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1 TOWN OF SUNAPEE
2 ZONING BOARD OF ADJUSTMENT
3 July 10, 2008
4 7:00 PM
5 *****DRAFT***** *****DRAFT*****
6 Present: Peter Urbach, Chairman
7 Robert Henry
8 Harry Gazelle
9 Charles Balyeat, Alternate
10 Ed Frothingham, Alternate
11 Roger Landry, Zoning Administrator
12
13 Absent: Alex Kish, Vice-Chairman
14 James Lyons
15
16 The meeting was called to order at 7:02 PM by Chairman Peter Urbach.
17
18 ADMINISTRATIVE SESSION:
19 Charles Balyeat and Ed Frothingham were appointed to vote in the absence of Alex Kish
20 and James Lyons.
21
22 The minutes of the June 12, 2008 meeting were reviewed and corrected as follows:
23 Line 138 – change the word late to lake.
24 Line 151 – change the word marked to market.
25 Line 188 – after the sentence ending with accommodate them add – Harry Gazelle asked
26 if the septic system is adequate for the number of bedrooms and children. Roger left the
27 meeting to check on this and came back to report that the residence has a 1986 approved
28 septic plan for 3 bedrooms, while the home has 5 bedrooms.
29 Line 228 – Delete the sentence Roger Landry reported that we have a 1986 approved
30 septic plan for 3 bedrooms.
31 Line 16 – Add Charles Balyeat to the absent list.
32 Line 41 – change the word house to hours.
33 Line 43 – change the word correct to corrected
34 Line 99 – change the word precedence to precedent.
35
36 A motion was made by Harry Gazelle to approve the minutes as corrected. The
37 motion was seconded by Robert Henry and approved by the Board.
38
39 Planning Board Report:
40 Roger Landry reported that the Planning Board met on July 3, 2008 and has extended the
41 hearing on Sonya Land Investments to their next meeting on July 17, 2008. The Planning
42 Board has asked the Board of Selectmen for a 90 day extension. If the extension is not
43 approved, the application by Sonya Land Investments will be denied automatically.
44 Roger also reported that the site plan for Deck and Dock was approved.
45
46 Chairman’s Report:
47 Peter Urbach reported that there has been discussion of a joint Zoning Board and
48 Planning Board committee to work on a wind turbine ordinance. There will be 3
49 members from each board plus Roger Landry and Michael Marquise. If an ordinance is
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approved by the two boards, it will go before town meeting and 50 be voted on. Harry
51 Gazelle, Bob Henry, and Alex Kish have volunteered to serve on the committee
52 representing the Zoning Board.
53
54 Peter explained the process the Zoning Board of Adjustment follows for the cases
55 and the function of the members.
56
57 7:15 PM
58 CASE# 08-08. THOMAS & KAREN MCGHEE. MAP #136 LOT #3.
59 169 BURKEHAVEN HILL RD., SUNAPEE, NH. SEEKING A SPECIAL
60 EXCEPTION TO OPEN AND OPERATE A DAYCARE AS PROVIDED FOR
61 UNDER ARTICLE IV SECTION 4.10 AT 169 BURKEHAVEN HILL RD.
62
63 Karen McGhee stated there were some issues from the last meeting. The first was the
64 septic system. She reported that she has talked with Cliff Richer, the septic designer, and
65 he stated that the system is working fine. She will be reducing the number of children to
66 5 from 8, which will make the total 7 with her own children. She stated that Mr. Richer
67 does not perceive any problems with the septic system, but if a problem arises it can be
68 remedied within the same footprint. She presented a letter from Mr. Richer (see letter in
69 case file). Roger Landry stated that he spoke to Cliff Richer and the original design was
70 for 3 bedrooms, but the state has since reduced their capacity requirements by 75 gallons
71 per day. He also stated that the applicant is using 2 bedrooms for other functions, not as
72 bedrooms. They are currently a family room and a play area. Bob Henry noted that the
73 letter from Cliff Richer says a new system of a different type can be put in, not the same
74 system. Ed Frothingham stated that he feels okay with it as long as if a problem arises, it
75 has to be taken care of and he is also okay with the number of bedrooms confirmed with
76 an inspection by Roger Landry. Bob Henry stated that the applicant can decide to use
77 those rooms as bedrooms at any time and Peter Urbach advised that they can make
78 approval contingent on only using 3 bedrooms as bedrooms.
79
80 Peter Urbach read a letter from Pam Shugart, an abutter, expressing disapproval of the
81 application as she does not think it is appropriate for the neighborhood because of
82 increased traffic, etc. (See letter in case file).
