NOTTINGHAM ZONING BOARD OF ADJUSTMENT
NOVEMBER 14, 2006
PUBLIC SESSION
PRESENT: ABSENT:
Mr. Doug Leib, Chair
Mr. Jim Howard
Mr. John Morin
Mr. Earle Rourke
Mr. Kevin Jordan
OTHERS PRESENT:
Mr. Matt Pitkin Mr. John T. Fernald, III
Ms. Katherine Fernald Mr. Jonathan Witham
Ms. Barbara Fernald Mrs. Mary Paige Witham
Mr. Joe Welch Mr. Peter Landry
Mr. David B. Fernald Ms. Mary Bonser
Mr. Jim Crowell, Planning Board Alternate
Mr. Kevin Bassett, Planning Board Alternate
The Chair called the meeting to order at 7:08 PM.
Mr Leib explained that the Board is made up of five (5) members and a vote of three in the affirmative is required for approval. He also explained that Ms. Chauvey is the recording secretary and, as such, will be recording the meeting to assist with transcription of the minutes.
CASE 06-10 APPLICATION FROM JONATHAN & MARY PAIGE WITHAM FOR A SPECIAL EXCEPTION TO ARTICLE VI, SECTION A 1 OF THE NOTTINGHAM ZONING ORDINANCE TO ALLOW FOR LESS THAN 200 FEET OF FRONTAGE. APPLICANT IS ALSO REQUESTING A VARIANCE TO ARTICLE VI, SECTION A 2 OF THE NOTTINGHAM ZONING ORDINANCE TO ALLOW A LOT LINE TO BE PLACED WITHIN 50 FEET OF AN EXISTING BUILDING. THE PROPERTY IN QUESTION IS LOCATED AT 3 LEDGE FARM ROAD (MAP 59 LOT 37) AND IS OWNED BY JONATHAN & MARY PAIGE WITHAM.: (as posted)
Mr. Leib informed those present that there was an error on the application, which resulted in an error on the published notice. He stated that the special exception being applied for was a special exception to Article VI, Section A 2 and the variance being applied for was a variance to Article VI, Section A 1, not vise versa. He stated that because the notice explained the case, legal council had advised the Board that it was acceptable for them to proceed with the hearing.
Mr. Landry spoke in representation of the Withams. He explained that the application was for both a special exception and a variance because approval of the variance to Article VI, Section A 1 (requiring 200 feet of frontage) would put the lot line within 50 feet of an existing building, requiring a special exception to Article VI, Section A 2 (requiring 50 foot setbacks).
Mr. Landry identified the property as the Butler estate, at the top of Nottingham Square and informed those present of buildings on the plat. He noted for the record that the plan being presented at this meeting was only an idea and had not been brought before any Boards. He stated that the applicant is looking at the potential of subdividing this unique piece of land and is looking at maximization of the number of lots, taking into consideration the 200 foot frontage requirement. Mr. Landry stated that the requirement for 200 feet is to prevent overcrowding of lots. At this time, he presented two other plats he had designed for this property. One was drawn with the required 200 feet of frontage going in 50 feet then cutting over to a width of 50 feet before heading back to the proposed lot. The other was
drawn with the whole lot conforming to the 200 feet.
Mr. Landry stated that the applicant could, in fact, put in the same amount of lots, conforming to the 200 feet requirement. He stated that the plan being presented was the least intrusive to the Town Square. In regards to the “dog-leg” plan, Mr. Landry stated that this type of layout would interfere with two of the buildings (a chicken coop and cottage) located on the property and also noted that the layout is very choppy. As to the third plan, he stated that a home will be constructed right on Ledge Farm Road, and the value of the original farm house will be decreased. Mr. Landry again pointed out that the same amount of lots can be created with or without the variance to Article VI, Section A 1, but that without it, a house will be build right on Ledge Farm Road. He stated that the look of the
Town Square will remain unchanged with the plan being presented.
