TOWN OF SUNAPEE
ZONING BOARD OF ADJUSTMENT
JUNE 10, 2010
PRESENT: Alex Kish, Chairman; Charles Balyeat, Vice-Chairman; Jim Lyons; Ed Frothingham, Alternate; Roger Landry, Zoning Administrator.
ALSO PRESENT: John Mapley; Amy Manzelli; Clayton Platt; Susan Hankin-Birke; Robert Rupp.
ABSENT: George Sanders; Bill Larrow.
Chairman Kish called the meeting to order at 7:01.
Changes to the minutes of May 25: Line 25, change “denied” to “declined”. Line 26, change “addressing” to “address”. Line 92, change “it comes down to the hardship issue” to “the key appears to be the hardship issue.” Motion by Mr. Frothingham, seconded by Mr. Balyeat, to approve the minutes as amended. The motion passed unanimously.
Chairman Kish commented that because there are only four members present out of a five member board, the applicant has the option to continue the case until the second Thursday in July. If the case is heard, a majority of three will be required for a decision. Susan Hankin-Birke, counsel for the applicant, said they are comfortable moving forward with the case tonight.
Mr. Frothingham will vote for Mr. Sanders, as appointed at the case’s original hearing.
CASE 10-11, MAP 128 LOT 81, VIRGINIA H. FENNEY TRUST, 100 LAKE AVENUE, SEEKING APPROVAL OF A VARIANCE OF ARTICLE III SECTION 3.10 TO REDUCE THE LOT SIZE REQUIREMENT FROM 1 ACRE TO .39 ACRES.
The case is a continuation from the May 25 meeting. Ms. Hankin-Birke spoke for the applicant, stating that she has reviewed the case since it was first heard. The map that has been distributed shows the proposal to remove a 1.52 acre piece from lot 82 to be annexed to the applicant’s abutting lot. The area being removed is lawn and still leaves plenty of room for outdoor activities on the smaller lot. Reallocation of the lot line would provide more privacy for the cottage. Ms. Hankin-Birke addressed whether the proposal is keeping with the purpose of the ordinance. She stated that the subdivision and annexation does not create a greater density, there is no visual change, change of use, or change in access to the properties. There is no change at all
except that excess land from lot 82 is coupled with lot 81 to make a more conforming lot of record. Ms. Hankin-Burke addressed the issue of hardship. One criteria regarding hardship is “no fair and substantial relationship exists between the general purpose of the ordinance provision and the specific application of that provision to the property”. Again, there is and cannot be any change in the density. Another criteria is that the proposed use is a reasonable one. Ms. Hankin-Birke’s client has resided on the property for 25 years. The large house is more than she needs at this time and she is contemplating selling just lot 82 and not the whole property. She would like to keep the small lot and may want to renovate the house on it, but not until the larger one sells. There are no specific ideas about the renovation as to whether the house would be larger or not. Ms. Hankin-Birke pointed out that if and when her
client wants to make changes to the smaller house, she would have to come back to the town for permits and meet the current regulations. Ms. Hankin-Birke does not think concerns regarding future plans are relevant. Chairman Kish commented that it may be relevant in terms of diminution of value there. Ms. Hankin-Birke responded that the objecting abutter could repair a carport on their property which is in disrepair, rather than worrying about what her client would do in future to improve the value of her property. Ms. Hankin-Birke said she appreciates that precedent is important and referred to the recent Guy Alexander case, where the board granted two variances because the lots did not meet the 1.5 acres required in that zone. Based on the discussion that the board had at the last meeting, Ms. Hankin-Birke feels that this proposal should be granted a variance. Chairman Kish spoke to Ms. Hankin-Birke’s remark regarding the town striving for
consistency in its application of the ordinance, saying that different cases may present different fact patterns and the board may come to a different conclusion given the particulars.
Ms. Manzelli was present to represent Stephen Foscaldo and Kenneth Foscaldo, abutters who oppose the variance. She agreed that this is a hardship situation, as it is a small, outdated residence and small lot. Whether it meets the standard of “unnecessary hardship” is the question. Ms. Manzelli stated that most of her information comes from the New Hampshire Local Government Center document, The Five Variance Criteria in the 21st Century, published in 2009. The applicant needs to prove that there are “special conditions of the property that distinguish it from other properties in the area,” that “no fair and substantial relationship exists between the general purpose of the ordinance provision and the specific application of that
provision to the property” and that because of the special conditions of the property, the proposed use is reasonable. She then reviewed three other cases relating to unnecessary hardship and stated that none of the proffered justifications in this case rise to the level of unnecessary hardship.
Regarding the valuation issue, Ms. Manzelli would like expert evidence speaking to this issue, as she does not believe the average person can make this assessment. Valuation must be “site specific”. The Foscaldos are concerned with recent tree cutting on the property. Mr. Landry said it is within the owner’s right to do that. He added that the assessor’s point of view is that chopping a piece off a big lot would have little impact on it and the value of the small lot would be increased. If you are going to add value to one lot, you will add value to the surrounding lots.
Regarding the comment that the density is not changing, Ms. Manzelli said that is not known at this time. She feels a larger house could accommodate a larger number of people. Chairman Kish stated that the density refers to the buildings not the number of people. Ms. Manzelli stated that financial issues do not rise to the level of an unnecessary hardship and said the Foscaldos urge the board to deny the application, as the applicant has not proved unnecessary hardship and valuation.
Ms. Hankin-Birke referred to the Foscaldos’ annexations, saying they have achieved already through annexations what her client is attempting to do. She stated that now that the Foscaldos have made their adjustments, they are opposed to their neighbors doing the same thing. She feels that none of the cases cited by Ms. Manzelli are factually similar to this one.
Mr. Landry said that in reviewing past cases, there have been well over 100 lot mergers and the town has welcomed people doing so, as it eliminates many smaller pieces of land.
Ms. Manzelli reiterated that the dimensions of the lot do not impact the hardship.
Chairman Kish stated that he thinks the applicants’ future plans are not relevant. Regarding Ms. Manzelli’s statement that a reasonable use is already in existence, he does not feel that precludes other reasonable uses. He feels the applicant has demonstrated that most of the surrounding properties have been enlarged to be more conforming over the years, including the Foscaldos. Enlarging the lot would allow the applicant reasonable use of the property and the hardship of having a small, landlocked lot does give a meaningful distinction from neighboring property. Chairman Kish feels the applicants have argued persuasively that there are unique aspects of the property and granting the variance would make the parcel less non-conforming. As far as diminution of
value, he is comfortable taking the applicants’ claim that any proposed improvements would be done with an eye toward enhancing the value.
Mr. Frothingham said what the applicants would like to do makes sense and they have supported their request.
Mr. Lyons agreed exactly with what Mr. Frothingham said. He does not see why the Foscaldos object to it, as it is basically none of their business.
Chairman Kish asked the board to consider the arguments regarding the hardship question. He reviewed the criteria and stated that he feels the criteria for granting the variance have been met. Chairman Kish suggested granting the applicant’s request.
Motion by Mr. Lyons, seconded by Mr. Balyeat, to approve the request for a variance of Article III Section 3.10 to reduce the lot size requirement from 1 acre to .39, as per survey submitted June 7, 2010. The motion passed unanimously.
The meeting closed at 8:22.
Respectfully submitted, Katie Richardson
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Alex Kish, Chairman Charles Balyeat, Vice-Chairman
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Jim Lyons Ed Frothingham, Alternate
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