Town of Plaistow Archive - ZBA Minutes 12-02-10

ZBA Minutes 12-02-10

ZONING BOARD OF ADJUSTMENT

December 2, 2010

The meeting was called to order at 7:04 p.m.

Roll Call: Present were Larry Ordway, Chairman; Julie Matthews, Vice Chairman; Roderick Cole and Joyce Ingerson, Alternate. Excused were Robert Loeffler, Paul Boniface and Kim Crapo, Alternate. Absent was James Allen, Alternate.

The Board observed a moment of silence for Ruth Jenne, BOS Executive Secretary.

J. Ingerson was appointed a voting member for the meeting.

Minutes of October 28, 2010

J. Matthews motioned, second by L. Ordway, to accept the minutes of the October 28, 2010 meeting. There was no discussion on the motion and the vote was 2-0-2; R. Cole and J. Ingerson abstained.

L. Ordway explained to the Public that because there were only four members of the Board present, anyone wishing to post-pone their case was welcome too. He added that if the case is heard and the Board has a split vote (2/2) the case loses, adding that they have the right to wait until there are five Board members sitting because three members need to vote yes in order for a motion to pass.

# 10-18: A request from Ronald Brown Investments/Sweet Hill Investments, LLC for an appeal of the administrative decision not to hear an application for workforce housing, made by the Plaistow Planning on October 8, 2010. The referenced properties are located at 62/64 Sweet Hill Road, Tax Map 62, Lots 40 and 41-1 through 41-15, in the MDR & LDR Districts. The applicant is the property owner of record.

Present is Ron Brown, principle of Ron Brown Investments, and his attorney, Thomas MacMillan., 145 So. Main Street Bradford, MA.

L. Ordway asked if they wished to be heard with only four (Board Members).

Atty. MacMillan responded yes, they were willing to proceed with the Board as is compromised.

Atty. MacMillan approach L. Ordway to hand him a packet (the appeal) and noted that he was sure they had all had a chance to read the appeal. He stated they are not looking for the Board to make a decision on what criteria will be used as to what qualifies for Workforce Housing, but that they are looking for this Board to send this case back to the Planning Board (PB) so they can have their hearing, adding that they did not have a hearing in the first instance and that this is their primary complaint. He explained that R. Brown was denied his Due Process Rights. Atty. MacMillan noted that they believe the calculations used by the PB, and maintaining that it complied with the Workforce housing Statute, were not correct, but added that they would not battle that issue tonight. He reiterated that they are looking for the opportunity to have the PB sit and look at the Design Review Application and then they can discuss with the PB as to what they contend are the calculations that say the Town of Plaistow complies with the Workforce Housing Law, 674:60, as opposed to the information they have that was done by the Rockingham Planning Commission (RPC), noting that he gave L. Ordway the full report. He added that the report indicates that 169 units are required over the next couple for years in order for the Town of Plaistow to comply with the statute.

L. Ordway asked if the PB notified them with a reason as to why they did not hear the case.

Atty. MacMillan responded that they received a letter dated Oct 8, 2010 from the PB that indicated that they would not hear it based on the Town’s study, conducted in accordance with the Statute, that they already complied with the Workforce Housing requirements, noting that they did not attach a copy but that he obtained one from L. Komornick (exhibit #3 on the appeal). Atty. MacMillan wanted to point out that this was a Design Review Application, not a final application, which would have allowed the PB to give Mr. Brown some feedback, but that he was not allowed to attend that first meeting and have any discussion with respect to his Design Review Application. He noted that the numbers differ from the Town’s study and what they (R. Brown) relied on to determine workforce housing needs, (exhibit #4 on the appeal) the RPC’s report, Regional Housing Needs Assessment, October 31, 2008, table #10, that showed a future need for Workforce housing, adding that the statute also deals with future need and not just current need. Atty. MacMillan again stated that they never got the opportunity to address the PB on it.

There were no questions from the Board and no one to speak in favor of the petition.

Present to speak in opposition of the petition were Peter Bealo, 2 Sweet Hill Road, and Tim Moore, Chairman of the Planning Board.

T. Moore stated that they want to present to the ZBA the information and calculations that support their (PB) decision that they do not need Workforce Housing. He added that the RSA offers a couple of options and they feel they are set on both of those. T. Moore explained that P. Bealo had done most of the work and calculations and that he has a power point presentation to show them that will explain both their position and why the Board did not hear the application.