Mr. Landry pointed out that if the variance for the 200 feet of frontage is granted, that would put the proposed lot line 26.3 feet from an existing building (the chicken coop). Mr. Landry stated that Mr. Witham will be handling all applications issues for this plan.
Mr. Leib asked who owed the lot further down Ledge Farm Road. Mr. Landry stated it was a cornfield owned by John and David Fernald. Mr. Leib then asked if the proposed driveway was already an existing road. Mr. Landry stated it is and it goes to the chicken coop. Mr. Leib asked if the area to the left of the proposed lot would stay with the original farmhouse. Mr. Landry stated it would.
Mr. Leib asked if any Board members had questions. There was no reply. He then asked if there were abutters in attendance. Dave Fernald inquired about the 200 feet of frontage on Ledge Farm Road. Mr. Landry confirmed that if the lot being proposed on Ledge Farm Road conformed to the requirement, one lot would have 200 feet of frontage and the other would have 330 feet. Dave Fernald went on to say that the Witham’s have been great neighbors. He hates to see this happen, however, he respects the Witham’s rights to their property. He hopes that the new neighbors will be as understanding about the business he runs across the street (Fernald’s Dairy Farm). Mr. Witham addressed Mr. Fernald’s comments stating that this is only a proposal. He stated he is not looking for a
windfall, just trying to look out for his kids. Mr. Witham informed those present that he would maintain control over the style of homes built in this subdivision to be sure that they meld with the existing landscape. Mr. Witham stated that one reason they want to put the house way back in on Ledge Farm road is that, like the Splaine place, it would be very unobtrusive.
Joe Welch asked if the Witham’s were planning on subdividing all five (5) lots at one time. Mr. Witham stated that he has no idea how it works. Mr. Landry stated Mr. Witham will decide that when the application for the Planning Board is complete. He went on to explain that there is a 4 year period, where if not all lots were applied for at the same time, Mr. Witham would not be able to request another subdivision for four years following. Ms. Bonser stated there is also a phasing ordinance in the Town of Nottingham. Mr. Landry stated he thought phasing was more for large lot subdivisions.
Mr. Leib asked Mr. Landry to show him the alternate lot layouts, again. Mr. Landry showed the alternate layouts, stating the first one is very choppy and the second one invites someone to build right on Ledge Farm Road. Dave Fernald noted that, if approved, the plan being presented had left enough frontage footage on Ledge Farm Road to subdivide one more lot. Mr. Witham stated he would guarantee that no other lot would be subdivided from the parent lot on Ledge Farm Road. Mr. Landry stated they would put a note on the approved plan stating there may be no more subdivision of that 9.11 acre parcel.
Ms. Bonser, speaking as one member of the Planning Board, stated that she would rather see less cutting of the Butler piece than more, from a Planning Board perspective. Looking at the different scenarios being presented, she felt approval of the variance was appropriate. She feels it is important to keep the buildings of the homestead together, which the other options would not allow.
Mr. Witham asked what would happen if, in the future, one of his children wanted to build a house and combine two of the lots. Mr. Landry informed him that a lot merger could be done. Mr. Witham went on to tell the Board that he understands everyone’s regret at seeing this happen, however, he feels land will not be readily available in Nottingham when his children are grown.
Mr. Leib asked if Board members had any more questions. Mr. Rourke stated there is no reason for a variance when the footage is present; when the applicant can meet the criteria without a variance. He stated he is opposed to the application as presented.
Mr. Leib went though the list of five (5) criteria:
1. There can be no decrease in the value of surrounding properties:
Mr. Witham stated that the styles of homes to be developed would not decrease property value. Additionally, the proposed idea preserves value better than the other two options.
Mr. Leib asked where the closest existing home to the proposed lot would be. Mr. Witham stated it was across the cornfield. Mr. Landry stated it is about 700 feet.
2. Granting the variance must not be contrary to public interest:
Mr. Witham stated that he felt granting the variance would be better to the public interest than the alternatives. It would prevent someone for building right on Ledge Farm Road.
