DUNBARTON ZONING BOARD OF ADJUSTMENT

MONDAY, MAY 14, 2001

TOWN OFFICES – 7:00 P.M.

The regular monthly meeting of the Dunbarton Zoning Board of Adjustment was held at the above time, date and place with Chairman Terry Swain presiding. The following members were present:

Terry Swain, Chairman Bruce Vaal, Building Inspector

John Trottier, Co-Chairman Ray Simard, Former Building Inspector

Alison Vallieres, Secretary Steve Duggan, Town Counsel

Gertrude Dulude

John Herlihy

John Van, Alternate

David Nault, Alternate

Scott Ives, Alternate

Chairman Terry Swain verified with the Secretary that the meeting had been posted in a timely fashion in three public places throughout the Town and published in the Concord Monitor for one day.

The minutes of the previous meeting of Monday, April 9, 2001 were approved as written with a motion from John Herlihy and seconded by John Van. The motion passed unanimously.

7:00 p.m. – PUBLIC HEARING FOR REQUEST FROM ANTHONY MIGNEAULT FOR AN EQUITABLE WAIVER TO ALLOW GARAGE TO REMAIN WHICH WAS DESIGNED TO PROVIDE ACCCESSIBILITY TO A HANDICAP (WHEELCHAIR) VEHICLE CLOSER THAN THE REQUIRED 50 FOOT SETBACK AT HIS PROPERTY ON 1 HOLIDAY SHORE DRIVE IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Tony Migneault appeared before the Board and stated that he first wanted to inform the Board that the wording on the public notice was a little different than the request for the Equitable Waiver because in the first instance he had applied for a Variance and after reviewing the criteria for Equitable Waiver, he applied for an Equitable Waiver instead. The wording on his application reads as follows:

“Use a garage substantially completed (85%)? Built 28’ from rear lot line – by prior approval of inaccurate lot size dimensions supplied by Town Representative with non negligent intent. *The garage was constructed to provide accessibility use to a handicap (wheelchair) vehicle.”

Presented plan showing corrected dimensions of 150’ x 100’. (Attached)

Tony Migneault stated he would start by giving the Board a chronological review of the situation as follows:

1. He purchased the property in February 1999.

2. In spring of 1999, he came to the Town to build a deck. Spoke with Ray Simard, Building Inspector. Ray worked closely with him with plot plan and footage. A week into the project, Ray Simard noticed that the setback was 47.5 feet from Holiday Shore Drive. Required a Variance which was received in June 1999 for deck. Finished this project.

3. In fall of 1999, he applied for a mud room in back of house. Ray Simard issued a Building Permit. He submitted the same information as previously.

4. In spring of 2000, applied for permit for a septic system because the original system could not be used. Came before Zoning Board in March of 2000 for a Variance. Septic system was 39’ from the lot line. Zoning Board granted Variance for septic system but I couldn’t start right away. In fall of 2000 started septic system.

5. At that time, I thought it made a lot of sense to do two things at the same time. (garage and septic) Came to see Ray Simard on November 6, 2000 and Ray was covering for Bruce Vaal. Used the same information as previously. (Lot size was 150’ x 150’) There was no problem, and I was issued a Building Permit for the garage.

6. Site work for garage was done in mid to late December of 2000. Garage was started, roof was on, etc.

7. Around the second week in December, Bruce Vaal came down and inspected it and said “go ahead and close up”. Bruce and I walked the property just after Christmas time. Then I completed the garage with the exception of the siding and driveway.

8. Bruce Vaal called me the second week in January regarding the question about the lot size. Instead of the lot being 150’ x 150’, the lot was 150’ x 100, thus creating a setback problem for the garage.

At this point in the meeting, (7:15 p.m.) Scott Ives, Alternate arrived.

9. At this point, Bruce advised me to apply for a Variance because of the setback problem.

10. I started looking at the Equitable Waiver and felt this applied to me. The garage was substantially completed. At this time, Bruce Vaal gave me a direct order to stop work on the garage. I did exactly that. No more work was done on the garage at that point. I followed his instructions to the letter. At that point, I made application for Equitable Waiver.

11. Stated he has been through two Zoning Board hearings and obtained four Building Permits. He was shocked when there was a problem.

12. Stated he felt there is no question but what the Equitable Waiver applies to him in this instance.

John Trottier – Asked the applicant if he had ever had his lot surveyed by a Registered Surveyor.

