ZONING BOARD OF ADJUSTMENT
December 06, 2007
The meeting was called to order at 7:00 p.m.
Roll Call: Larry Ordway, Chairman; Julie Matthews, Vice Chairman; Robert Loeffler; Peter Bealo and Clifford Clark.
Minutes of October 25, 2007
J. Matthews moved, second by C. Clark, to approve the minutes of the October 25, 2007, meeting. The vote was 5-0-0 U/A.
#07-28: A request from Dana Charest, for a special exception under Article X, all sections, to permit a home occupation, namely an office for a carpentry service business. The property is located at 9 Maple Ave, Tax Map 42, Lot 26, in the MDR district.
Dana Charest, 9 Maple Ave, was present for the application. Mr. Charest explained that he would like to have an office in his home in order for a small carpentry business. He added that the office would be used to conduct the administrated functions of the business.
The Board reviewed the criteria for the granting of a special exception with Mr. Charest, who offered the following:
- The type of business qualifies for a home occupation under §220-66
- There would be no uses that would be noxious, injurious or otherwise hazardous
- There would be no dust, fumes, noise or electrical fluctuations
- The property is owner-occupied and was purchased prior to the business being established
- The office would occupy +/-10% of the living space
- The residential character of the property will not be changed
- Some ladders will be stored on the far side of a shed on the property, where they will be screened from abutters
- There will not be a sign
- There are no additional employees for the business working on the property
- There will be no outside merchandise display
- There will be no clients/customers coming to the property and there is parking for Mr. Charest’s truck.
- There are no restrictions in the property deed
- There will be no hazardous materials stored on the property
Mr. Charest was reminded that the special exception, if granted would not be transferable, had to be renewed every three (3) years and that he was subject to periodic inspections by the Code Enforcement Officer.
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of the application.
An e-mail from Donald and Merilyn Senter, 11 Maple Ave, noting that they had no objections to the application, was read for the record.
L. Ordway asked if there was anyone speaking in opposition to the application. There was no one and the hearing was closed.
L. Ordway explained the procedures for the evening’s hearings and how applicants would be informed of the decision.
#07-29: A request from Virginia Bradley, for a variance from Article III, §220-9.1, to permit a paved driveway to be 11 feet from the property line, where 25 feet is the minimum allowed. The property is located at 117 Forrest Street, Tax Map 60, Lot 50, in the LDR district.
Virginia Bradley, 117 Forrest Street, and her son, Aaron Bradley, were present for the application.
A. Bradley explained that they would like to put a horseshoe shaped driveway at their home, which would be within 11 feet of the property line and would accommodate his elderly grandmother.
There was discussion regarding the existing conditions at the property, which included a driveway to a two-car garage. It was noted that driveway was down-slope from the home and made it difficult for the grandmother to get to the dwelling.
A. Bradley noted that the slope dropped about three (3) feet over a ten (10) foot span, adding that it was flat for about the first fifteen (15) feet from the home and then dropped about six (6) feet.
Pictures of the entrance to the home, the property line where the driveway was proposed to go and other abutting properties with a second driveway where shared with the Board. A. Bradley also drew a sketch on the board to illustrate the slope of the driveway in relation to the dwelling.
C. Clark asked if there were steps from the garage to the entrance of the home.
A. Bradley offered that there were concrete block steps.
L. Ordway noted that a second driveway could be added straight in from the street that would not require a variance.
A. Bradley replied that it would have to be graded down to the house and a horseshoe driveway would offer better visibility for exiting the property.
L. Ordway asked if the driveway was intended to be paved.
A. Bradley answered that it would.
L. Ordway questioned if the grandmother lived on the property.
A. Bradley responded that she did not.
V. Bradley added that she visited nearly every weekend and was there for holidays and other family occasions.
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of the application.
A letter from Plaistow Highway Department Supervisor, Dan Garlington, supporting the application, was read for the record.
L. Ordway asked if there was anyone speaking in opposition to the application. There was no one and the hearing was closed.