Going back to criteria one, Mr. Howard stated that property values would not be decreased by anything being built down in back on Ledge Farm Road. As for public interest, he feels public interest is that Nottingham does not want overcrowding. Regardless of what plan the applicant moves forward with, there are still five (5) lots being created. Public interest remains the same. He stated he feels it better serves the Town to dictate that the house go down in back. This plan allows the farmhouse to somewhat stay intact.
Mr. Morin said that granting this variance opens the door to anyone with a lot of land to keep their frontage but subdivide four lots out back. Mr. Howard stated that the applicant can get all six homes in with 200 feet of frontage, they are not attempting to get additional lots. Mr. Morin said he understands that but the Board has never granted a variance this small and it opens doors for others. Mr. Howard stated that he agrees it could set a precedent, however, if the same situation arose sometime in the future, and the applicant referred back to this case, he would grant them the same variance. He feels the public interested is being maintained. Mr. Morin went on to state he is more concerned with emergency vehicles being able to get to the house.
Mr. Rourke stated that a variance is requested because a lot does not conform to the ordinance. This lot conforms. He stated the applicant is trying to get a slim lot just to get more money. Mr. Howard stated that it is the same number of lots with or without the variance, therefore, he felt it was not for financial gain. Mr. Landry stated they are asking for a variance because it is a unique piece of land, located on the square. He stated he feels to follow the Zoning Ordinance in this case, would be to disregard the character in which they were written (i.e., to maintain the rural setting of the Town). Mr. Rourke stated it does not make a difference to cut out the 200 feet on Ledge Farm Road. The lots can be created without the variance. Mr. Witham informed Mr. Rourke that this is not a
money-making proposal. It was made out of respect to the homestead. He went on to state that if money was the motivator, it would be less costly to put the house on the road than to excavate to the back. In response to setting a precedent, he stated that the Board members are the “gatekeepers” and would be responsible for approving what make sense.
3. Denial of the variance would result in unnecessary hardship to the owner because:
a. The following special conditions of the property make an area variance necessary in order to allow the development as designed:
Mr. Landry stated that approval of the variance was needed in order to maintain the current use of the property. This is a unique piece of property, which, in itself, creates a hardship. He stated that regulations create a situation, which, in the end, would be worse for the Town.
Mr. Leib asked if that was the unique setting, special condition. There was no response.
b. The same benefit cannot be achieved by some other reasonable feasible method that would not impose an undue financial burden because:
Mr. Witham stated it is unreasonable to think the same benefit could be attained if the accessory buildings were lost to the parent lot. The loss of the two buildings would be a financial hardship.
4. Granting the variance would do substantial justice because:
Mr. Leib stated the homestead would be left in a larger piece. Mr. Witham stated he feels this is a unique situation and that he felt having the approval and setting the house back would help with overcrowding on Ledge Farm Road.
Mr. Jordan stated that the applicant had good points, however, there are other alternatives available. Mr. Witham stated that, again, the other alternatives would mean loss of the two buildings to the parent lot.
Mr. Landry stated that the ordinances could be followed, however, it does not make sense in this case. Mr. Howard asked if the cottage would be on the other property if the 200 foot requirement was met. Mr. Witham stated it would. Mr. Howard noted that since it is a habitable structure, it would have to be removed from the property before another home could be built. Mr. Landry agreed.
Mr. Rourke stated that as far as the homestead is concerned, the applicant is taking ¾ of the land away from it to begin with, and he does not feel following the ordinance would make much of a difference. He stated it will be nothing more than another residential lot with the possibility of a rest home in the future. Mr. Rourke stated that the applicant has every right to divide the property if he wishes to, however, he does not have the right to ask the Town’s help in doing it. He stated again that the applicant has options available that follow zoning.
