written previously by the Planning Board Secretary outlining the options for this lot. He said that this was not a buildable lot and the Clarks were trying to get permission to make it a buildable lot. Mr. Smith said that whether there was a condition would be on the original plan. Mr. Skip Seaverns (a Planning Board member) said that there had been paperwork in front of the Planning Board making the lot line adjustment a true statement. He said that the Planning Board could not help that the paperwork was never recorded. Mr. Boldt said that there was also no condition saying that the other lots were affected by the decision not to do the lot line adjustment. Mr. Howard asked what the problem would be with the ZBA granting the Clark's request for frontage. Mr. Bean said that he had been told when he moved to his property that the lot in question
was unbuildable. He said that people kept putting up houses around his property. Mr. Roach said that he had wanted to buy this property. Ms. Roach said that this was all about money for the Clarks. Mr. Leib said that the ZBA needed to decide if the application met the criteria for a variance. Mr. Roach asked why the town had a Planning Board and a Zoning Board of Adjustment if they kept accepting applications and granting variances. Mr. Leib said that the ZBA had to do their own interpretation of state law and court decisions. He said that it was easier to get a variance now than it had been in the past. He said that up until 5 years ago it had been very difficult to get a variance but that had been changed by the expanded definition of hardship. He said that there were 5 criteria the ZBA needed to look at when granting variances. Mr. Boldt said that granting this application would not be contrary to the public interest. He said that it would not affect the neighborhood.
He said that the lot was only 24ft shy of the frontage requirements. He said that it was larger than the average lot. He said that the driveway was safe in the eyes of the state. He said that the burden they needed to use to decide this was whether it met the qualifications "unduly and to a marked degree." He said that this application met the hardship requirements because the Clarks could not add footage from their own land without affecting the other lots in the subdivision, and they could not require another owner to buy more property. He said that the court took ownership "as is" when it made decisions. He said that this application was consistent with the spirit of the ordinance because the lot was larger than the minimum requirement and the adjacent lots. He said that the Clarks were trying to solve a problem. He said that they were not able to do what they wanted to do without this variance. He
said that this application met the substantial justice requirement because there was no gain to the public so a loss to the Clarks would be an injustice. He said that this would not diminish the surrounding property values because they would be building a single family home and that would be the same as the rest of the neighborhood. Mr. Jordan said that he was still concerned about the sprinklers. Mr. Leib said that he would be more comfortable if the Planning Board looked at that again. Mr. Seaverns said that the lot might require wetlands permits. Ms. Mary Bonser (Selectmen's Representative to the Planning Board) said that this lot had not been approved as a buildable lot and it needed to go back to the Planning Board.
Mr. Jordan made a motion that the Zoning Board of Adjustment approve the Clark application 06-04 with the conditions that it went back in front of the Planning Board for a review of their fire protection and buildable area and that they agree to use the lot only to build a single family home. Mr. Rourke seconded the motion. The present members of the ZBA voted unanimously in favor of the motion. The motion passed 5-0.
Mr. Leib said that abutters and members of the public had 30 days to file a notice of appeal regarding the decision.
MINUTES:
Mr. Morin made a motion that the ZBA approve the minutes from 11-15-05. Mr. Howard seconded the motion. Mr. Leib, Mr. Morin, and Mr. Howard voted in favor of the motion. Mr. Rourke and Mr. Jordan abstained from the motion. The motion passed 3-0 with 2 abstentions.
Mr. Jordan made a motion that the ZBA approve the minutes from 6-20-06. Mr. Rourke seconded the motion. The present members of the ZBA voted unanimously in favor of the motion. The motion passed 5-0.
Mr. Morin made a motion to adjourn at approximately 8:15pm. Mr. Jordan seconded the motion. The present members of the ZBA voted unanimously in favor of the motion. The motion passed 5-0.
Respectfully submitted,
Kelly Tivnan
ZBA Secretary
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