#07-30: A request from Kathleen Manning, for a special exception under Article X, all sections, to permit a home occupation, namely as spiritual readings business. The property is located 15 Chandler Ave, Tax Map 38, Lot 9, in the MDR district.
Kathleen Manning and Michael Roberts, 15 Chandler Ave, were present for the application.
K. Manning explained that she would like to have a small business in her home, by appointment, to offer “angel readings and spiritual guidance.”
P. Bealo offered that he wasn’t sure where this type of business fit into the home occupation ordinance as a permitted business.
K. Manning replied that it was a “personal service business.”
L. Ordway reminded there were a number of requirements that they had gone through with the earlier home occupation ordinance, noting that this application would have to meet the same criteria. He asked where clients of the business would be parking.
K. Manning offered that her driveway could accommodate four (4) vehicles, two (2) vehicles side-by-side and two (2) deep. She added that she had a place to set up a card table to work with her clients and that none of the neighbors would even notice when someone was there.
L. Ordway asked how many appointments there would be per day.
K. Manning replied that the majority of her business would be conducted at her client’s homes. She added that there might be 1-2 appointments per day and 1-2 in the evening in her home for private readings, reiterating that they would be by appointment only.
R. Loeffler questioned if there would be a sign.
K. Manning answered that she would like to put up a sign in accordance with the ordinance, but that it would clearly say “by appointment.”
L. Ordway asked if there were ever groups of people coming at the same time.
K. Manning replied that sometimes people would bring family members, adding that they would usually come in the same car. She noted that if it were more of a “party” then she would go to their house as her home was not set up to accommodate families or large groups.
R. Loeffler asked what the hours of operation would be.
K. Manning answered that she would start around 11:00 a.m. or 12:00 noon and would go no later than 7:00-8:00 p.m. She added that the usual days would be Monday through Thursday, though there may be an occasional Friday or Saturday, but there would be no Sundays.
C. Clark asked how long she had been in this business.
K. Manning offered that she had been doing this calling for seven (7) years and since more and more people were looking for her services she decided to “hang out a shingle.”
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of the application. There was no one. He asked if there was anyone speaking in opposition to the application.
Linda Hemmingway, 17 Chandler Ave, noted that she had no problems with someone being enterprising but that she had a number of safety concerns with locating a business in an already busy neighborhood. She added that she had teenaged drivers in her household and that added congestion is Ms. Manning’s driveway would make it more difficult for the to see to exit her property. Ms. Hemmingway explained that Chandler Ave was already a busy street and she didn’t want to see a business that would add more traffic to the area. She cited visibility concerns, due to the hills on the road, and traffic concerns. Ms. Hemmingway felt there was a need to limit the number of clients that would be allowed to use this business in the interest of the safety of the neighborhood.
K. Manning rebutted that most of her clients would be during the day, when her driveway would otherwise be empty, noting the she didn’t feel that it would be affecting any of the aesthetics of the neighborhood.
L. Ordway asked if the Board were to place a restriction that there be no customer parking on Chandler Ave, would Ms. Manning be amenable to that.
K. Manning said that wouldn’t be a problem, reiterating that there could be four (4) vehicles parked in her driveway and that her car was parked in the garage.
M. Roberts noted that there would be approximately six (6) to eight (8) feet behind from the last vehicle parked in their driveway to the road.
A letter from Elizabeth George, 12 Chandler Ave, was read for the record. Ms. George’s letter expressed the same concerns as Ms. Hemmingway about the traffic and safety of the neighborhood. The letter also requested that no sign be allowed.
K. Manning acknowledged the neighbor’s concerns regarding parking and that Chandler is a busy street. She added that her business would not be noticed by the neighbors and would be similar to having a friend over for coffee.
C. Clark asked if there were other businesses on the street.
There was a brief discussion regarding the location of a few commercial entities located at the Route 125 end of Chandler Ave.