83
84 Harry Gazelle questioned fencing and Mrs. McGhee stated that she will be adding
85 fencing if the application is approved. Roger Landry advised Mrs. McGhee that if it is
86 approved, she will have to go to the Planning Board for a Site Plan Review. Harry also
87 expressed concern about traffic coming out of the driveway onto Burkehaven Hill Rd. as
88 it is a blind corner. He also expressed concern for the noise factor as it is a residential
89 area. Mrs. McGhee stated that theirs is the only family with children and they are the
90 quietest. She can hear her neighbors, but they cannot hear her family. She does not
91 foresee the noise level going higher that it is now. She also stated the amount of time
92 outdoors will be limited to ½ hour in the morning and ½ hour in the afternoon.
93
94 Peter Urbach stated that at the last meeting on this case, they had letters from the Gallups
95 and the Balyeats with questions and concerns (see letters in case file). Roger Landry
96 stated that Sunapee does not have a noise ordinance. If someone has a complaint, they
97 can call the police and the Police Chief determines if it too loud and will stop it.
98
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Charlie Balyeat asked if this will change the area to a commercial area 99 and Peter Urbach
100 replied that is would be a change of use, but it would remain a residential area. Roger
101 Landry advised that the change of use stays with the land.
102
103 Bob Henry asked if the Board thinks this is an adequate use for that area. He asked if the
104 Board can limit the number of students. Peter Urbach advised that they could grant the
105 special exception contingent on certain conditions. Ed Frothingham asked what the hours
106 would be and Mrs. McGhee advised they will be from 8:00 AM to 5:00 PM. Harry
107 Gazelle asked what the affect on property values would be and Roger stated it is not up to
108 the Zoning Board to decide that. That is something the abutters should question.
109
110 There were no abutters present.
111
112 Bob Henry noted that there is another case involving the same function coming before
113 them tonight and the considerations should be the same for both.
114
115 A motion was made by Bob Henry to approve Case #08-08, Thomas & Karen
116 McGhee, Map #136, Lot #3. 169 Burkehaven Hill Rd., Sunapee, NH. Seeking a
117 Special Exception to open and operate a daycare as provided for under Article IV
118 Section 4.10 at 169 Burkehaven Hill Rd. with the conditions that the total number of
119 students be limited to 5 preschool children, not including the applicant’s own
120 children, the property be limited to 3 bedrooms, and that appropriate fencing be
121 installed in the back yard. The motion was seconded by Ed Frothingham. The vote
122 was 2 in favor and 3 opposed. The Special Exception was denied.
123
124 Mrs. McGhee asked if she has any recourse and was advised that she can appeal or
125 reapply.
126
127 One member of the audience asked the reasons for denial and Peter Urbach stated that the
128 reasons were that it is not appropriate for the neighborhood and concern from the
129 abutters.
130
131 7:44 PM- The hearing was closed.
132
133 7:44 PM - CASE# 08-12. SIMON & FAYE HUNG. MAP 103 LOT 20. 57
134 OAKRIDGE ROAD, SUNAPEE, NH. SEEKING A USE VARIANCE FROM
135 ACTICLE III, SECTION 3.10 TO ALLOW MORE THAN ONE DWELLING
136 (HOUSEKEEPING) UNIT ON A NON-CONFORMIMG LOT ACROSS FROM 57
137 OAKRIDGE ROAD ON OTTER POND.
138
139 Mr. Hung stated that he bought the property in March. There is 50’ of water frontage and
140 a road dividing the property into 2 portions. He wants to build a 10’ X 20’ structure by
141 the water. It will have no heat and no kitchen facilities. He stated that the original permit
142 for the site was for a gazebo. He submitted drawings for the new structure. The
143 application is now for a different type of construction. It will not be a dwelling unit.
144 There will be no change from the intended use of the original permit. It will be like an
145 enclosed gazebo with sliding glass doors.
146
147 Roger Landry reported that, at the time of the subdivision, it was made known that
148 nothing could be built on the lot except a gazebo. They can only put in a 10’ X 20’
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structure. The size of the lot will only permit that. Bob Henry questioned 149 how close to
150 the water the structure will be and Harry Gazelle stated it is 40’. The Board members
151 questioned the allowed amount of time from the original variance and Roger replied that
152 it is one year from the granting of the variance and that the building permit gives an
153 additional one year. He stated that he will have to check the date of the variance. Roger
154 also stated that if the applicant wants to make it an enclosed structure, he has to have
155 approval from the Zoning Board. Harry Gazelle stated that the foundation was put in
156 without a permit. Peter Urbach advised that for setback from the water, they have to
157 measure from the water to the structure, not to the paved area and that it meets the 50’
158 setback. Harry Gazelle stated that the side setback is less than 15’.