Joe Welch asked if the Board is more inclined to grant 150 feet than 30 feet. Mr. Leib stated that it is more likely the Board would grant a variance closer to 200 feet than farther. Mr. Welch asked what the widest width is that Mr. Landry can get on that lot without taking the cottage from the parent lot. Mr. Landry responded with approximately 130 feet. Mr. Howard stated that if the applicant came back with a request for 130 feet, he would be fighting the same battle because there is enough frontage to comply with zoning. Mr. Howard again stated that he feels that since the applicant is proposing a total of six (6) lots with or without the variance, he felt it was in the best interest to grant it. Mr. Leib stated that the Board needed to finish going through the five criteria.
5. The use is not contrary to the spirit of the ordinance because:
Mr. Rourke stated it is contrary to the spirit of the ordinance because the ordinance calls for 200 feet. Mr. Leib stated the Board’s interpretation of the spirit of the ordinance has been to prevent overcrowding and he felt that was a moot point since the applicant could obtain the same amount of lots by complying with zoning.
Mr. Morin asked if the homestead was registered with the historical society. He wondered whether the applicant would have problems making changes to the property (i.e., removing the cottage) if the variance was not granted. Mr. Witham replied that it is not registered and that he felt the best way to preserve the property is to approve the variance and note in the deed that there will be no more subdividing of the parent lot.
Mr. Leib asked if there were any more comment. There was no response.
Mr. Leib stated that the Board has never done anything like this before, but if the lot is going to be created regardless, he felt if makes better sense to grant the variance for less frontage.
Mr. Rourke made a motion to deny the application based on the fact that the applicant has over 400 feet of frontage. No one seconded. Mr. Rourke withdrew the motion.
Mr. Leib stated he understands Mr. Rourke’s position, however, he felt the applicant has good intent. He said he does not want to see them do something drastic or cut out 200 feet on Ledge Farm Road or set another house in that historical area. Mr. Rourke stated that he does not feel it is practical to even ask for a variance when the 400 feet is there. Mr. Howard read RSA 674:17, The Purpose of the Zoning Ordinance, for the record. He stated there would be no change to congestion in the street and that either way there would be the same number of lots. He also stated he feels the applicant is attempting to preserve the architectural land and buildings by keeping the homestead intact. Mr. Howard stated again, that he believes the spirit of the Zoning Ordinances is to prevent overcrowding, and
that it does not matter if it’s 200 feet or 30 feet of frontage, there will be the same amount of lots.
Mr. Bassett asked if anyone had considered wild life tracks through that area. Mr. Leib stated he thought there was probably some deer out there. Mr. Witham stated that there are deer all around Nottingham Square.
Mr. Howard made a motion to approve the application from Jonathan & Mary Paige Witham for a variance to Article VI, Section A 1 to allow for 30.14 feet of frontage as shown on Job #922, where 200 feet of frontage is required. The property is located at 3 Ledge Farm Road, Map 59 Lot 37 and is owned by Jonathan & Mary Paige Witham. This motion is made with the condition that the deed and plat state Tax Map 59 Lot 37 cannot be subdivided further. Mr. Jordan seconded the motion. Mr. Jordan, Mr. Leib, Mr. Morin and Mr. Howard voted in the affirmative. Mr. Rourke voted nay. Motion granted 4-1.
Mr. Rourke made a motion to approve the application for a special exception to Article VI, Section A 2 requiring 50 foot setbacks, to allow a lot line to be placed 26.3 feet from an existing building, as shown on Job #922. Mr. Howard seconded the motion. Mr. Howard, Mr. Rourke, Mr. Jordan, Mr. Morin and Mr. Howard were all in favor. Mr. Leib did not vote. Motion passed 4-0.
Mr. Leib thanked everyone for coming. Mr. Witham thanked the Board for their consideration and approval.
MINUTES:
Mr. Leib noted a typo on page 3 line 6. They’re was written as their.
Mr. Rourke made a motion to accept the minutes from September 19, 2006 with the correction. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
Mr. Rourke made a motion to adjourn the meeting. Mr. Howard seconded. All in favor. Motion passed 5-0.
Meeting adjourned 8:40 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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