L. Ordway asked if there was anyone else speaking in opposition. There was no one and the hearing was closed.
#07-31: A request from Philip Manro, for a variance from Article IV, §220-21.C(1) to permit an inground swimming pool to be constructed within 57 feet of the wetlands, where 75 feet is the minimum allowed. The property is located at 4 Major Lane, Tax Map 41, Lot 74-E, in the MDR district.
Philip Manro, 4 Major Lane, was present for the application. He explained that he would like to put in an “L” shaped in-ground swimming pool and in order to have the proper clearance to the septic and the leach field he would need to intrude into the wetlands buffer.
P. Bealo, noting the patio area on the side of the pool, asked if that part could be reconfigured in such a way that the pool would fit.
P. Manro offered it would be too close to the septic and leach field.
There was discussion regarding a number of different placements for the pool. Each location suggested by the Board was answered by Mr. Manro with a reason that location not permitted by other restrictions in the ordinances. The configuration of the lot and some colored pictures of the lot, submitted by the applicant, were reviewed.
R. Loeffler asked who would be installing the pool.
P. Manro answered it would be installed by the Pool Doctor.
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of the application.
An e-mail from Donald and Merilyn Senter, 11 Maple Ave, noting that they had no objections to the application, but requesting that ground water not be used to initially fill the pool, was read for the record.
P. Manro offered that it was his intention to have water delivered to fill the pool.
L. Ordway asked if there was anyone speaking in opposition to the application. There was no one and the hearing was closed.
#07-24: A request from James M. Lavelle for an appeal of the administrative decision of the building inspector to reject a septic plan as submitted. The related property reference is 9 Birch Street, Tax Map 25, Lot 1, in the MDR district. The property owners of record are Patricia G. Bennett & Arthur K. Wicks.
#07-25: A request from James M. Lavelle for a variance from Article IV, §220-24A to locate a septic within 100’ of a wetland. The property is located at 9 Birch Street, Tax Map 25, Lot 1, in the MDR district. The property owners of record are Patricia G. Bennett & Arthur K. Wicks.
James Lavelle of Lavelle Associates, and Attorney Roger Burlingame, Cleveland, Waters and Bass, P.A. were present for the application. Also present in the gallery were the property owners Patricia G. Bennett and Arthur K. Wicks and members of the Conservation Commission.
J. Lavelle gave a history of the septic system approval process for this property. He noted that there was an initial plan that had been reviewed by the Building Inspector and approved by NHDES (New Hampshire Department of Environmental Services), which had been installed but because of water table issues discovered at the time of installation, and silt getting into the wetlands as a result of torrential rains, NHDES would not approve the system. He noted there was a second plan that was drawn up, which was not approved by either the Town or NHDES. Mr. Lavelle continued that the reason that they were here this evening was because the Building Inspector refused to stamp (as reviewed by the Town) a third set of plans to be forwarded to NHDES. He noted that they had attempted to clean up the wetlands violations and get
the septic approved. Mr. Lavelle offered that the new design showed the system to be further away from the wetlands than the location in the initial plan. Mr. Lavelle offered that when the first system was being installed that he met with NHDES and the Building Inspector on the site and discussed alternant plans, plan #3, the one rejected by the Building Inspector, was the result of those discussions. He also noted that the State has a different requirement from the Town when it comes to setbacks.
J. Lavelle offered that §220-24 of the wetlands ordinance states that no new septic can be located within 100 feet of the wetlands and no replacement system can be located there unless it is approved by State and Municipal authorities. He offered that since this was a replacement system the Building Inspector should have reviewed the plans, stamped them and allowed them to continue for State approval.
L. Ordway asked if a soil scientist had been involved in mapping out the wetlands and that all were in agreement as to where the wetlands were located. It was confirmed that was true.
D. Voss, whom it should be noted for this matter is an employee of the Department of Building Safety as well as the Administrative Assistant for the Zoning Board of Adjustment, offered that it was the position of the Inspections Office that since the third plan submitted specifically called out the wetlands as “very poorly drained” and not “poorly drained” then it gave the office less discretion as to whether to require a 100 foot or 75 foot setback from the wetlands. She added that neither septic plan 1 nor septic plan 2 had that specific designation.
