NOTTINGHAM ZONING BOARD OF ADJUSTMENT MINUTES
SEPTEMBER 19, 2006
PUBLIC SESSION
PRESENT: ABSENT:
Mr. Doug Leib, Chair Mr. Jim Crowell, Alternate
Mr. Jim Howard Mr. Kevin Bassett, Alternate
Mr. John Morin
Mr. Earle Rourke
Mr. Kevin Jordan
OTHERS PRESENT:
Ms. Traci Chauvey, ZBA Secretary
Mr. Richard Ladd
Ms. Ann Florio
Ms. Elaine Schmottlach
The Chair called the meeting to order at 7:08 PM.
CASE 06-08 - MAP 8 LOT 7-2 - FLORIO:
Mr. Leib read the notice stating that Ms. Florio wanted a special exception to Article VI Section 2 of the Nottingham Zoning Ordinance to allow construction of a garage 28’ from the west boundary where 50 feet is the allowed minimum setback. The lot in question is owned by Ms. Florio and located at 183 Mitchell Road. He confirmed with Ms. Florio that the property currently contains a single family dwelling, no garage. He stated the reason the applicant is requesting a special exception is because her property is surrounded by boulders. Ms. Florio brought pictures which the Board reviewed.
Mr. Leib inquired about the location of the leach field. Ms. Florio stated that the leach field is the whole front yard and the well is in back. Mr. Rourke asked where the closest building on the abutting lot is located. Ms. Florio indicated the house on the abutting property is approximately 750 feet back from the road, not within sight. She then submitted a signed letter from Wendy & Denis Switzer, owners of the abutting property (Map 8 Lot 7-1), in support of her application. Mr. Leib asked if any abutters were present. There was no reply. He then read the Switzer’s letter for the record.
Mr. Leib explained that to qualify for a special exception there are three criteria that must me be met: whether the goals set forth in NH RSA 674:17:I will be infringed upon; whether the terrain or configuration of the lot make it more appropriate than not for the exception to be granted; and, whether granting of the exception will adversely impact the neighboring parcels or rural character of the town. Mr. Leib the asked the Board members if all agreed that the three criteria had been met. All members confirmed.
Mr. Rouke made a motion, with the condition that the building permit was applied for within a year, to grant the special exception to Article VI Section 2, allowing Ms. Florio to build a garage 28 feet fro m the boundary. All in favor. Motioned passed 5-0.
CASE 06-09 – MAP 11 LOT 7 – BLUE FIN:
Mr. Leib read the notice stating that Mr. Ladd was requesting a variance to Article VI Section A.1 to allow use of an existing woods road located on proposed Lot 7 to provide access to both proposed Lot 7-4 and remaining proposed Lot 7. The applicant is proposing to extend the woods road and branch driveway access from the woods road to the individual lots. The lot(s) in question are owned by Blue Fin Development and located on Kennard Road.
Mr. Leib pulled the plan from the file for viewing. Mr. Ladd brought new plans and clarified for Mr. Rourke that the property is about a mile in from Smoke Street.
Mr. Ladd stated that when Blue Fin received approval last year to subdivide two lots to the north, the Planning Board requested that there be access to the remaining property. He said the Planning Board told him he would have to apply for Dredge and Fill to use the woods road as permanent access because it crosses the wetland. Mr. Ladd stated that he indicated to the Planning Board that he thought that was premature, since they were not sure that’s where access would be kept. He says that he stated to the Planning Board that the property might be subdivided and the “shared driveway” would be required at the property line. He informed the Zoning Board that the Planning Board told him that although that was normally the requirement, they could waive it. When asked who said that, Mr. Ladd replied, “The Planning Board.”
Mr. Ladd stated the Planning Board walked the property and looked at the woods road. It was agreed that this access provided the least amount of impact to the wetlands and that the applicant would apply for Dredge and Fill. It took five months, but they got it. Mr. Ladd said he was unaware, until going before the Planning Board on September 6, 2006, that he would need to apply for a variance.