159
160 7:56 PM – The Board adjourned the case temporarily so Roger Landry can
161 research the permits.
162
163 7:56PM -CASE# 08-13. JOHN GALLOWAY, SAMANTHA & EDWARD BAILEY.
164 MAP 232 LOT 13. 86 TRASK BROOK ROAD, SUNAPEE,NH. SEEKING A
165 SPECIAL EXCEPTION AS PROVIDED FOR IN ARTICLE IV, SECTION 4.10
166 TO OPEN AND OPERATE A DAY CARE FACILITY AT 86 TRASK BROOK
167 ROAD.
168
169 Samantha Bailey and John Galloway were present. Ms. Bailey stated that they would
170 like to operate a preschool out of the basement of their home. She is seeking to have 8
171 children. Mr. Galloway has one child who is there part time. Harry Gazelle asked about
172 fencing and Ms. Bailey advised that if it is needed, it can be done. The house is back
173 from the highway. She stated she will have no employees. She also stated that the septic
174 system is brand new and approved for 2 bedrooms and there are 2 bedrooms in the house.
175 Mr. Galloway advised that the septic system was put in in the 1980’s and is state
176 approved.
177
178 There were no abutters present.
179
180 Peter Urbach noted that the site is fairly remote. Bob Henry stated that the only issue is
181 that they don’t overbear the septic system. He questioned the amount of acreage and Ms.
182 Bailey advised it is .45 acres. Ed Frothingham stated his only concern would be that they
183 put a limit on the number of children. He also questioned the hours of business and Peter
184 Urbach stated that the area is so remote, he doesn’t think it matters. This is in a rural
185 residential area.
186
187 A motion was made by Harry Gazelle to approve Case #08-13, John Galloway,
188 Samantha & Edward Bailey, Map 232, Lot 13, 86 Trask Brook Rd., Sunapee, NH,
189 seeking a Special Exception as provided for in Article IV, Section 4.10 to open and
190 operate a daycare facility at 86 Trask Brook Rd. The motion was seconded by
191 Charlie Balyeat and approved unanimously by the Board.
192
193 8:06 PM – The public hearing was closed.
194
195 8:06 PM – The Board called a recess to await the results of Roger Landry’s research
196 for Case # 08-12.
197
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198 8:17 PM – Case #08-07
199
200 Mike Durfor stated that he is submitting a request for a re-hearing of CASE #08-07,
201 MAP 137, LOT 18, MICHAEL & HOLLY DURFOR. MAP #137 LOT #18.
202 40 HARBOR HILL RD., SUNAPEE, NH. SEEKING A VARIANCE OF ACTICLE
203 III SECTION 3.10 TO INCREASE THE MAXIMUM HEIGHT OF A
204 STRUCTURE TO 51 FT. TO CONSTRUCT AND OPERATE A WIND TURBINE
205 GENERATOR. He advised that on June 28, 2008 he submitted a letter to Roger Landry,
206 including a picture, and a letter from Frank and Lynn Gallup in support of his request.
207 He would like to make an appeal at the meeting of the Zoning Board on August 14, 2008
208 for a use variance. Peter Urbach advised that the town attorney stated that a use
209 application would be required as well as a height variance. Mike reported that he spoke
210 to the Planning Board about the best way to proceed as an ordinance would have to be
211 worked on and drafted. The Planning Board stated that they think it is permitted as an
212 accessory use. Make stated that the pole is identical to a flag pole and flag poles are
213 exempt. He also stated there are 5 or 6 other people in town who want to put up wind
214 turbines now. He questioned if solar panels are permitted or not as they are mounted to
215 roofs and a safety concern for firefighters, etc. He cited the case of Becker vs. Hampton
216 Falls which cited accessory use which is minor in relation to permitted use. He stated
217 that it is reasonably associated with the primary use. He also read from 1.20 of the