P. Bealo noted that as soon as the Building Inspector saw the words “very poorly drained soils” he put the breaks on.
R. Burlingame offered that he rejected it strictly for being less than 100 feet from the wetlands. He added that the initial plan was 75.4 feet from the wetlands and the new plan was 76 feet at its closest point, making the new system a little further away.
J. Lavelle offered a list of 400 septic designs that he had done for clients in Plaistow and plans for eight (8) designs that had been reviewed by the Building Inspector with systems less than 100 feet from the wetlands. He noted that in the eight designs seven most were repair systems, but one was for a new home.
There was a review of two letters that were sent by the Department of Building Safety to Mr. Lavelle regarding the septic system. One letter related to the initial septic plan (2005) and the second letter was the rejection letter associated with the most recent plan.
J. Lavelle suggested that favorable review of the first system, which was slightly closer than the system in the third plan, should have allowed the inspector to sign the septic plan and allow it to be submitted to NHDES.
P. Bealo noted that plan #2 did not show as specific detail with reference to the wetlands as plan #3 did.
There was review of the three septic plans that were submitted as evidence.
C. Clark noted there were differences in the wetlands lines on plan #3 from the other plans.
J. Lavelle explained that more wetlands mapping had been done. He noted all plans showed the septic was less than 100 feet from the wetlands.
D. Voss reiterated the difference was the delineation of the “poorly drained” and “very poorly drained” soils.
C. Clark asked if the septic was in the same location on plan #1 and plan #2.
J. Lavelle replied that they were not as plan #1 was not acceptable to the State.
C. Clark suggested that there was no way to compare them then if they were not in the same location.
There was discussion regarding the second paragraph of the ordinance regarding the placement of septic when there are wetlands to consider. Mr. Lavelle suggested that since this was a replacement system on an existing lot of record the 100 foot requirement did not apply. Staff offered it was the position of the Department of Building Safety that this was not a replacement system since the first system was never approved for operation.
J. Lavelle offered that there were ways to improve the system in its current location that would satisfy the State but he tried to improve the situation with the new design. He added that they tried to get an easement from the Town to pull the system further forward, but that was not looked upon favorably.
It was reiterated that there were three (3) designs
- #1 Submitted to the Town, reviewed and signed then submitted to NHDES, approved for construction, not approved for operation
- #2 Reviewed by Town, not submitted to the State, the applicant wanted to resolved the wetlands violations before proceeding with the septic application
- #3 Submitted to the Town and rejected by the Building Inspector for not being 100 feet away from the wetlands, with the words “very poorly drained” soils added
L. Ordway offered that it was possible to re-build plan #1 and if it failed in the future they could replace it without the same wetlands encroachment. He noted that 7 of the 8 plans submitted for evidence were replacement systems and that he didn’t see that the Building Inspector had done anything out of the ordinary.
R. Burlingame suggested that if this replacement plan (#3) had to meet the 100 foot setback then the language in the second paragraph of the ordinance regarding replacement systems was useless words.
R. Loeffler noted that since the first installed system was never approved by the State then this system should not be considered a replacement system.
R. Burlingame offered that the language that defined a wetlands district to be the wetlands and the wetlands buffer which is defined to be the first twenty-five (25) feet as a “no-disturb” area and then the second either twenty-five (25) or fifty (50), depend on the soils, as a “no structure” area for a total of no more than seventy-five (75) feet was faulty. He suggested that since the language that required a 100 distance from the wetlands only applied to systems within the wetlands district, making this system exempt since it was seventy-six (76) feet and therefore not in the wetlands district as defined.
L. Ordway noted this to be interesting logic.
R. Burlingame suggested that it was the literal reading of the ordinance and therefore the plan should be signed. If a system is proposed to be within the wetlands district then it does apply, if a system is not in the wetlands district it does not.
The discussion shifted to the request for a variance.