T. Migneault stated that he had not. He had used the deed, etc. Stated it was an honest mistake. When he purchased the property, he brought the deed and other stuff to his attorney. Stated there was a lot of other people involved in this. Stated he would like to rectify the situation. Would like to live within the rules and regulations of the Town. He stated he has invested $15,000 into the project. He had copies of invoice from Home Depot, etc. There is no siding on the garage and the driveway is not complete. The garage is now 28’ from the rear lot line. (Back side) This is what he needs the Equitable Waiver for.

John Herlihy asked how did they find out the lot was 150’ x 100’ instead of 150’ x 150’.

Bruce Vaal, Building Inspector, stated that a concerned neighbor brought it to his attention. Stated that the neighbor thought Mr. Migneault’s lot size was in error. Checked into previous permits and maps. Stated the Town Tax maps are not the most accurate. It looked okay to the Building Inspector. Mr. Desmarais pursued the issue and this is how the final lot size was determined.

Abutters were read as follows and noted all had been notified by certified mail:

Mary Beaubien – Not Present

Thomas/Cassandra Zorawowicz – Not Present

Walter/Ann Mullen – Not Present

Dunbarton Cottage Trust, Ruth Deangelis – Not Present

Roland/Rita Brooks – Not Present

Orville/Doris Cunningham, Trustees of Cunningham Revocable Trust – Not Present

Linda Mikol – Not Present

Other members of the public:

Mark Desmarais – on the septic design submitted, what is the back line and side line? What is the dimensions of the septic system? The measurement is on this plan. How is the Equitable Waiver even being considered without a survey being done on the property. He doesn’t meet the setback on three sides. The lot has never been surveyed.

Scott Ives – Stated that one of his concerns about Gorham Pond is that “we have no clue” to what we have down there.

John Trottier – Stated that without an actual survey, he has told us previously that the lot is 150’ x 150’ and now the lot is 150’ x 100’.

Scott Ives – Deed or not, all the deed does is show the general public whether the deed fees have been paid etc. When we deal with things at Gorham Pond we should know the correct lot size. We have been approving things and it is 9’ short of what we thought it was.

Tony Migneault - Stated that Civil Engineer had done the septic plan and came up with lot sizes, etc.

John Herlihy – Asked if Civil Engineers can also hold a surveying license.

John Trottier – Stated that this is not a survey done by a Registered Surveyor. We should be consistent.

John Herlihy asked where the 150’ came from.

T. Migneault stated that this was a legitimate error. There were four building permits issued and two Zoning Board Hearings

John Herlihy asked Ray Simard if he agreed with what Tony Migneault was saying.

Ray Simard stated that everything Tony Migneault had said was correct. This has been a continuing mistake. Stated that the Town records for Gorham Pond lots are very vague. There are miscalculations in this area. Tony is one of the owners that have had problems. There are others also that have had problems.

Scott Ives – We should expect verification on these small lots at Gorham Pond.

The question came up about lots the Town had sold at Gorham Pond and if they had been surveyed before selling.

Scott Ives stated they had not been surveyed but this was a different situation. These lots was sold as unbuildable lots and were sold “as is”.

Mark Desmarais – Since he (Mignault) has brought it up, on septic design which was done on 5/16/99, this lot was 150’ x 100’ on plan. When he submitted the plan, it showed 150’ x 150’ someone has got to have been “on another planet” to believe that one.

Tony Migneault – Stated that after the print for the septic system was done, other figures were added in at a later time, can clearly see where these notes have been added to the plan. These figures do not go back to 5/16/99 and I am sure of that.

Mark Desmaris – If he could draw to scale two weeks ago, he could have drawn to scale two years ago. Stated that this was a deliberate act to meet a setback on the part of the Building Inspector.

At this point in the public hearing, the Chairman read the requirements for an Equitable Waiver as follows:

(a) That the violation was not noticed or discovered by any owner, former owner, owner’s agent or representative, or municipal official, until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value

Applicant stated he had been issued four Building Permits and gone through two Zoning Board Hearings prior to this error was discovered , and we were all concerned with doing things the right way. There were no discrepancies. The applicant is looking to do things by the law.

(b) That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner’s agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owner’s agent, or by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;

Applicant stated that they all thought what was presented was the “right stuff”. There was no malice or intent on the part of anyone. This was caused by a good faith error in measurement.