Mr. Rourke clarified that it would be one driveway providing access to two lots. Mr. Ladd stated the difference to this property is that the driveway is not on the property line. The hardships, he stated, are that they would have to reapply for their wetland permit; there would be a greater impact to the wetlands if the crossing was moved; and lastly, there are grade issues at the lot line.
Mr. Rourke asked if both lots were going to be approved as a building lot. Mr. Ladd answered in the affirmative. Mr. Rourke stated that the Zoning Board has never approved a variance for a driveway that does not split both lots at the roadside. Mr. Rourke stated he would much rather see it go on the property line even if it does have to impact some more of the wetlands. Mr. Jordan asked the subdivision had been approved. Mr. Ladd stated the Planning Board could not approve it until he got a variance from the Zoning Board for the driveway. Mr. Leib asked how far the driveway goes into the first lot before branching off to the other. Mr. Ladd stated it was about 400 feet. Mr. Leib stated that a concern of the Board is having that much of the driveway going onto one owner’s land, should the
relationship between neighbors go bad. Mr. Ladd stated that even if the driveway was moved to the lot line, it would still be the same length. Mr. Rourke indicated that if it was on the property line it would be a dual driveway and be twice as wide. Mr. Ladd stated that this driveway is the same width as what would be presented if it was on the line. Mr. Rourke stated that if the driveway is on both properties, no one can control the part of the driveway on their neighbor’s property. Mr. Ladd stated there is an easement for the driveway providing for use of the whole driveway. Mr. Rourke again stated that he would rather see them go back for a new permit for crossing the wetlands and move the driveway. Mr. Leib asked him if the permit was already in place for the narrow area. Mr. Ladd replied that it had cost about $4,000 to get it in place but the Planning Board required it. He further stated that the decision to move
forward with the wetlands permit was based on the Planning Board telling him the driveway location could be waived. He did not realize until the Planning Board meeting that they would have to come before the Zoning Board. Mr. Ladd stated that they had come before the Zoning Board seeking relief, but if the Town would not give it, they would have to do it another way. Mr. Rourke stated that he was not going to approve it with the driveway on someone else’s property.
Mr. Howard stated that he felt Mr. Ladd had done what the Planning Board told him to do, including the time, effort and cost of a permit. Mr. Rourke stated that the Planning Board should not have told the applicant that and that it was a Planning Board error, not a Zoning Board error. Mr. Howard agreed but stated he felt that the applicant should not be the one to suffer for it. He does not feel the applicant should have to pay the expense for all the work that he had done. Mr. Rourke stated that it is not the job of the Zoning Board to correct Planning Board mistakes. Mr. Howard stated he felt the Zoning Board needed to look at what has taken place, what has been invested, what work the applicant has had to do so far. He further stated that he felt the applicant would not have made this investment if the
Planning Board had not told him to do it this way. Mr. Rourke said that that may be, but they told him wrong and now he was here in front of the Zoning Board looking for a variance on something they have never done.