R. Burlingame reminded that Board that they had previously granted a variance for this property for a foundation to be within the wetlands buffer and the reasons to allow this variance were much the same, albeit not identical, as for that application. He noted that the septic was shown on that plan in its first location at the time of the application for the variance to locate the foundation.
R. Burlingame referred to the minutes of the August 31, 2006, meeting where the variance for the foundation to be located within the wetlands buffer was approved. He offered the following with reference to this application:
- There would be no diminishment of the surrounding property values, perhaps an increase by making use of the property
- There is nothing against the public interests as the wetlands will still be protested
- There is a hardship in that if the variance for the septic is not approved then they cannot make use of the property or they would have to try and do something with the old system and that wasn’t anything that anyone wanted to see happen. He added that this was the only real workable location for the septic or the lot would have to remain undeveloped.
- It would be substantial justice in allowing the property owners use of the property and residential use is the best use of the property
- There is no impact to the wetlands so there is nothing contrary to the spirit and intent of the ordinance
L. Ordway informed that the Board had received a letter from the Conservation Commission (ConCom) that was clearly against the application.
R. Burlingame noted that it was interesting to him that the ConCom letter was issued prior to the applicant meeting with them.
J. Lavelle added that when they did meet with ConCom there were only three (3) members at the meeting and they were reluctant to change the letter without more members in attendance.
R. Burlingame offered that it was ConCom’s position that they couldn’t support a septic that wasn’t 100 feet from a wetland and since the property cannot support a septic outside the 100 feet it would mean leaving the property undeveloped.
J. Matthews suggested that perhaps a smaller design could be drawn up, something like a Presby.
J. Lavelle replied that this design was one of the smallest and was the one suggested by NHDES and the Building Inspector in the field when it was discovered that there were problems with the first system. He added that the drainage that was installed was not installed by the Town, but by the applicant to collect the runoff from Birch Street. J. Lavelle also noted that changes to the grading as part of the final development of the lot would also help the drainage situation.
P. Bealo asked if any of the members of ConCom would like to comment on the seemingly faulty language of the wetlands ordinance with reference to septics.
Jill Senter, Plaistow ConCom Chair, responded that they were not prepared to make comment on the interpretation suggested by the applicant until they were able to review and discuss it. She added that it was pretty clear to ConCom that the intent of the ordinance was that the septic be 100 feet from the wetlands.
Lawrence Gil, ConCom Member, agreed that it was clear what the intention of the ordinance was and that’s why lawyers get paid to look at things and see it in a light beneficial to their client. He added that he had visited the site and it was very clear to him that the twenty-five (25) foot no-disturb buffer had been obliterated by the construction on the site. L. Gil noted that there were steep slopes and a small amount of uplands. He suggested that what was proposed for the site pushed the limits.
R. Burlingame recalled that ConCom was not opposed to the variance application for the foundation that was granted more than a year ago as long as the twenty-five (25) no-disturb buffer was not imposed upon. He added there was also a battle involved in getting the site approved for a duplex and he was stunned when he found out that the septic was denied, particularly since it had been noted on every plan that was reviewed by all Town boards.
L. Ordway suggested there was a difference between a solid foundation and a septic system.
R. Burlingame responded that it just seemed strange to him that no one raised the issue except for the initial letter from the Building Inspector. He continued that ConCom had looked at it before with the foundation but now wanted to reject it with the septic and take the lot away from the owners and that didn’t seem fair.
J. Senter noted that they had come to the ConCom initially with the solid foundation and just for the foundation, not for the septic plan or they would have addressed it at the same time. She added that it came back to their attention when there was a request for an easement from the town for the septic.
L. Ordway asked if there was anyone else wishing to make comment. There was no one and the matter was closed.
DELIBERATIONS
#07-28: A request from Dana Charest, for a special exception under Article X, all sections, to permit a home occupation, namely an office for a carpentry service business. The property is located at 9 Maple Ave, Tax Map 42, Lot 26, in the MDR district.