Peter Bealo, Vice chairman; Plaistow Planning Board, gave a slide show presentation (available upon request at the Town Planner’s office) on Plaistow’s Work Force Housing to the Board that included, but was not limited to, the following information:

The History of Workforce Housing, including Plaistow’s workforce housing history.
Plaistow’s existing workforce housing – 2008
RPC’s requirements vs. existing workforce housing in Plaistow – October 2008
Plaistow’s results – 2008
Comparing housing in 2008 and 2010

Plaistow’s existing workforce housing – 2010

2009 – 2010 affect on workforce housing in Plaistow.

RPC’s requirements vs. existing workforce housing in Plaistow – October 2010

2010 analysis conclusion

P. Bealo was asked the following questions during his presentation:

J. Ingerson asked P. Bealo to tell what HMFA is, and asked if it is based on the Massachusetts Housing Authority.

Atty. Donais, Counsel for the PB, answered Hud Metropolitan Fair Market Rent Area.

P. Bealo added Massachusetts and a number of New Hampshire Town’s, including Salem, Newton and Atkinson. He said they are part of that region, it is federally defined, and that is the median income they need to use, which in 2008 was $80,667.

J. Ingerson asked why they are using 2008.

P. Bealo responded that it started in 2008 and explained that they will fast forward to today (2010). He noted that he believes the applicant is also using 2008.

L. Ordway asked Mr. Brown if he was using 2008 figures.

Atty. MacMillan replied yes, October 31, 2008, but that it projects out to 2015. He reiterated that although the presentation is good, they still did not give R. Brown the time of day, adding that if they had spent the same amount of time at the time Mr. Brown had requested it, they all might not be here today.

L. Ordway asked P. Bealo if he will project out.

P. Bealo answered that he will project to 2010, but noted that once they see those numbers they will understand why they did not project further.

Atty. MacMillan responded that this is a problem, because the Law reads that it is not just the reasonable needs of today, but also the reasonable needs projected out, which is why the RPC put together the document saying they needed the169 units.

P. Bealo explained that in the RPC report where they show the numbers required, it shows a different number of dwellings units in 2008 vs. 2015. He explained the calculations and added that their number increases by 17 units per year and stated that he will show the Board how many years the Town’s current stock will last them at that rate.

P. Bealo continued on with the presentation.

L. Ordway asked what percentage was below the green line (on the chart labeled 2008 Plaistow Existing Workforce Housing, pg. 5).

P. Bealo answered 64% is below (to the left) the green line and 76% to the left of the red line.

L. Ordway clarified that 17 units was the expected growth in workforce housing, and P. Bealo replied yes, every year. L. Ordway asked what number the projected needed units will be added to.

P. Bealo pointed to 289.

He continued on with the presentation, arriving at the 2010 calculations. He added that these calculations do not take into consideration the 300 or so pure rental units in Town as he does not know what they rent for and if they are affordable.

L. Ordway asked why they are now looking at 3.5 % and 5% down now.

P. Bealo responded that one could argue that 10% and 20 % were unreasonable so they looked at these calculations as well.

J. Matthews added that they need to consider interest rates as not everyone will pay one rate.

P. Bealo agreed and said that they offer a variety, and added that in all cases the Town has 700 or more in excess units than what the RSA’s required. In conclusion, P. Bealo stated that Plaistow has no need to develop additional workforce housing at this time and may not need to do so for over 60 years based on this 17 unit growth per year.

L. Ordway asked if it was safe to assume that the same percentages apply to the 300 rental units as to owner occupied developments.

P. Bealo responded that he would assume it is safe, but feels only comfortable presenting known numerical facts instead of suppositions and in this case the facts are sufficiently obvious enough that he does not need to go to suppositions.

P. Bealo concluded the presentation stating that based on the Town’s ability to provide far more than sufficient affordable housing, they feel the Board should deny R. Brown’s appeal, noting that they do not have affordable workforce housing zoning or a category for it so they could not hear it.

Atty. MacMillan reiterated that the presentation was good, but that again the PB never hear Mr. Brown’s application in the first place and gave this same presentation.

