Town of Plaistow Archive - ZBA Minutes 09-25-14

ZBA Minutes 09-25-14

ZONING BOARD OF ADJUSTMENT

September 25, 2014

The meeting was called to order at 7:02 p.m.

Roll Call: Larry Ordway, Chair

Timothy Fisher, Vice Chair

James Allen,

Paul Boniface, absent

Peter Bealo, Alternate

P. Bealo was appointed as a voting member for this meeting.

Minutes of the August 28, 2014 Meeting

L. Ordway moved, second by T. Fisher, to approve the minutes of the August 28, 2014 meeting. There was no discussion on the motion and the vote was 3-0-1 (Bealo abstaining).

L. Ordway noted that there were only four (4) voting members sitting on the Board for this meeting. He explained the significance of the voting in these matters in that a split vote would defeat the motion. He noted that all applicants had the right to request a continuance to a full Board.

D. Voss added that should an applicant move forward with their presentation at this meeting and are denied, they cannot use the lack of a five (5) member board as grounds to request a re-hearing.

#14-14: A request from James M. Lavelle for a variance from Article V, §220-32E to allow single-family dwelling lot to be created with 50 feet of frontage, where 150 feet is required. The property is located at 26 Smith Corner Rd, Tax Map 53, Lot 56 in the MDR District. Harry Scott Lane and Susan Cottis Lane are the property owners of record.

Tim Lavelle, Lavelle & Associates, was present for the application. The property owners Scott and Susan Lane were present in the gallery.

T. Lavelle noted that following in support of the application:

The property is located at 26 Smith Corner Rd
The total acreage is 6.8, with 254.01 feet of frontage
The Lanes would like to create two (2) lots, one that would be 4 acres and one that would be 2.8 acres
The back lot (4 acres) would have 50 feet of frontage, which is less than the minimum required
There is not 300 feet of frontage to split to make both lots compliant
The back lot would be at least 250 feet wide and behind the existing lot with all its structures
The hardship is that there is not extra frontage to create two compliant lots and there is nowhere to pick up additional frontage
The lots to the left on Kristie Lane are all small lots with minimal frontage
There are wetlands involved and should this variance be granted they would have to come back for additional relief to cross wetlands (in the driveway area)
They are able to meet the driveway setbacks, but not wetlands buffer setbacks
Not catching the wetlands was an oversight and was not pointed out by the Planning Board as part of their review

T. Lavelle approached the Board to show where the driveway would be placed.

T. Lavelle offered that this was a lesser impact to the neighborhood than if the Lanes decided to put a road in and subdivide the property into 3-4 parcels.

P. Bealo asked why they didn’t move the new lot line over a little to give more frontage to the proposed lot.

T. Lavelle replied that they could have moved it over more, or arced it some, but he noted that they were not setting up to put a future road. He added that even if it were over more, it would still be short. The existing frontage is 254.01, if they left 150 for the existing lot that would still only leave 104.01 for the proposed lot.

P. Bealo asked about the minimum driveway setback. It was noted to be 15 feet in this district.

T. Lavelle reminded that the driveway would need a wetlands variance. He reiterated that it was not their intentions to separate the two applications, it was just too late to legally notice by the time it was pointed out to him.

L. Ordway asked if there were any additional questions from the Board. There were none. He asked if there was anyone speaking in favor of the application.

Dan Johnson, 22 Smith Corner Road, offered that he was in favor of the application because he felt the single lot subdivision would be better than a multi-lot subdivision. He noted that at one point in the Town’s history 50 feet of frontage was permitted.

S. Lane read a letter to the Board noting their long-time commitment to the Plaistow Community and citing time of life and health for their reasons to seek subdivision of their property.

L. Ordway asked if there was anyone speaking in opposition to the application.

Jim Peters, 13 Kristie Lane offered the following:

He though highly of the Lanes and considered them to be good people
His concerns were about the five (5) variance criteria and only having 50 feet of frontage
He questioned if they would be able to put a cul-de-sac and “40 houses” on the parcel
He asked if the intent was to have only one (1) hour

T. Lavelle offered that if they were putting in a road to create frontage for additional lots they wouldn’t have had to come for this variance as 50 feet was all that was required for a road and that new road would create the frontage for the new lots to be able to comply.

Nancy Wheelwright, 28 Smith Corner Road, offered the following:

She didn’t like the word “opposition” because she likes the Lanes, but she did have concerns for her own privacy
She questioned where the house would be placed on the lot. It was noted that would be up to whomever purchased the lot as well as where a well and septic could be located on the lot
She noted that she was worried about her loss of the view and the privacy of her backyard pool
She questioned if the additional house would lower her property values.