R. Loeffler moved, second by P. Bealo, to grant the application for a home occupation for a carpentry business at 9 Maple Ave.
J. Matthews offered that it was a classic application.
R. Loeffler added that there would be no customers on the property, no additional employees and no equipment on the site.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#07-29: A request from Virginia Bradley, for a variance from Article III, §220-9.1, to permit a paved driveway to be 11 feet from the property line, where 25 feet is the minimum allowed. The property is located at 117 Forrest Street, Tax Map 60, Lot 50, in the LDR district.
P. Bealo moved, second by C. Clark, to grant the application for a variance to permit a paved driveway within 11 feet of the property line.
L. Ordway recapped the evidence present by the applicant noting that the intention was to make it easier for an elderly relative to access the property and there was a hardship in the land in that there is a slope that makes it difficult for the relative to access the home from the existing driveway.
R. Loeffler noted that the hardship that was listed in the application was a convenience issue, not the slope.
The Board reviewed the application, using the criteria for the granting of a variance, with the following results:
- There would be no decrease in the surrounding property values, as there are other properties in the neighborhood who had more than one curb cut
- The public interest is in that there not be too many curb cuts to close to eat other and safety would be affected. There would be increased safety with this driveway in that it would allow those exiting the parcel to drive out instead of back out.
- There is a hardship in the land in that it is sloped in such a way as to make access difficult
- There is not lose to the general public by granting this application, therefore there is substantial justice
- It is not contrary to the spirit and intent of the ordinance, which is to provide for separation between driveways and other structures. It was noted in the pictures that there would still be adequate separation.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#07-30: A request from Kathleen Manning, for a special exception under Article X, all sections, to permit a home occupation, namely as spiritual readings business. The property is located 15 Chandler Ave, Tax Map 38, Lot 9, in the MDR district.
C. Clark moved, second by J. Matthews, to grant the application for a home occupation for a spiritual readings business at 15 Chandler Ave.
L. Ordway recapped the evidence present for the application noting that it was a classic application except for the concerned expressed by the neighbors regarding traffic and customer parking. He noted that concern was expressed from the mother of teen-aged drivers who lived next door and their ability to be able to see beyond vehicles parked in the applicant’s driveway. L. Ordway noted that there was reported to be 6-8 feet of clearance at the end of the driveway, which he offered may be cutting it close.
P. Bealo suggested that wasn’t the fault of the applicant.
J. Matthews agreed that anyone could have teenagers or kids on their property and have trouble seeing out of their driveway it wasn’t a reason to place restrictions on the neighbors.
P. Bealo suggested that the abutters would be better served addressing their concerns about traffic on Chandler Ave to the Board of Selectmen (BOS) who have jurisdiction over the roads.
There was discussion regarding placing limitations on the number of business-related vehicles that could be on the property. It was noted that the ordinance requires that all business related parking must be off-street.
C. Clark amended his motion, second by J. Matthews, to grant the application for a home occupation for a spiritual readings business at 15 Chandler Ave with the condition that there be no more than two (2) customer vehicles on the property at any time.
R. Loeffler asked who would be charged with enforcement of the number of vehicles.
L. Ordway answered that it would give the code enforcement officer more leverage if there are abutter complaints regarding business-related parking.
There was no further discussion on the motion. The voted was 5-0-0 U/A.
#07-31: A request from Philip Manro, for a variance from Article IV, §220-21.C(1) to permit an inground swimming pool to be constructed within 57 feet of the wetlands, where 75 feet is the minimum allowed. The property is located at 4 Major Lane, Tax Map 41, Lot 74-E, in the MDR district.
C. Clark amended his motion, second by J. Matthews, to grant the application for a variance to allow an in-ground pool to be constructed within the wetlands buffer.
L. Ordway recapped the application noting that evidence was presented that this was the only location on the property where a pool can be placed without intruding on the septic system and leach field. He further noted that review of lot showed that it is “more curves and corners” and there were no other feasible location for the pool with the exception of the front yard, where pools are not permitted.