Mr. Howard asked Mr. Ladd if the property had been sold, yet. Mr. Ladd indicated that it had not. Mr. Howard then stated that whoever bought it would buy it with the understanding that there is a driveway that goes through their property. It would then be up to them to negotiate a buying price. Mr. Rourke stated that no one knows what will happen in the future, and if these neighbor’s stop talking and one decides to put their car out in the middle of the driveway, the other won’t get out. Mr. Howard stated that could happen with the driveway on the property line. Mr. Rourke stated that if it goes down the line it would be twice as wide and no one would be able to block the drive. Mr. Howard pointed out that the currently planned driveway is double wide, the same as what would be done if
it were on the property line. Mr. Rourke stated that when someone starts parking their car on somebody else’s property, then they’re in trouble. He further stated that if it’s on the property line and one of the neighbors parked their car sideways, then they would be ok because they own that land. Mr. Howard stated that when you have an easement you have rights to that driveway and the owner would not be able to block you. Mr. Rourke stated that he felt the owner could because he owns the land. He said an easement is only to go across it. Mr. Howard stated that if the owner put a car across the driveway that would prevent the neighbor from being able to go across. Mr. Rourke stated that if the owner blocked it, he could also prevent a fire truck from getting across and the place could burn down. Mr. Howard stated he was not clear on the issue. As an example, he asked about the Fernald’s parking a grader
at the end of one of the private dirt roads around the lake that they own. He inquired as to what would happen if there was a fire and the fire truck could not get through in this instance. Mr. Rourke stated that the owner would have a case against the town and Fernald, because the town owns the grader. Mr. Howard then asked about what would happen if it were Fernald’s car blocking the road. Mr. Rourke stated the case would be against Fernald. Mr. Howard indicated that he felt the same thing would apply in this case for the owners of the property who have the easement for the driveway. Mr. Howard stated again that he felt both property owners would be purchasing the property with this knowledge. Mr. Rourke stated that if the driveway were on the property line, neither owner would block it because they would be on someone else’s property. He said that if either of them did block it, the other could call to have the vehicle
towed away or the owner arrested. Mr. Rourke stated that if the driveway is on the property line it is a dual driveway meaning two separate driveways side by side. He said they each have rights on the whole driveway but that they each also own half of it. He stated that this is why this is never done.
Ms. Schmottlach asked Mr. Leib if she could speak. Mr. Leib welcomed her comments. Ms. Schmottlach stated that if she could vote, she would side with Mr. Rourke. She stated she is against shared driveways. Ms. Schmottlach stated that there is another driveway on Kennard Road that is shared and there is hated between the neighbors. She stated that she felt one would get mad at the other for crumbling the edge of the driveway or not plowing when they said they were going to. She stated that she feels it is setting people up to have a shared driveway. She has never seen a shared driveway situation work.
Mr. Jordan inquired about the possibility of moving the lot lines so that both properties would own the driveway section and creating a little island piece to the right of the driveway so that both properties would still have the required 200 feet of frontage. Mr. Rourke stated that the frontage needs to be contiguous.
Mr. Rourke asked Mr. Ladd if there was any way he could get across the wet land to provide the other property with its own driveway. Mr. Ladd stated that he did not know, he had not applied for it. He also stated that that was the widest part of the wetlands and would have the most impact to the wetlands. Mr. Rourke stated that there was enough wetland there that he felt it didn’t make a difference as far as he was concerned.
Mr. Leib stated that he felt bad that the Planning Board misrepresented the facts of the matter. He planned to review the minutes to get to the bottom of this. Mr. Ladd stated that they indicated to him that they have done this before. Mr. Jordan asked where the comments were made. Mr. Ladd stated they were made both at the meeting and during the site walk. He stated that they all agreed that this was the best place to put the driveway.
Mr. Jordan stated that if the Board was to deny this application, the next step would be an appeal, but if Board tabled it to check back in Planning records, then they would not have to deny it tonight. Mr. Leib stated that part of the question is whether the applicant meets the criteria for a variance if there is another feasible alternative for getting across the wetland. He stated that the Board would rather see two separate driveways whenever possible. When not possible, the driveway needs to be on the property line to eliminate potential future problems. Mr. Leib stated that he does not recall the Board ever approving one that is not on the property line. He referenced another case that came before the Zoning Board requesting a driveway to cut across two lots to access the third property. The Board
denied it and when the applicant went back to the State to apply for another driveway, it was approved. Mr. Leib stated that he would like to see this application withdrawn, and have the applicant go back to see if he could get another permit for a second driveway. Mr. Rourke stated the applicant could leave the one driveway as it was and apply for a second for the other. Mr. Ladd stated that he did not feel two permits would be allowed. Mr. Rourke said that the applicant would then have to apply for one on the property line. Mr. Jordan suggested the property line be angled to join into the exiting woods road. Mr. Leib stated that he would rather see the driveway on the property line. He apologized on behalf of the Zoning Board for whatever the Planning Board did to lead the applicant astray stating that it is not the Zoning Board’s policy to approve a variance for a shared driveway not on the property line. Mr. Ladd stated that
if that was how the Board felt he would withdraw the application without prejudice and apply to the state for another permit. He informed the Board that if they were denied from the State he would be back for the same variance. Mr. Rourke stated that he would end up with a non-buildable lot because of the wetland.