(c) That the physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property; and

The Board established that this does not constitute a public or private nuisance, nor diminish the value of property, etc. This was an honest mistake.

(d) That due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected.

The applicant stated he had spent a lot of money. Stated they had made improvements in the property since they had purchased it. We continue to do things to improve the property. The neighborhood is coming up. This was a typical good faith mistake.

The applicant stated that the ultimate goal is for wheel chair accessibility but he did not want this to be the precedent which the Board uses.

At this point, Terry Swain noted that the applicant had stated the garage was 85% completed. What evidence did he have to show this fact. The applicant presented receipts for what he has spent, along with a bill from his supplier. Has spent over $14,000 to date on the project. The building is up, the roof is on, the windows and doors are in. There is no siding nor grading on the property.

At this point in the public meeting, Bernier Baston, a neighbor, stated that the building is completed with the exception of the siding being on.

Mark Desmarais – Stated that he thinks if you look at the record, you will find that Bruce Vaal knew that the garage was in violation. If you used the measurements submitted, it would be on the neighbor’s front of house. Bruce dragged his feet so he could get the building completed.

Mark Desmarais – Speaking of the driveway, that you should know the well is in the middle of the driveway and sits about 2” up from the ground. You are concerned about other wells in the neighborhood.

Gloria Paully - Stated that the measurements were taken from the middle of the original road. When it was found that the Town encroached upon the Migneault lot, the Selectmen gave the approval to take the measurement from that point. This is recorded in the Selectmen’s minutes in the prior year. This falls under some state law that you can’t change this once it occurs over a long period of time. The Selectmen gave him permission to use this as a mark. (The Town Plow had gradually encroached onto the Migneault property over a period of years by “cutting the corner”, thereby causing the situation. )

Mark Desmarais – Stated this is a perfect example of why this Board and the Building Inspector should have lots surveyed.

At this point, the public hearing was closed at 7:50 p.m.

DISCUSSION:

John Trottier stated he felt there was a lot of honest mistakes. Felt we do need a physical survey of the property before we grant this Equitable Waiver.

Scott Ives stated he would concur. Stated we learn something every month we sit here on this Board. With this particular group of properties, we don’t know where they start and stop. Before we grant an Equitable Waiver we need to make sure we know the bounds.

John Herlihy – Stated he totally agreed with John Trottier. It will protect the owners of the property.

John Van – Stated it was in everyone’s best interest to have a survey.

Terry Swain – Stated that if there is a problem down the road, the applicant can always come back.

John Herlihy stated that “it is a nightmare down there”. Side lines and back property lines are always in question.

David Nault – asked if an Equitable Waiver required dimensions. It was established that it did not.

It was noted that if the Board determines that the applicant proves (a), (b), (c) and (d) apply, then the Equitable Waiver can be granted.

David Nault – Stated he felt the applicant has answered the four criteria for granting a Waiver.

Alison Vallieres – Stated that the Board had required Rene Nobert to have a Registered Surveyor stamp his plan of property lines for an Equitable Waiver and that we should be consistent in our granting approvals.

Terry Swain noted that Nobert had come before the Board on his own trying to straighten things out and the Board had made that request of him.

David Nault – Stated he didn’t think a registered survey would change things at all.

At this point in the discussion, the Chairman noted that the following members were be voting on this application:

Terry Swain, Alison Vallieres, Gertrude Dulude, John Trottier and John Herlihy

MOTION (First)

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the public hearing for the request from Anthony Migneault for an Equitable Waiver to allow garage to remain which was designed to provide accessibility to a handicap (wheelchair) vehicle closer than the required 50 foot setback at his property on 1 Holiday Shore Drive in the Low Density District in Dunbarton, NH until a plan done by a Registered Surveyor is presented to the Board.

Alison Vallieres seconded the motion.

Discussion:

Terry Swain noted that the applicant had addressed the appropriate items for an Equitable Waiver and that a survey of the lot would not change his vote one way or the other.

The motion was defeated with the following vote:

Yes – Alison Vallieres, John Trottier

No – Gertrude Dulude, John Herlihy

The tie was broken by the Chairman Terry Swain with a No vote, therefore the motion was defeated.