The Board reviewed the criteria for the granting of a variance with the following findings:
- There would be no decrease to the surrounding property values. A pool will not increase the property value significantly but it shouldn’t decrease it either
- It is not contrary to the public interest in that a pool is not a something the public is interested in
- There is a hardship in the land that prevents there from being a pool located on the property without encroaching on the septic or leach field
- There is no detriment to the public that would outweigh the loss to the applicant not being able to utilize his property
- A swimming pool is not likely to adversely affect the wetlands therefore there is nothing contrary to the spirit and intent of the ordinance.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#07-24: A request from James M. Lavelle for an appeal of the administrative decision of the building inspector to reject a septic plan as submitted. The related property reference is 9 Birch Street, Tax Map 25, Lot 1, in the MDR district. The property owners of record are Patricia G. Bennett & Arthur K. Wicks.
R. Loeffler moved, second by L. Ordway, to grant the appeal of the administrative decision of the Building Inspector’s rejection of a septic plan for 9 Birch Street.
L. Ordway recapped the evidence submitted noting that there were three (3) plans submitted to the Building Inspector, the first one being installed and rejected by NHDES, the second one not being sent to NHDES and the third one rejected by the Town. He continued that evidence was presented that stated that septic plans #2 and #3 were improvements over plan #1 technically speaking and that there had been improvements made to the drainage as well. L. Ordway added that there had been a question raised regarding the literal wording of the ordinance and a change in some of the wording on the plan. He noted that when the Building Inspector saw that change in the wording he made the right decision, based on how he understood the ordinance, to refuse to sign the plan.
R. Loeffler added that he (the Building Inspector) rejected it because it was not 100 feet away from the wetlands.
P. Bealo noted there was a conflict in the way the zoning reads. He added that the way the logic was pointed out by the attorney made him believe that the Building Inspector should have signed the plans.
L. Ordway offered that they couldn’t get into the Building Inspector’s mind, but with his understanding of the intent of the ordinance there was no reason to not rely on the 100 foot setback.
C. Clark expressed concern over the changes in the measurements of the distance to the wetlands across the three septic plans.
R. Loeffler noted that it was stated that was based on remapping of the wetlands.
C. Clark offered that it went from 75.4 in some places to 84.3, which he felt was a large difference. He questioned if the change came as a result of some of the wetlands violations that were talked about.
L. Ordway suggested that the question wasn’t relevant since they still didn’t have the 100 feet from the wetlands.
There was discussion regarding Mr. Burlingame’s interpretation of the wetlands district definition.
P. Bealo offered that the way the wetlands district was define to be as much as seventy-five feet left a no-man’s land for the last twenty-five feet and there was no way to enforce a system being 100 feet from the wetlands with the current wording of the ordinance.
L. Ordway said that he agreed that there was an issue with the wording of the ordinance, which he felt was the furthest thing from the mind of the Building Inspector. He added that he felt the plan was refused for the being “very poorly drained” versus “poorly drained” soils. L. Ordway said that the Building Inspector’s process was logical and he didn’t think there was an error is his judgment.
P. Bealo said that the error was in not seeing the problem with the ordinance wording.
There was additional discussion of the literal wording of the ordinance that defined the wetlands district.
The vote to grant the appeal of the administrative decision of the Building Inspector’s rejection of the septic plan for 9 Birch Street was 3-2-0 (Ordway and Matthews dissenting) and the motion carried.
#07-25: A request from James M. Lavelle for a variance from Article IV, §220-24A to locate a septic within 100’ of a wetland. The property is located at 9 Birch Street, Tax Map 25, Lot 1, in the MDR district. The property owners of record are Patricia G. Bennett & Arthur K. Wicks.
There was some discussion as to whether or not the previous vote to grant the administrative appeal made the vote on a variance a moot point and what would be the outcome if the application is denied. It was decided that since there was an application before the Board they would and since there could potentially be a request to re-hear the previous decision the Board would make a determination on the variance request.
R. Loeffler moved, second by L. Ordway, to grant the request for a variance to permit a septic system be installed less than 100 feet from the wetlands at 9 Birch Street.
L. Ordway recapped the evidence presented noting that the applicant’s attorney had stated that the reason’s for granting the variance for the septic in the wetlands buffer were much the same as for the foundation that was previously granted for this property.
P. Bealo noted that the Town could not take away the use of the land.
J. Matthews offered that there should be another type of septic system that could be installed that would work. She suggested that the Board take a site walk.
L. Ordway said that with all the snow that was out there at this time there would be no real way to see anything significant.
The Board reviewed the criteria for the granting of a variance making the following findings:
- There would be would be no decrease in the surrounding property values if the system is properly installed.
The suggestion was made that if there was a failure in the system there could be a potential impact to the wetlands. It was offered that the potential of a severe-enough breakout going undetected long enough to adversely affect the wetlands was remote. It was also noted that if the system failed and could not be adequately repaired or replaced then no one would be able to live on the property anyway.
- This application was not contrary to the public interest since there was no evidence that a properly-functioning system has an impact to the wetlands.
It was noted that the system would still have to receive NHDES approval to operate. It was additionally noted that the State has a list of criteria and the town has a more restrictive list. There was further discussion regarding the contradictions in the way the current ordinance is written with reference to the definition of the wetlands district. Members acknowledge that there was the intent to prohibit new septic systems from being within 100 feet of a wetland area, but unfortunately the literal wording of the ordinance did not convey that intent adequately. It was also noted that there was a big difference in what impact there would be to a wetland area if a septic system failed versus a foundation in the wetlands. The significance of this being a pre-existing lot was also noted. It was offered that
the public had an interest in the proper maintenance of the wetlands in Town but there had not been proof that a properly-functioning septic system has an adverse affect on the wetlands. It was offered that if NHDES approves the permit then it should be considered a viable system.
- There is a hardship in that without the septic system the property cannot be used.
P. Bealo noted that Mr. Lavelle did offer that septic plan #3 was developed based upon recommendations from NHDES.
J. Matthews reiterated that she felt there were other systems out there that would be workable. She expressed concern that a system failure could seriously adversely impact the wetlands, particularly with the slopes.
C. Clark offered that it could also happen on flat land.
- There would be no loss to the general public
C. Clark reminded that Mr. Lavelle had said that there would be some regarding done to the parcel that would improve water flow and to make things better overall.
P. Bealo offered that he discounted that thought since there was no signed plan.
- It is the spirit and intent of the ordinance that the wetlands be maintained cleanly and it is clear that the intent of the ordinance was to maintain a distance of 100 feet from the wetlands despite the fact that the wording isn’t clear to that point.
J. Matthews offered that she kept coming back to the point that there was proposed to be a 100 foot wetland set for a good reason, even if it’s written wrong. She added that she wasn’t looking to argue the point but she saw a big difference in varying for a foundation versus a septic system.
L. Ordway agreed noting that the septic being 75 feet and not 100 was like saying that it was 75% protected and he didn’t know where the line was for adequate protection.
There was additional discussion as to whether or not a yes vote on this was a contradiction of the one before. It was noted that the previous decision was not whether or not it was right to have a septic within 100 feet of the wetland but whether or not the Building Inspector should have signed the submitted septic plan.
J. Matthews reiterated that she could see where the ordinance was incorrectly written to insure that there was a 100 foot septic set back from the wetlands, but the intent was clear and she believed there was a good reason for it.
P. Bealo offered that it should have been clearer in the ordinance and that it wasn’t proper to come in later and say but we meant to say…
There was discussion related to the previously granted variance for the foundation and whether or not the Board should have noted that there was a septic located on the plan as part of that application. It was also noted that the foundation was already built as a building permit was issued based upon NHDES approval of the first septic plan.
There was no additional discussion on the motion. It was reiterated that the motion was to grant the variance relief. The vote was 2-3-0 (Ordway, Matthews and Bealo dissenting).
The chairman adjourned the meeting at 10:19 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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