L. Ordway asked what makes them think the PB has to hear the application in the first place.

Atty. MacMillan responded due process, adding that it is under both the Federal and State Constitutions, and that he was denied that due process by not having the hearing on it.

L. Ordway replied that this is why they are before the Board tonight.

Atty. MacMillan agreed and said that they will not argue the presentation tonight, and added that they were not given these figures and that they are different.

L. Ordway offered a copy to Atty. Macmillan for future reference.

Atty. MacMillan agreed to take it, but stated that when they denied R. Brown the opportunity to have the Design Review, they (the PB) said it was based on a 2010 study that is not the same figures or presentation that they made today. He also pointed out that this (P. Bealo) is a PB member, and asked if he is here today as an individual representing the PB.

P. Bealo replied that he is a PB member.

L. Ordway responded that he does not feel that makes any difference. He said that Mr. Bealo is the author of the study and the Town’s expert in the workforce housing area and that they need to accept that as fact.

Atty. MacMillan replied that he does not accept him as an expert, but said what he does accept in respect to these figures is that there is a conflict between RPC’s and P. Bealo’s (figures), and added that it will get resolved whether in front of the PB, the ZBA or the Superior Court at some point, but that now they are at a disadvantage as this is the first time this information has been shared. Atty. MacMillan stated that the bottom line is he (R. Brown) is entitled to a hearing.

L. Ordway asked if there was any one else to speak in opposition to R. Brown’s petition.

Cort Dixon, 24 Shady Lane, stated he had wondered about the definition of it.

P. Bealo replied that the state of NH passed a law saying each town needs a sufficient amount of workforce housing, but didn’t give the numbers to go by saying that each town needs to rely on their Regional Planning Commission. He added that they rely on the RPC to tell them how much workforce housing they need.

C. Dixon asked if this was for building new homes.

P. Bealo responded existing houses and new homes, but added that they left the calculations up to the individual Towns, going on to explain further.

Jim Unger, 141 Main Street, questioned why this property was different, needing a special hearing, than another property that wants to subdivide and is allowed to when meeting the regulations.

J. Matthews replied that they are asking the Board to decide if they should be heard by the PB, not to decide whether he can go ahead with his plan. She stated that all building needs to go through the PB first, but that they did not hear this case and that is why he is asking them (ZBA) to grant his appeal.

Attorney Craig Donais, Counsel for PB, was present to speak in opposition to the appeal and wanted to address a few issues. He said that the initial study done by the Town in 2008 was done by the PB proactively prior to the receipt of the RPC’s numbers. After the numbers from the RPC came out the PB took those numbers and verified its own data, and he added, that the original study was approved by the Town of Plaistow’s PB. The key thing he pointed out on the study (Regional Housing Report), table 10, is that in 2006 the required number was1353 and in 2015 the required number was 1522 units.

J. Matthews asked how many units the Town has now.

Atty. Donais replied that he believes the number P. Bealo put up are well in excess of that on every scenario evaluated; by the Town’s study both prior to and after the RPC numbers, their 2010 update with the RPC numbers, and the consideration of the new housing finance authority mortgages. He reiterated that there is no scenario P. Bealo presented that suggests any number less than 1522 units, the required minimum workforce housing units in Town in 2015.

L. Ordway wanted to clarify that the PB does not see a need for workforce housing ordinance, and in order to hear this case the PB would have to write an ordinance for something that was not required because there is an excess number of workforce units in Town.

Atty. Donais replied correct, stating that under §674:59, the Workforce Housing Statute, the Town has a number for different ways to comply with the requirements of Workforce Housing. He explained a few of these to the Board and then told them of one option under §674:59, municipalities existing housing stock shall be taken into consideration in determining its compliance with this section, if the municipalities existing housing stock is sufficient to accommodate its fair share of current and reasonably foreseeable need for such housing, the municipality shall be deemed in compliance with this subdivision and another statute. Atty. Donias noted that the purpose of the 2008 study, based on inputs the Town received prior to the receipt of the Regional Housing Needs Assessment from the RPC in October, 2008, shows that the Town complies with the regional housing need the RPC has established.