MOTION (Second)

Terry Swain made a motion that the Dunbarton Zoning Board of Adjustment Grant the request from Anthony Migneault for an Equitable Waiver to allow garage to remain which was designed to provide accessibility to a handicap (wheelchair) vehicle closer than the required 50 foot setback at his property on 1 Holiday Shore Drive in the Low Density District in Dunbarton, NH.

John Herlihy seconded the motion.

The motion passed as follows:

Yes – John Herlihy, Gertrude Dulude.

No – Alison Vallieres, John Trottier

The tie was broken by the Chairman Terry Swain with a Yes vote, therefore the motion passed.

8:00 p.m. – CONTINUED PUBLIC HEARING FOR A REQUEST FROM GARY BERNIER, ATTORNEY, REPRESENTING ZZD DEVELOPMENT COMPANY REQUESTING AN EQUITABLE WAIVER TO ALLOW STRUCTURE TO REMAIN APPROXIMATELY 38 FEET FROM THE LOT LINE WHERE 50 FEET IS REQUIRED IN THE LOW DENSITY DISTRICT ON STARK HIGHWAY NORTH (ROUTE 13) IN DUNBARTON, NH

At this point in the public hearing, members Gertrude Dulude, John Trottier, John Van, John Herlihy and Alison Vallieres stepped down from the Board.

Alison Vallieres asked Attorney Bernier if he had any objections to her continuing to take minutes but not participate in any discussions, etc. Attorney Bernier agreed.

The members who will be acting on this request are as follows:

Scott Ives, David Nault and Terry Swain.

Attorney Gary Bernier appeared before the Board and presented information and evidence as requested by the Dunbarton Zoning Board as follows:

1. Transaction report from the Bank showing check #539 in the amount of $2,500 payable for payment of labor to Messina had been cashed on October 2, 2000. (attached) Bernier noted this was the same day that the Cease and Desist Order had been issued.

2. Three estimates of removing the foundation and replacing it

a. David Bouchard $4,750 (attached)

b. Geddes Building Mover, Inc.$13,350 (attached)

c. William Boisvert & Sons, Inc. $17,450 (attached)

3. What the foundation cost.

a. Dulac Concrete Foundations $7,470 (attached)

b. T & M Concrete, Inc. $8,300 (attached)

c. Demoliton Estimate includes tipping fees for disposing in Concord $17,450 (see above Boisvert & Sons estimate)

4. Once building is moved to meet setbacks, it will be on top of existing well. Therefore estimates for cost of replacing well as follows:

a. Tasker’s Well Company $5,889 (attached)

b. Comac Pump and Well $5,540 (attached)

c. Contoocook Artesian Well Company $5,403 (attached)

5. Estimate from Mr. Jacques Belanger for surveying costs to remedy problem working in cooperation with Walkers $2,060 (attached)

6. Market Value of Property when property is fully developed.

Attorney Bernier stated that market value doesn’t have anything to do with the property. The cost of completing the project. Don’t have a copy of an appraised value. Market value doesn’t really determine substantial completion. The cost of what is done now is what matters.

7. A copy of the map which is readable showing the Voluntary Merger.

Map is readable as submitted.

At this point in the public hearing, Attorney Bernier stated this is a fairly new statute and it has to be around a while before we have past history and other appeals to look at . Substantial has been used in other contexts. Court has been specific in that it can be less than half. Substantial does not mean more than half. Court has held that it be less then half. A case where someone has spent $25,000 and applied for an Equitable Waiver and you folks say, well yes that is substantial. I think that was what the legislature was getting at. Significant value. Another case was Nick Holmes. He put $25,000 into the project which wasn’t complete but you found that was enough to give them an Equitable Waiver because of the amount of money, this is no less substantial.

8. Copy of Building Permit that will show us where the property lines were at the time when the house was built on the property.

a. Copy of Plot Plan that was submitted with the Building Permit.

Bruce Vaal, Building Inspector, presented the original building permit with attachments along with the original State approved Septic design permit. (attached) Bruce Vaal stated that the plan used for the Building Permit application was the septic system design plan.

At this point in the discussion, Terry Swain asked how deep the well was and where it was located on the property.

Mark Desmarais stated the well was 360 feet deep and they hit ledge at 60-80 feet.

At this point Attorney Bernier stated that the concrete still has to go to Portsmouth to be disposed of because of steel in it.

It was noted by the Board that there were no invoices of cost of materials being delivered to the property with dates of delivery submitted by the applicant as requested by the Board.

At this point in the public meeting, Bruce Vaal, Building Inspector, stated that the foundation may be able to be buried on the site. There are not that many steel bars, etc. This is not a big issue to take apart and may be able to be taken to our own Town Dump.

At this point, Attorney Bernier asked if John Herlihy were a member of the Dunbarton Zoning Board of Adjustment. Terry Swain stated he was. Attorney Bernier questioned his speaking with a Town Official (Building Inspector) during this public hearing process.

John Herlihy stated that he was only stating the Brian Little, Supervisor of the Dump, would be able to answer question regarding disposal of concrete, etc. at the Town Dump.

9. Establish the date from Jacques Belanger’s notes as to when Mark Desmarais became aware of a problem.

a. Jacques Belanger, Surveyor, stated he looked at his records. Did not have any paperwork to substantiate when he spoke to Mark Desmarais. Did meet with John and Phil Walker on 9/28/00 . There was a two week period of discussion. He spoke with Mark before he met with the Walkers. Met with Bruce Vaal on October 2, 2000.

Scott Ives – Asked if Mark ever talked with you before your meeting with the Walkers.

Jacques Belanger – mid September or so, spoke after I ran into Walker’s survey crew members. I ran my own checks.

Attorney Bernier stated that October 2, 2000 was the same date that the $2,500 check for labor was cashed.

At this point, the Board added up the invoices for removal of the existing foundation and building. The total was $35,085.

Terry Swain asked what the date of the Building Permit was. It was established the date was 5/9/00.

The Building Inspector stated that the original application for the Building Permit included the plan used for the septic design.

At this point, all original exhibits were turned over to the Secretary for the record.

At this point in the meeting, James Walker asked to be recognized.

At this point in the meeting, Mark Desmarais was removed from the meeting because he was in violation of his restraining order. Chief Jeff Nelson removed Mr. Desmarais.

James Walker - Stated that his son Phil was out of the country for two weeks and his other attorney was not present at this meeting. Not unreasonable to ask that this structure be moved. This is a “moving target”.This is not the most important issue to me. The structure should not be there. We have made our objections this spring and summer. Appealed the granting of the original building permit and the Town did nothing. The Town may have incurred some liability. Mr. Desmarais made an appeal in October. These things need to be dealt with. Hill vs. Chester. If, in fact, the Building Permit was issued in error, don’t compound the error by granting an Equitable Waiver.

DISCUSSION:

At this point, the Chairman read the requirements of the granting of the Equitable Waiver and the Board address them as follows:

(a) That the violation was not noticed or discovered by any owner, former owner, owner’s agent or representative, or municipal official, until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;

Scott Ives – Stated that he felt that Mr. Desmarais had been notified by several different people from testimony from abutters. If I wanted to build a large structure and abutters tell me there is a problem with the boundaries, a reasonable person would check further. There was indications there was a problem. I don’t feel the applicant meets the requirements of (a).

David Nault – Stated that he sells building materials, and he is looking more at substantial investment of $35,000. Overall costs of $35,000 from my opinion would be 1/3 of the cost of the project. Substantial completion should be at least one half. I think that looking at that, the foundation might have been capped when ZZD was notified on 10/2/00. I don’t feel that he meets the requirements of (a).

Terry Swain – I guess my summation of (a) was the applicant was issued a Building Permit on May 9, and submitted information to the Building Inspector stamped by a Licensed Surveyor. If I had an abutter telling me I was not in compliance, I don’t think this would weigh much, and I would move forward as the applicant did. Don’t feel that anyone maliciously made a mistake. The Building Permit showed no misrepresentation. Cost is $35,000 to move this building forward 12 feet. I guess I don’t think anyone maliciously did anything and feel the applicant does meet the criteria of (a) for an Equitable Waiver.

(b) That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner’s agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owner’s agent, or by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;

David Nault – Stated he was in agreement that the applicant does meet the requirements of (b), in his opinion.

Scott Ives – I Don’t agree. I feel we have substantial testimony and that Mark Desmarais knew there was a problem. Feels that a reasonable person would have pursued the issue. Failure on the part of the applicant to make sure that his proposed project was in compliance. Have had applicants come to the Board after ten years with requests for Equitable Waiver but it seems to be the only time Mark Desmarais makes an effort is when the Town says “Cease and Desist”. I don’t feel that he has met (b) for the Equitable Waiver.

(c) That the physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property; and

Terry Swain – Don’t see where locating this house where it is would diminish property values in the area. I feel the applicant does meet (c).

David Nault – We have heard substantial testimony from the rear property owner and this house does encroach on his property. Even if he were to build with a 50 foot setback, it may affect his property value at some point. Not much of a private nuisance, but I feel it will affect the property owner’s value of his property.

Scott Ives – Stated he agreed that there may be some diminution. I would have to have an objective testimony criteria, but the applicant meets (c) in his opinion.

(c) That due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected.

Terry Swain – It was been established that we are talking about $35,000 to correct this thing. To me that outweighs any public benefit by this house being slide forward 12 feet. I don’t believe that ignorance of the facts is a violation. The applicant gets a Building Permit and proceeds with his project. Hired a Registered Survey to do a licensed survey, put the stakes in the ground and he proceeded with his project. We have heard testimony from the neighbor, but he was never officially notified until October 2, 2000 An error was made.

Scott Ives – I don’t dispute the facts, I feel the surveyor made an erroneous mistake from what was available. The surveyor did notify Mark Desmarais in mid-September there was a problem. Why would you further proceed without any further investigation of the bounds. It seems to me that a reasonable person would do this before they proceed with framing a house up. We have testimony of the abutters and the people who worked with Mr. Desmarais. Lots of different competing pieces of evidence. The builder should have come back and checked the information, not once but several times, they talked with abutters.

David Nault – The foundation was in and capped. You can take off the framing.

Scott Ives – Regarding good faith, should not have proceeded.

Terry Swain – How many times when an abutter approaches you, say you are drilling on my property, you have been hired to drill a well in a certain spot, have you stopped because an abutter has a problem.

Scott Ives - Noted that you need to go directly to the General Contractor of the project. If you are putting a house up and an abutter approaches you with problem, if your surveyor hadn’t come to you and say there was a problem, it would be different. Common sense tells me there is a problem. When you get that evidence several times you should check it out. In mid-September, he was still continuing with the project. Don’t feel it demonstrates good faith to the Town.

David Nault – Stated that most of the work was done by October 2.

MOTION: (First)

Terry Swain made a motion that the Dunbarton Zoning Board of Adjustment grant the request from Gary Bernier, Attorney, representing ZZD Development Company requesting an Equitable Waiver to allow structure to remain approximately 38 feet from the lot line where 50 feet is required in the Low Density District on Stark Highway North (Route 13) in Dunbarton, NH

There was no second to the motion so it died on the floor.

MOTION: (Second)

David Nault made a motion that the Dunbarton Zoning Board of Adjustment deny the request from Gary Bernier, Attorney, representing ZZD Development Company requesting an Equitable Waiver to allow structure to remain approximately 38 feet from the lot line where 50 feet is required in the Low Density District on Stark Highway North (Route 13) in Dunbarton, NH because the request does not meet all four of the criteria necessary for the granting of an Equitable Waiver.

Scott Ives seconded the motion.

DISCUSSION:

David Nault – Stated he did not feel the request met all four of the requirements of the Equitable Waiver.

The vote was as follows:

Yes – Scott Ives, Yes – David Nault, No – Terry Swain.

The public hearing was closed.

CONTINUED PUBLIC HEARING FOR REQUEST FROM RENE AND RUTH NOBERT FOR AN EQUITABLE WAIVER TO ALLOW EXISTING HOUSE TO REMAIN WITHIN THE 50 FOOT SETBACK (48’ 8”) AT PROPERTY LOCATED ON 1013 MEADOW LANE IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

At this point in the meeting, John Herlihy stepped down from the Board.

The Chairman noted the following members would be voting on this request.

Scott Ives, Alison Vallieres, Gertrude Dulude, Terry Swain and John Trottier

Rene Nobert appeared before the Board and presented the evidence the Board had requested at their previous meeting regarding the property. The tax assessment card indicated the house had been building in 7/10/89 thereby being 12 years old. (attached) In addition, the Selectmen had written a letter indicating they had determined that the violation has existed for ten years or more and that no enforcement action, including written notice of violation, has been commenced against the violation during that time. (attached)

It was noted by the Board that the request for an Equitable Waiver would fall under II. of the Statute which reads as follows:

II. In lieu of the findings required by the board under subparagraphs I(s) and (b), the owner may demonstrate to the satisfaction of the board that the violation has existed for ten years or more, and that no enforcement action, including written notice of violation, has been commenced against the violation during that time by the municipality or any person directly affected.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment grant the request for an Equitable Waiver from Rene and Ruth Nobert to allow existing house to remain within the 50 foot setback (48’ 8”) at property located on 1013 Meadow Lane in the Low Density District in Dunbarton, NH.

Gertrude Dulude seconded the motion.

DISCUSSION:

The Board noted that Rene Nobert had presented evidence that this was a reasonable error and the house had been built for over ten years .

The motion passed unanimously.

The public hearing was closed.

PUBLIC HEARING FOR REQUEST FROM OWEN R. BELLOWS FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW HIM TO CONSTRUCT A PORCH CLOSER THAN THE REUIRED 50 FOOT SETBACK AT HIS PROPERTY ON 1215 MONTALONA ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Owen Bellows appeared before the Board with a blown up copy of the tax map showing where he proposed to construct a new porch. He stated he had torn the old porch (8’ x 14’) down but that the new porch would extend beyond where the old one had been. Thus the need for a Variance.

David Nault – Indicated that he knew the property and the old porch was in a state of disrepair and needed to be torn down.

The Board indicated they needed to see a plot plan of the property with the appropriate setbacks done by a Registered Surveyor before they could act on the request. All corners should be defined.

MOTION:

Scott Ives made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for Request from Owen R. Bellows for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance to allow him to construct a porch closer than the Required 50 foot setback at his property on 1215 Montalona Road in the Low Density District in Dunbarton, NH

The motion was seconded by Alison Vallieres and passed unanimously.

CONTINUED PUBLIC HEARING FOR REQUEST FROM THE DUNBARTON CONGREGATIONAL CHURCH FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW THEM TO DRILL A WELL WITHIN THE 75 FOOT SETBACK LINE AT PROPERTY LOCATED ON STARK HIGHWAY NORTH IN THE VILLAGE DISTRICT IN DUNBARTON, NH

The Chairman noted the following members would be voting on this request:

David Nault, Alison Vallieres, John Trottier, Scott Ives and Terry Swain

Jacques Belanger, Surveyor and representative for the Dunbarton Congregational Church appeared before the Board with a complete plan showing the proposed location of the well and septic system.

The Board noted that David Nault and Alison Vallieres had gone to the site walk.

The Board noted that a well which is within 50 feet of the State ROW ditch will not qualify for salt contamination, etc.

A non-conforming release form is for lots that cannot comply with the 75’ setback from the property lines. This will be required for this well.

Alison Vallieres stated that requirements for additional casing into bedrock and grouting of the well should be required in order to be consistent with other cases of a similar nature if the request is granted.

The Board noted that the New Hampshire Code of Administrative Rules under RSA 485-A:30-b and Env-We 602.05 Well Location et seq. (attached)

It was also noted for the record that the Board had requested that the culvert be diverted beyond the well location. This note appeared on the plan.

Abutters were read as follows and noted that all had been notified by certified mail:

John R. Swindlehurst Revocable Trust – Not Present

James Young – Not Present

Richard/Heidi Snook – Not Present

James Colbath, Trustee, James Colbath Revocable Trust – Not Present

Dorothy/Sam Abram – Not Present

Town of Dunbarton –

MOTION:

Scott Ives made a motion that the Dunbarton Zoning Board of Adjustment grant the request from the Dunbarton Congregational Church for a Variance to Article 4. Section B. of the Dunbarton Zoning Ordinance to allow them to drill a well within the 75 foot setback line at property located on Stark Highway North in the Village District in Dunbarton, NH with the conditions that all of the requirements of New Hampshire Code of Administrative Rules We 602.05 be met, the culvert be extended beyond the well and a copy of the signed non-conforming well location release form be recorded with the approval.

Alison Vallieres seconded the motion. The motion passed unanimously.

The public hearing was closed at 10:15 p.m.

OTHER BUSINESS

At this point in the meeting, a discussion about the next meeting date was held. It was determined that the June meeting of the Dunbarton Zoning Board of Adjustment will be held on Monday, June 18, 2001.

There being no further business, the meeting adjourned at 10:30 p.m.

Respectfully submitted,

Alison R. Vallieres