Mr. Leib stated that he felt the applicant should go back to see if something different could be done with the lot lines to make it easier for the driveway. Mr. Ladd stated that to keep the required frontage, the only thing to be done is to move the driveway to the widest part of the wetlands. Mr. Ladd inquired as to how far onto the property the driveway has to be on the property line. He drew a picture for the Board showing the curb-cut at the property line, going on the property 50 feet then turning and joining the existing woods road. He stated that he felt this met with the town requirements. Mr. Rourke stated that a plan such as this would not make it too far. He asked Mr. Ladd why he would do it this way and not just split it at the 50-foot mark. Mr. Ladd indicated that he would do it this way
because of grade issues. Mr. Leib stated that the intent is not to create a loop-de-loop but to keep the driveway on both properties so that if there is a problem, each neighbor has a driveway on their property. Mr. Ladd stated that the Regulations state that the driveway has to accessing at the property line, it does not say it has to follow the property line the whole way. Mr. Rourke stated that he would need to look at Zoning and Subdivision Regulations, but he felt there would be something to prevent this from happening.
The Board looked at the plats again in reference to elevation and grade. Mr. Ladd explained how he would curb-cut at the property line then angle to the existing woods road. Mr. Jordan asked if everyone would be happy if the property line was moved. Mr. Ladd stated he didn’t know if his client would be happy and he felt that the buyer would not care one way or the other because, on the property line or not, the driveway was going to be shared. He stated that it gets written into the deed that they are both responsible for it.
Mr. Jordan suggested the lot line be brought down to the narrow crossing of wetland. Mr. Rourke stated that the applicant would then need to go before the Board for lack of frontage for one of the properties. Mr. Ladd indicated that that would leave one of the lots with only approximately only 100 feet of frontage. Mr. Rourke stated that variance for 100 feet of frontage would be a lot harder to get than 170 feet of frontage. Mr. Ladd inquired about the Town’s regulations for back lot subdivisions. Mr. Leib stated that the Regulations state there cannot be more than 400 feet of frontage. Mr. Jordan stated that the Board was trying to work with Mr. Ladd to have this plan meet the Board’s requirements. Mr. Jordan asked how the Board felt about the applicant coming before them with a
back-lot subdivision requesting variance for the more than 400 feet of frontage. Mr. Rourke stated there is a date problem because the subdivision wasn’t laid out prior to 1993. The Board would be rewriting the whole ordinance. He stated the street needs to comply with RSA 674:41.
Mr. Leib stated to Mr. Ladd that the Board was trying to work with him and that they did not want to give him another piece of bad advice. Mr. Ladd stated that the way things stand, he needs to apply for a second crossing. Mr. Rourke stated that was true. He also stated that if a second crossing was denied, Mr. Ladd could try moving the lot line, reducing the frontage on the lot containing the woods road but keeping the crossing over a narrower part of the wetland, and apply for only one crossing, then come before the Board for a variance of frontage. Mr. Rourke warned Mr. Ladd that if this was the route he ended up taking, he would need to get as much frontage as possible on the reduced frontage lot because a variance for 170 feet of frontage may pass where 100 feet of frontage may not. Mr. Ladd stated that the
bottom line is that he needs to apply for a new permit.