L. Ordway asked if the RPC has seen this study, and if they have voiced an opinion.

P. Bealo replied that the RPC has not seen their latest study. He added that he feels this is something they should do every couple of years because of housing changes. He explained that when they first did it back in 2008, before RPC’s document, they ran it by Cliff Sennott, from RPC, and Wayne, RPC’s affordable workforce housing expert, and they verbally told them that the methodology was fine and asked for a sanitized copy of it for their use with other Towns, which P. Bealo felt validated their work.

L. Ordway agreed that they (RPC) should receive a copy of the full study.

Atty. Donais noted that the PB believes it is appropriate to review and update on a periodic basis, which is not required, they are being proactive. He added that at the time the application was received in October of this year, the 2008 were the numbers that were outstanding and viable.

Atty. MacMillan stated that our system of justice is predicated on the opportunity for everyone to be heard and that is why our forefathers decided to address the issue of due process, and that without it we have anarchy. He added that the PB made a decision based on evidence that they have not shared with anyone, not the RPC or R. Brown, pointing out that that is the purpose of a hearing, so that both sides have the opportunity to be heard and then the decisions can be made. He elaborated more, stating that they are just looking for due process.

With no more questions from the Board or the audience the case was closed.

#10-19: A request from Jeff Lightizer for a variance from Article IV, §220-21, to permit deck to be constructed within 55 feet of a wetland, where 75 feet is the minimum buffer requirement. The property is located at 30 West Pine Street, Tax Map 38, Lot 57 MDR District. The applicant is the property owner of record.

Jeff Lightizer, 30 West Pine Street, was present for the petition and handed a packet to the Board. He explained that he is seeking a variance to build a deck on his property, adding that were he is proposing to build the deck is about 55 feet from a small brook that runs through his property. J. Lightizer goes through the packet noting the following:

His real estate bill indicating he owns .46 acres of land
A small drawing of his property, pointing out the proposed deck, house, and barn.
Pictures of his home and yard, including the brook.

J. Lightizer explains that his house was built in 1918, and he and his wife purchased it in 1988 and have resided there since. He noted that the proposed deck location is towards the back of the property and that it meets the required setback of 35 feet from West Pine Street, and 15 feet from his abutter to the right. He stated that his barn is setback anywhere from 8 to 12 feet from the brook depending on where you measure from.

Pictures of the proposed deck, stating it would be approximately14 x 20 feet.
Septic system plan, installed in 1977.

J. Lightizer explained that the proposed deck would go over a part of the septic system, over the tank and part of both leach fields. He added that he is proposing to put in a floating deck system that will do as little disturbing of the soil as possible.

L. Ordway asked if it sits on the surface with no digging,

J. Lightizer replied correct. He added that he had considered a patio, but that it required digging and drainage and also would not meet the 75 feet setback. He noted that the septic system had to be approved as it was within 45 feet of the 75 foot setback required. J. Lightizer summarized saying that his lot is quite small and that there is nowhere on his property that he could locate the deck and meet all the requirements. He is asking for a variance to move the 75 feet setback to 55 feet for the proposed deck. He added that the barn and septic system are much closer than the deck. He just wants better use of his property.

L. Ordway asked if there was anyone to speak in favor of J. Lightizer's petition.

Rebecca Lightizer, 30 West Pine Street, was present to speak in favor of the petition. She noted that the brook is dry, that there are no fish.

There was no one to speak in opposition of the petition and the case was closed.

#10-20: A request Cort & Barbara Dixon for a special exception under Article VIII, all sections, to permit an In-law apartment. The property is located at 24 Shady Lane, Tax Map 31, Lot 57, in the MDR District. The applicants are the property owners of record.

Present for the petition is Cort and Barbara Dixon, 24 Shady Lane. C. Dixon explained that they are looking to get their in-law apartment permitted for their daughter to move in. He explained that when they bought the house in 2003 it was already a legal in-law apartment. He added that they meet all the criteria.

L. Ordway asked how many years the in-law apartment has been there.

C. Dixon replied maybe 15 years, adding he’s been there since 2003 and it was there before.

The Board reviewed the requirements for the granting of an in-law apartment special exception noting the following:

The dwelling is a single family home
The apartment is between 4oo to 800 square feet
The home is owner occupied and has been for more than one year
There will be only one bedroom in the apartment
One person, their daughter, shall be living in the apartment

L. Ordway noted that they cannot make the In-Law apartment into a condominium or any form of separate ownership.

L. Ordway noted that proof of septic requirements and a floor plan are not needed as the in-law apartment has been there for 15 years.