218 Zoning Ordinance quoting the purpose of the ordinance.
219
220 Peter Urbach advised that a re-hearing weighs if a mistake has been made or if new
221 information is available. He stated that the Board has new information from the town
222 attorney that they should consider use. He thinks they should take up the use and area
223 variances at the next meeting. Bob Henry stated that he has not heard any new
224 information that would make him change his decision and Peter advised that they should
225 consider a use variance separately. Roger Landry explained that a use variance is for the
226 use of the turbine itself. The state says it is not an accessory use, so he has to come in for
227 a use variance. The area variance would be reheard for the height. Bob Henry stated he
228 thinks it has to be ordinanced and they have to consider all the factors. Peter explained
229 that does not preclude Mike Durfor from presenting his case. Whether it is approved or
230 not is another matter. Harry Gazelle advised that he thinks it would be appropriate to put
231 a hold on this until the town can vote on it since it affects the entire population. Roger
232 advised that if the applicant is denied a re-hearing, he can come back with a new area
233 variance and a use variance. He can also go to the superior court and have a judge say
234 they should have a re-hearing. Peter Urbach explained that even though it came before
235 the board as an area variance, most of the discussion was on use.
236
237 Mike Durfor stated he would like a hearing on the use variance followed by a re-hearing
238 on the area variance.
239
240 A motion was made by Bob Henry to re-hear Case #08-07 at the next meeting on
241 August 14, 2008 for a better understanding. The motion was seconded by Charlie
242 Balyeat and approved with 4 in favor and 1 opposed.
243
244 8:45 PM – Case #08-12 (continued)
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Roger Landry reported that the original applicant met with the Zoning 245 Board in April of
246 2004. The application was to be allowed to be within 10’ of the right-of-way of Oakridge
247 Rd. by Special Exception for a new non-residential structure. He doesn’t know how it
248 was voted. In 2002 the land was subdivided, but done incorrectly. It did not include the
249 waterfront property, but did include the neighbor next door. An agreement was made to
250 move the lot line. The original drawing showed the lot across the road as a no building
251 lot. The new plan showed where a non-residential structure could be built. He stated that
252 the Planning Board approved the subdivision in 2004. A building permit was applied for
253 in September of 2004 for a gazebo with a bathroom connected to the sewer system. The
254 permit expired 1 year later because nothing was done. In February of 2008, Viola came
255 in for a building permit for a 10’ X 22’ gazebo which was approved on February 25,
256 2008. The foundation has since been put in and it has to be a gazebo. Peter Urbach
257 asked about the side setbacks and Roger stated that it meets the side setback which is now
258 10’. Peter stated he thinks it is within the setback and the foundation is 22’.
259
260 Mr. Hung stated he is requesting that they approve the new drawing. There will be glass
261 sliders on 3 sides of the building. The only thing different from a gazebo is that it will be
262 dry. There will be no heat and no cooking facilities. There will be a bathroom with a
263 shower, but there will be no hot water. It will not be a dwelling unit. Roger stated that it
264 will be somewhat different from a screened in structure and that he would need an
265 approval of a use variance before a permit can be issued. Mr. Hung stated that, if it helps,
266 he can eliminate the shower. Roger advised that in 6.30 of the Zoning Ordinance it states
267 that a non-conforming use (an enclosed structure rather than a gazebo) needs approval.
268 Peter Urbach stated he does not think this is a variance request and that it is up to the
269 Board of Selectmen to approve or disapprove. One abutter asked if a new owner comes
270 in can he put up walls and use it as a bedroom. Roger advised they are trying to avoid
271 that by putting on strict restrictions. He advised the Board that the applicant is requesting
272 a use variance and the Board could approve that with restrictions so that he can enforce
273 them. Peter suggested that the Board take the permitted 30 days to consider the case.
274
275 A motion was made by Bob Henry to extend the case to the next meeting on August
276 14, 2008 so the Board can properly review the options. The motion was seconded by
277 Charlie Balyeat and approved unanimously.
278
279 Peter asked if any abutters had any comments. Kurt France stated that he thinks a glass
280 enclosed structure is not in keeping with the appearance of the property. He also stated
281 that, at the time of the original gazebo, fill was added to the property which raised the
282 elevation to the pond and since then, additional fill has been added. He stated there is a
283 6’ high boat house under structure and another concern is the number of trees that have
284 been cut. Some were on the property line and several were on the town right-of-way.
285
286 9:18 – The public hearing was closed.
287
288 9:18 PM – The meeting adjourned.
289
290 Submitted by Joan Bleau, Recording Secretary Date approved
291
292
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293
294 Peter Urbach, Chairman Alex Kish, Vice-Chairman
295
296
297
298 Robert Henry Harry Gazelle
299
300
301
302 James Lyons Charles Balyeat, Alternate
303
304
305
306 Ed Frothingham, Alternate
307
308
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