Mr. Howard strongly stated that he feels it is a mistake to send Mr. Ladd back to the wetlands. He stated that Mr. Ladd had already applied for a permit based on a conversation with the Planning Board, on a site walk no less. Mr. Howard stated that, personally, he would rather approve this plan than send Mr. Ladd back to apply for another permit when he already got the permit because supposedly the Town had essentially approved the plan. He further stated that this applicant has already pulled a permit, invested all the money to do what the Town recommended, and he feels it makes the Town look very bad to the State, the applicant, the property owner, etc. to now say, no the applicant cannot do this. Mr. Leib agreed. Mr. Rourke stated that each Board is guided by their own Regulations and it is not up to the
Zoning Board to take the Planning Board off the hook when they have made a mistake.
Mr. Rourke stated that the applicant is trying to take a non-buildable lot and get the Zoning Board to make it into two buildable lots. Mr. Howard said he would somewhat agree if they were talking about two 2-acre lots, but they are talking about 22 acres. He further stated what they are concerned with is overcrowding. He feels it makes the Town look irresponsible to send the applicant back for another permit. Mr. Howard made reference to the Town’s loss of privilege to issue license plate and stickers because of mistakes made on the Town’s part. He stated this is an embarrassment on the Town. He felt this is the same type of a situation. Mr. Jordan agreed asking what the best solution would be. Mr. Howard said they should grant this variance. He further stated that the Zoning
Board’s responsibility is to look at each individual application according to the Rules and Regulations. He further stated there would be no purpose for the Zoning Board if they had to go strictly by the Rules & Regulations. Mr. Rourke stated that the Board does not go strictly by what the Rules & Regulation say, but they can’t rewrite the ordinance either, that is done at a Town meeting. He stated that in this case, they would be changing their outlook enough to be rewriting the ordinance.
Mr. Jordan stated that the only way to resolve the issue of a shared driveway is to have a dual driveway on the lot line. He suggested that it would be easiest to move the lot line and apply for a variance on frontage. Mr. Howard stated that he does not want to advise the applicant to move forward in that direction if there was a possibility that the frontage variance would not be granted. Mr. Jordan agreed.
Mr. Howard suggested, depending on Regulations, the applicant pave the front of the property from where the proposed driveway, the existing woods road, is to the area the Town’s Regulation’s say the driveway needs to be. Mr. Leib stated that the Planning Board would not approve the suggested lot line.
Mr. Leib told Mr. Ladd that if he was denied on a vote tonight, his options would be to appeal the decision, do a lot line adjustment and apply for a variance on the frontage, or to move the driveway to the currently proposed lot line. He asked Mr. Ladd if he wanted to have vote taken tonight or wanted to recess the hearing until he could apply to DES. Mr. Ladd asked to have a vote taken.
Mr. Howard motioned to approve the application for a variance of Article VI Section A.1 of the Nottingham Zoning Ordinances to allow the use of an existing woods road located on proposed Lot 7 to provide access to both proposed Lot 7 and proposed Lot 7-4. Mr. Jordan seconded the motion. By vote of hands the motion was denied. Mr. Howard and Mr. Jordan affirmed. Mr. Leib, Mr. Rourke, and Mr. Morin opposed. Motion denied 2-3.
Mr. Leib thanked the members for a good debate.
MINUTES:
Mr. Rourke made a motion that the ZBA approve the minutes from June 27, 2006, as written. Mr. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
OTHER BUSINESS:
Mr. Rourke asked Ms. Chauvey to identify, by north, east, south, or west, which side of the property was being addressed by the application in the notices going forward.
Mail was distributed. Mr. Leib asked if everyone had received the notice for OEP’s October conference. Everyone stated they had. No board members present planned to attend.
Mr. Leib read a memo from Charles Brown regarding liability on site walks. Mr. Leib stated he felt it is to the advantage of the Board to have as many members on a site walk as possible.
Mr. Morin made a motion to adjourn the meeting at 8:20 PM. Mr. Jordan seconded the motion. All in favor. The motion passed 5-0.
Meeting adjourned at 8:20 PM.
Respectfully submitted,
Traci Chauvey
ZBA Secretary
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