They will be using the existing utility meters
The in-law apartment has its own driveway.

L. Ordway explained that if it is turned into a rental unit, with anyone other than a family member living there, they will need to come back to the board for a certificate of occupancy in the new tenant’s name.

L. Ordway asked if there were any more questions from the Board, there were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the case was closed.

#10-21: A request Creative Industries dba Natural Designs (Suzanne Sampson) for a special exception under Article III, §220-8 to permit the expansion of a non-conforming commercial lot. The property is located at 5 Elm Street, Tax Map 41, Lot 89, in the CII/VD District. The property owners of record are Todd & Kathleen McKechnie.

#10-22: A request Creative Industries dba Natural Designs (Suzanne Sampson) for variance from Article V, §220-32I to install a cooler within 9 feet of a property line where 50 feet is the minimum required. The property is located at 5 Elm Street, Tax Map 41, Lot 89, in the CII/VD District. The property owners of record are Todd & Kathleen McKechnie.

#10-23: A request Creative Industries dba Natural Designs (Suzanne Sampson) for variance from Article V, §220-32I install a cooler within 5 feet of a property line where 50 feet is the minimum required. The property is located at 5 Elm Street, Tax Map 41, Lot 89, in the CII/VD District. The property owners of record are Todd & Kathleen McKechnie.

It is stated for the record that there is a letter of authorization from the property owner.

L. Ordway noted that if the special exception is granted, the Board will go ahead and hear the other two requests.

Present for the petition is Suzanne Sampson, owner of Creative Industries dba Natural Designs, and Gary Borrack. S. Sampson explained that she has a flower shop, and that she proposes to put an 8 x 8 cooler on the outside of the building because she only has 400 square feet and the cooler will take up to much space inside.

L. Ordway asked where on the property they are proposing to place the cooler.

S. Sampson replied against the back wall, not visible from the street.

L. Ordway asked what the cooler will sit on.

G. Borrack explained the following:

Cooler will sit on a wooden platform
Have no windows
No access from outside, has a door in back that will be locked off and not used.
Front will be attached to the building with access from inside only, be on wooden deck with concrete pilings, and be capped off to be weather tight.
Weights about 1,000 lbs., and cannot be easily moved
Uses minimal electricity

S. Sampson explained that the reason for the cooler is refrigeration for her flowers, so she can have a back-up supply instead of buying day to day.

G. Borrack noted that they need the variance because it is a small property. He apologized to the Board for not having pictures and explained the location of the cooler to the house.

Todd McKechnie, owner of the property, was present to speak in favor of the petition.

Jim Unger, 141 Main Street, was present to ask a few questions. He asked the applicant what type of compressor they will use to run the cooler.

G. Borrack replied that it was a small compressor, less than one used for the refrigeration of the air conditioner. He added that they had once installed it in the ceiling and you could hear it kick on and off, but that it does not run all the time and the cooler only maintains 38 to 40 degrees. He noted that there are fan that run all the time inside the cooler, but that you cannot hear them.

J. Unger stated that his main concern is the noise of the compressor.

S. Sampson added that they are planning on putting it in the basement.

There was some discussion on ways to install the compressor to keep it quite.

L. Ordway asked if the compressor unit will be in the cellar of the unit.

G. Borrack replied no, they want to install it between the building and the compressor, next to the refrigeration unit that is there. If there is a disturbance, it can be blocked in and insulated.

There was no one else to speak in favor of or in opposition to the petition and the case was closed.

The case was re-opened to read a letter of opposition from Anthony Costanzo, 3 Elm Street. A. Costanzo’s concerns are:

Decreased property value due to noise
His 2^nd floor apartment will be harder to rent due to noise and appearance
Due to noise he will not have quite enjoyment for his property, as his deck is 30 feet of proposed cooler location.

G. Borrack rebuts stating that they have spoken with A. Costanzo and that it was his idea to insulate under the deck for noise, and that they agreed to comply with that, reiterating that if it is an issue, they can put it (the compressor) in the basement. He added they need a cooler and will do what they can to make everybody happy.

There is no one else to speak and the case is closed.

The Board adjourned for recess at 8:20 p.m. and reconvened at 8:25 p.m.

DELIBERATIONS

J. Matthews moved, second by L. Ordway, to grant the appeal of the administrative decision not to hear an application for workforce housing and the case was opened for discussion.

L. Ordway noted the following:

They heard from R. Brown and Atty. that they request due process, that they be allowed a hearing by the PB.
They heard from PB that there reason for not hearing the case is the fact that Plaistow has an over abundance of workforce housing, and does not have or need to write an ordinance.

L. Ordway noted that he is hung up on R. Brown not receiving his due process rights, but also why should the Town develop an ordinance that is not needed.

J. Matthews stated that the Town does not have to develop that ordinance or agree with his (R. Brown’s) proposal, but he does have the right to sit in front of the PB and show his proposal and have a discussion about it. She added that in the PB’s letter, it stated that they would not hear his case because they did not have an ordinance, not that they had data to support the fact that they do not need an ordinance. She noted that he never got the chance to get there.

There was more discussion on the issue of his right to due process vs. the PB not hearing the case due to not needing the ordinance.

J. Matthews questioned if there is something in the law that states there has to be an ordinance for them (PB) to hear the case.

L. Ordway responded that he does not know, that it may be an issue that should be resolved in Superior Court.

There is more discussion on this issue including if there is such a law, and the Board decided to vote.

The vote is 3-1-0, (L. Ordway voted against) and the motion passed.

R. Cole motioned to grant, second by J. Matthews.

L. Ordway summarized the application noting the following:

J. Lightizer owns a very small lot
There is a seasonal brook in the back yard
He wants to build a 16’ X 20’ deck
Deck will be on surface pilings and there will almost be no disturbance to soil
To not grant will be to deny him use of his property

The Board reviewed the criteria for the granting of a variance, noting the following:

The variance is not contrary to the public interest

L. Ordway noted that the public wants to keep the wetlands clean, and added that being 20 feet closer to the wetlands will not affect them.

The spirit of the ordinance is observed

L.Ordway said the deck will improve the property, and added that he is building a deck that will minimize the effect on the wetland.

Substantial justice is done

L. Ordway stated that the benefit to the applicant should not be outweighed by harm to the general public, and added that in this case he doesn’t believe it is.

The values of surrounding properties are not diminished

L. Ordway noted that the deck will increase the property value, not diminish.

The values of surrounding properties are not diminished

L. Ordway feels this is true, that the lot is too small to put the deck anywhere else and meet the requirements.

The Board had no more discussion on this matter, the vote was 4-0-0 U/A.

L. Ordway explained to the audience that they will receive an official notification in the next ten days. He added that they cannot do anything for 30 days in case someone wants to appeal, then after the 30days they are all set.

J. Matthews motioned to grant, second by J. Ingerson.

L. Ordway summarized the application noting the following:

In-law apartment that’s been in place for up to 15 years
Their daughter will be moving in
The apartment will use the same utilities meter
Classic case of the owner not realizing he needed a current certificate

There was no further discussion on this matter. The vote was 4-0-0 U/A.

J. Ingerson motioned to grant, second by R. Cole.

L. Ordway summarized the application noting the following:

It was a commercial building in Town back in the 1750’s

It is part of the early village scene

It is currently utilized as a commercial building, which is a benefit to the Town

This is a minor expansion in support of the business

L. Ordway noted that he feels the Board should grant the special exception.

J. Matthews asked if they should consider the placement for the compressor within the motion.

L. Ordway responded that they can do it now or later if and when they grant the variances, but added that they need to hear the special exception first.

There was no further discussion on this matter. The vote was 4-0-0 U/A.

L. Ordway summarized the applications noting the following:

Cooler will be used for flower storage
It will be located on the outside of the building with the only access being from the inside
It will be secured to a wooden deck with concrete footings
The cooler will be secure so that no one can get into it from the outside
The only issue brought up is the noise from the compressor

L. Ordway noted that the applicants are willing to install the compressor in the cellar to reduce noise if needed

J. Matthews asked if the Board limits them to the basement (to install the compressor) and the Building Inspector says no, does that force them to come back here.

L. Ordway responded that he does not feel it is an issue; he has no experience with coolers, but thinks you can install them anywhere.

The Board reviewed the criteria for the granting of a variance, noting the following:

The variance is not contrary to the public interest

L. Ordway stated that the public interest is to maintain the unique character of the Village Center and granting the variance would add to that.

The spirit of the ordinance is observed

L. Ordway noted that they do not want to allow any major non-conforming operations to that area as it would destroy the Village aspect.

Substantial justice is done

L. Ordway explained that the only harm to the general public would be the noise, and added that they heard testimony that the applicants that they will deal with the noise.

The values of surrounding properties are not diminished

L. Ordway stated that they heard evidence that the cooler would be placed in such a way that it would not be seen from the street, and that there are other commercial businesses in the area. He added that property values would not be diminished.

The values of surrounding properties are not diminished

L. Ordway noted that the hardship is definitely in the land as there is no space behind the house.

There is no more discussion on this matter. The Board decided to vote on both variances at the same time.

R. Cole motioned to grant, second by J. Matthews, both variances. The vote was 4-0-0- U/A

Request for Re-Hearing

#10-17: A request from Terri Russell for a variance from Article V, §220-32, to permit a lot line adjustment on a lot that doesn’t have the required minimum 150 feet of frontage on a Town road. The property is located on Nicholas Road; Tax Map 43, Lot 31, in the MDR District. The applicant is the property owner of record.

L. Ordway explained that the PB is requesting that the ZBA re-hear the Terri Russell variance issue from the October meeting. He added that according to the PB, they (the ZBA) granted a lot line adjustment, when what was requested was a variance to allow them to build on a lot that has less than the 150 feet of required frontage. He said that it is an error, they did grant a lot line adjustment, and he feels they should re-hear the case next month.

J. Matthews asked if they had had the proper information in front of them.

L. Ordway replied that he thinks so. He said he checked to see if it was advertised for a lot line variance or if it was advertised correctly as variance to build on a lot without frontage, he added that somehow in their deliberations, the board settled on a lot line adjustment which is something they should not have done.

L. Ordway asked the Board who was present at last month’s meeting.

J. Ingerson replied that she was not and will abstain, and R. Cole added that he was not present as well.

L. Ordway said that he and J. Matthews will vote.

L. Ordway moved to grant a re-hearing, second by J. Matthews.

J. Ingerson inquired as to whether two votes will carry the motion.

There was some discussion on whether two votes would carry, and it was decided that they could allow J. Ingerson and R. Cole to vote because they were not voting on new evidence, but voting as to whether the ZBA had made a mistake.

J. Ingerson replied that she will abstain as she is not comfortable with it.

R. Cole said he would vote.

There was discussion over where the mistake was made.

L. Ordway asked L. Pagnottaro, Recording secretary, where the sections in bold on the minutes come from, from something the Board said or the advertisement.

L. Pagnottaro replied the agenda (advertisement).

J. Ingerson asked who prepares them.

L. Pagnottaro responded that she assumed Dee (Voss), but is not sure.

L. Ordway stated that regardless of who made the mistake, they should not be changing lot lines as it is not their responsibility, and there is more discussion on the issue.

J. Matthews asked what it actually is they want the Board to hear.

L. Ordway answered that they (the PB) want them (the ZBA) to hear the case again with it in mind to grant a variance for a substandard lot does not have the required 150’ frontage.

J. Matthews asked if they re-hear the case, how it will be advertised, can it be changed or do they need to re-apply because they applied for something different.

There is some discussion on this issue and it is agreed that if it was advertised wrong then it needs to be a whole new scenario so that everyone is informed properly.

L. Ordway brought back the issue of if there are enough members to vote, because the Board feels they need three people.

R. Cole replied that based on the uncertainty surrounding the case, he is willing to vote.

L. Ordway clarified the uncertainty of communications between the PB, the applicant, the ZBA administration, and the ZBA.

L. Ordway stated that Dee (Voss) mentioned that the attorney for Terri Russell would not be surprised if the Board votes for a re-hearing. The Board discussed this more.

J. Matthews asked who is it that wants the re-hearing, and was answered the PB.

There was no more discussion on this matter. The vote was 3-0-1, J. Ingerson abstained.

There was no further business before the Board. The meeting was adjourned at 9:05p.m.

Respectfully Submitted,

Laurie Pagnottaro

Recording Secretary