T. Lavelle showed the location of the proposed new lot. He indicated where wetlands were on the property, noting that he would have to comply with required setbacks from those areas. T. Lavelle added that the proposed lot would be set back approximately 500 feet from the road.

David Goodwin, 7 Kristie Lane, offered the following:

Even if there was a point in time that the Town allowed lots with 50 feet of frontage that was changed. There must have been good reason for that change and he felt that this application would override those reasons
He was concerned that later someone could come back and ask for additional units

An explanation of zoning on multiple units was offered to those present. It was noted that:

The requirements for creating a new single-family lot in this district are 40,000 sq ft of land and 150 feet of frontage
A duplex requires 80,000 sq ft of land and 200 feet of frontage
Anything greater than a duplex would require a minimum of ten (10) acres and would follow the requirements of the PRD (Planned Residential Development) ordinance
The application before the Board states that it is for a single-dwelling lot. Anything greater than that may require them to re-apply for additional relief
It was noted that any application for additional relief or any action by the Planning Board would also trigger notification of all abutters

P. Bealo noted that when a zoning ordinance is changed it is not done by the Zoning Board or the Planning Board, but by a vote of the people of Plaistow.

L. Ordway asked twice more if there was anyone speaking in opposition. There was no one and the matter was closed.

#14-15: A request from Kelly M. Redwine for a variance from Article V, §220-32I to allow a structure to be built 11 feet from the side property line where 15 feet is the minimum required. The property is located at 13 Elm St, Tax Map 41, Lot 85 in the VC District. The applicant is the property owner of record.

Kelly Redwine and Charles diPierre were present for the application.

Ms. Redwine was asked if she would like to move forward with her application or continue to a five (5) member board. She chose to move forward.

K. Redwine offered the following in support of her application:

She would like to construct a garage next to her home
The size of the proposed garage would be 24’ x 28’ feet and would be eleven (11) feet from the property line
Because of the location of the well and the septic she feels this is the best location for the garage
The esthetics of the proposed garage would be in keeping with the historic neighborhood

L. Ordway noted the he had looked at the plan and it looked like there was ten (10) feet between the house and the proposed location of the garage. He questioned why they couldn’t move it over the four (4) feet to be compliant.

K. Redwine replied that would make it too close to the well and they would have to drive over the well head to access the garage.

C. diPierre approached the Board and explained the placement of the well and septic in relation to the proposed location of the garage. He noted that the proposed location gave them the ability to easily pull into the garage and would be more esthetically pleasing.

P. Bealo asked if putting the garage closer would cut off the waste line for the septic.

C. diPierre replied that it would not, but that it would make it easier to access if there was a need to repair the system, was better access and better esthetics.

L. Ordway asked if the Board had any additional questions, there were none. He asked if there was anyone speaking in favor of the application.

Letters from three (3) abutters were read into the record. All letters expressed support for the application. The letters were from:

Howard and Jennifer Unger, 141 Main St
Mary Anne Garbati, 11 Elm St
Jeff Quirk and Dolores Coyle-Quirk, 15 Elm St

L. Ordway asked if there was anyone speaking in opposition to the application. There was no one and the matter was closed.

#14-16: A request from Marc & April Bernhardt for a special exception under Article V, §220-32B.D. for the care and treatment of animals. The property is located at 16 Danville Rd, Tax Map 30, Lot 87 in the CI District. Diana L. Allen is the property owner of record.

L. Ordway called this matter three (3) times and there was no representation. This results in an automatic denial.

NOTE: When the Board’s mail was retrieved the next morning, there was a letter requesting to withdraw the application.

The chairman called for a break at 7:37 p.m. The meeting was called back to order at 7:47 p.m.

DELIBERATIONS:

L. Ordway read the legal notice for case #14-14.

T. Fisher moved, second by J. Allen, to grant the request for variance for 26 Smith Corner Rd as posted in the legal notice.

L. Ordway summarized the application, noting the following:

The current lot has 254.feet of frontage
They are proposing a new lot with 50 feet of frontage
The access/driveway is closer to Kristie Lane
There are areas of wetlands
The Lanes have been Plaistow residents for 35 years
They are ready for changes in their lifestyle

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

The public interest is in maintaining distance between houses. It was discussed that there would only be a single house lot proposed as part of this subdivision. There are ordinances in place to prevent multi-family dwellings on the property without tearing the existing structure down

P. Bealo offered that he wasn’t sure he agreed with that assessment. He reminded that they only issue that this Board was called to examine was the lack of sufficient frontage to create a new lot. P Bealo noted that he didn’t know all the other options available to the Lanes as it was not the purview of this application. He added that the driveway does not have to be as narrow as the 50 feet, they could have more.

The great amount of the request, asking the Board to vary 2.3rds of the minimum requirement is not in keeping with the spirit and intent of the ordinance, which is adequate separation
There is no loss to the general public in the creation of a single house lot
There could be impact to surrounding property values, particularly to those properties located on Kristie Lane
There is no hardship in the land as it is already being used residentially and the owners could use the land for additional uses such as a tree farm.

T. Fisher offered that they could have proposed as much as 100 feet of frontage and while still not compliant may have been more palatable.

L. Ordway suggested if they had added another 50 feet to the proposed frontage it may have encroached and substantially devalue the existing dwelling.

T. Fisher added that may happen no matter where they tried to place the driveway.

P. Bealo reminded there was no testimony on the devaluing of the exiting parcel.

There was no additional discussion on the motion and the vote was 4-0-0 and the motion is defeated.

L. Ordway read the legal notice for case #14-15.

T. Fisher moved, second by P. Bealo, to grant the variance request at 13 Elm St as posted in the legal notice.

L. Ordway summarized the application, noting the following:

The house is located in an historic area
Placement closer to the house would encroach on the location of the well and the septic
This was a better location for driveway access
The proposed plan puts them six (6) feet off the house, they would be two (2) feet off if forced to comply
There was no one speaking in opposition to the application and three (3) letters of support.

P. Bealo noted that he heard multiple times the reason to place the garage where proposed was for better esthetics. He noted that esthetics was not a hardship criteria.

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

The Public Interest is in maintaining the colonial atmosphere, garages are a necessary part of life in these times and one that will keep with the esthetics is better than a steel building of a Quonset hut
Four (4) feet doesn’t seem to be too contrary to the spirit of the ordinance, if the request was to be two (2) inches that would be an issue

P. Bealo offered that he didn’t hear any testimony that suggested they would not be able to build a garage if they were granted the variance.

L. Ordway replied that he heard that they could be encroaching on the well and septic. He didn’t think making the garage four (4) feet smaller would work as garages have to be of certain size to accommodate today’s vehicles.

P. Bealo noted that he didn’t hear that they would be encroaching on the septic, just that it would be a concern during excavation.

L. Ordway added that they would be closer to the water system which could cause issues with how the water percolated in a rain storm.

T. Fisher added there could be an issue with plows hitting the well head.

There is substantial justice in allowing a garage, the public gains a new structure, increased property values, fitting in with the district character
There would be nothing to diminish the surrounding property values, values may be increased
Hardship: The four (4) feet is not 40 feet and they are not asking to be two (2) inches off the line.

P. Bealo disagreed, noting the applicants had emphasized that they were seeking the variance for esthetic reasons, which is not a ground for hardship.

L. Ordway questioned how else they could put a garage on the property.

P. Bealo suggested that they move it four (4) feet closer to the house, noting that he only heard testimony that it would be more convenient, not impossible to be farther away.

L. Ordway offered there were issues with the well and septic and that would put the structure two (2) feet off the dwelling.

T. Fisher added that it would be contrary to the esthetic pleasing value.

P. Bealo reiterated that esthetics is not hardship grounds under the RSAs.

There was no additional discussion on the motion and the vote was 2-2-0 (Allen and Bealo dissenting).

Request for re-hearing received September 9, 2014

#14-11: A request from Cumberland Farms for a variance from Article IX, §220-61 to allow eight digital/LED fuel pump topper signs. The property is located at 142 Plaistow Rd, Tax Map 29, Lot 21 in the CI District. The applicants are the property owners of record.

The letter submitted by the Plaistow Board of Selectmen re-questing a re-hearing in the noted matter was read for the record. The letter alleged that the Board erred when it did not specifically step through, nor specifically discuss, the five (5) criteria required for the granting of a variance.

L. Ordway noted that while there isn’t an RSA that states the five (5) criteria must be listed out, it is required that all the elements be discussed as part of the deliberative process. He added that he felt it would be a good idea to re-hear the matter and make sure all criteria are addressed.

P. Bealo moved, second by L. Ordway, to grant the request of the Plaistow Board of Selectmen to re-hear the matter of the Cumberland Farms digital sign variance request. There was no discussion on the motion and the vote was 4-0-0 U/A.

Other Business

Members were asked to review the Zoning Board of Adjustment By-Laws and submit any proposals for changes to D. Voss by October 15, 2014

P. Bealo questioned why each case isn’t immediately decided upon after being heard, instead of after all hearings are completed.

L. Ordway explained that it was trying to be fair to abutters that were here for meetings. If they were here for the last matter they would have to wait longer to participate.

There was no additional business before the Board.

The meeting was adjourned at 8:23 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant