Dunbarton, NH - June 18, 2001, Board of Assessors Minutes

DUNBARTON ZONING BOARD OF ADJUSTMENT

MONDAY, JUNE 18, 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

John Trottier, Vice-Chairman

Alison R. Vallieres, Secretary

Gertrude Dulude

David Nault, Alternate

John Van, Alternate

Scott Ives, Alternate

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

A motion was made by John Trottier to accept the minutes of the May 14, 2001 meeting as written. The motion was seconded by Scott Ives and it passed unanimously.

AT THIS POINT IN THE MEETING, THE CHAIRMAN ANNOUNCED THAT THE ARBUTUS FARM REQUEST FOR AN EXPANDED SPECIAL EXCEPTION WOULD NOT BE HEARD THIS EVENING. IT WILL BE HEARD AT THE NEXT REGULAR MEETING OF THE DUNBARTON ZONING BOARD OF ADJUSTMENT ON MONDAY, JULY 9, 2001.

7:00 P.M. – PUBLIC HEARING FOR REQUEST FROM LOUIS J. PICHETTE FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW HIM TO REPLACE AN EXISTING LEACH FIELD AND WAIVE THE 50 FOOT SETBACK REQUIREMENT BECAUSE THE LOT WIDTH OF 100 FEET AT HIS PROPERTY ON 14 GARY ROAD AT GORHAM POND IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Louis Pichette appeared before the Board with a copy of a plan that had been done by a septic system designer hired by the previous owner, Tom Wilson. The plan had been done the previous year.

Mr. Pichette stated that he needed to replace the existing system because it had failed. He stated that because of the narrow lot, it was necessary to obtain a Variance. He stated the lot is 85 feet wide and Dunbarton has a 50 foot setback making it impossible to meet the setback for the new system.

At this point in the public hearing, the Board noted that they require a statement from the Dunbarton Health Officer stating that the system has failed. Mr. Pichette asked if the septic designer’s statement was sufficient and the Board noted that they had required all other applicants to obtain a written statement from the Dunbarton Health Officer regarding a failed system.

John Trottier noted that the test pit had been dug a year ago.

Mr. Pichette stated that he had purchased the property at a foreclosure sale and needs to replace the failed septic system before selling the property to a new owner. He stated that purchasing properties and fixing them up for resale is his business.

Terry Swain also stated that the Board would like to see the locations of neighbors wells and how far away they will be from the new system. In addition, the Board needs to see accurate measurements on the plan regarding property lines, etc.

At this point in the discussion, the Board pointed out to Mr. Pichette that they would continue the public hearing until next month when he obtains the necessary information as follows:

1. Survey of the property with accurate distances for bounds and setbacks including other wells in the area.

2. Letter from the Dunbarton Health Officer stating system has failed

3. Location of other wells in the neighborhood in relation to this lot.

At this point in the meeting, Terry Swain noted the following would be voting members for this particular case:

Alison Vallieres

Gertrude Dulude

Terry Swain

John Trottier

David Nault

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for the request from Louis J. Pichette for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance to allow him to replace an existing leach field and waive the 50 foot setback requirement because the lot width of 100 feet at his property on 14 Gary Road at Gorham Pond in the Low Density District in Dunbarton, NH. The motion was seconded by Gertrude Dulude and passed unanimously.

At this point in the meeting Mrs. Nicoloro stated she had not received a notice of the meeting. The Secretary check the list of abutters and it was noted that Mrs. Nicoloro’s address had been given as Gary Road in Dunbarton, NH whereas she receives her mail at her Massachusetts address. She changed the address on the list of abutters for the Secretary for notification for the next meeting. In addition, she stated she had concerns because of the location of her well. She stated her property had drain off from the adjacent one, etc. and wanted to tell the Board her story of the situation.

The item will be on the agenda at the July meeting as a Continued Public Hearing.

7:15 P.M. – CONTINUED 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

Jacques Belanger, Surveyor, appeared before the Board on behalf of Mr. Bellows. He presented a signed statement from Owen Bellows stating that he could act on Mr. Bellows behalf.

Jacques Belanger presented a plan showing the proposed location of the porch and accurate measurements for setbacks. (attached)

He stated that there had been a previous “mud room” (8’ x14’) which was attached to the house. This had been taken down recently in order for the porch (8’ x 36’) to be put on. The new porch will not be any closer to the right of way of Montelona Road that the previous “mud room”.

A picture of the house with the existing “mud room” was presented to the Board for evidence. (attached)

It was noted that this house was the former Rivard property and was known as the Nathaniel Colby House built in 1775 and appears on the Tour of Historical Awareness Committee.

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

Frena Jarosz – Not Present

Rose Dugrenier – Not Present

John/Mildred Moody – Not Present

At this point in the Public Hearing, Jacques Belanger, Surveyor, read the answers to the questions required for the granting of a Variance as written out by Owen Bellows as follows:

a. No diminution in values of surrounding properties would be suffered;

No diminutive in value of surrounding properties would be suffered….Currently a permit issued for the demolition of an enclosed porch at the front of the house (8’ x 14’) had lost its value and usefulness due to poor construction and age. It did not add value and detracted from this property and character of this 1775 antique Cape in the Low Density area with similar homes. A new full length porch with properly pitched roof would enhance the curb appeal and increase the value of this home and houses surrounding.

b. Granting the variance would be of benefit to the public interest;

Granting the variance would be a benefit to the public interest because the new porch would be built in the style of the period using modern building techniques. As this house is on the tour for the Historical Awareness Committee and enclosed in the Dunbarton Book “The Winds Blow Free”, it would be beneficial to show the public a reproduction of the style and usefulness conducive to the period.

c. Denial of the variance would result in unnecessary hardship to the owner seeking it;

Denial will result in an unnecessary hardship. Because of the haphazardness and style of the previous construction was detrimental to the condition of the house. To replace the existing porch with an exact replica would not correct the problems of water damage to the house from the buildup of ice and snow. A full length porch extending to the outside front corners of the house, with a properly pitch roof that extends above the eaves would diminish these problems to a minimum. From the photo you can see that the current porch resembles a mud room. To replace it with another mud room in the same footprint will not add value or usefulness to the house but may instead detract from it and surrounding homes in the community.

d. Granting the variance would do substantial justice; and

Granting the Variance would do substantial justice because it would be built in the style that is traditional in nature to the era in which the house was built (circa 1775). A full length porch would have been commonplace during this time. A new porch will enhance the value and usefulness of this home and others in the community.

e. The use would not be contrary to the spirit of the Ordinance.

The use would not be contrary to the ordinance because the basic footprint of the new porch will not change the one that is already existing. It will be recognized as an improvement over the current one in keeping with the tradition of style, form, and function that is synonymous with Yankee Know How and Frugality.

At this point in the discussion, Terry Swain pointed out that the NH Supreme Court has modified the standard for “unnecessary hardship” to “reasonable use of property”.

At this point in the public hearing, Terry Swain, Chairman, noted the following members would be voting on this request:

Terry Swain

Alison Vallieres

Gertrude Dulude

John Trottier

Scott Ives

DISCUSSION:

John Trottier noted that ¾ of the existing house is within the setback now and he does not see a problem with granting this Variance.

Scott Ives noted that the porch would enhance the value and is no greater encroachment to the lot line than the previous mud room.

Gertrude Dulude stated that it will look more like it would have back in the beginning.

Alison Vallieres stated that it would be an improvement to the existing house structurally to correct some of the problems with ice buildup, etc.

John Trottier stated there was no “down side” to the granting of this Variance.

MOTION:

Scott Ives made a motion that the Dunbarton Zoning Board of Adjustment grant the 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 with the condition that the porch be no closer than 14 feet from the right of way on the north side and no closer than 20 feet on the south side. The motion was seconded and passed unanimously.

The public hearing was closed at 7:45 p.m.

7:45 P.M. – PUBLIC HEARING FOR REQUEST FROM DIANE AND STEPHEN MACDONALD FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW THEM TO BUILD AN ATTACHEDD 14’ X 16’ DECK WITH A SHED ROOM CLOSER THAN THE REQUIRED 50 FOOT SETBACK AT THEIR PROPERTY ON 330 STARK HIGHWAY NORTH IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Stephen MacDonald, Owner, appeared before the Board and used the plan which had been submitted with his application. (attached)

The Board noted that this plan was not completed by a licensed surveyor but that it did include measurements as to lot size and distance from lot lines. The plan had been used for the septic system installation in 1989.

Scott Ives expressed concern about having to work with a plan that was not done by a licensed surveyor and wanted to have measurements exactly as they should be.

After some discussion, the Board determined that they would accept the plan to be used for this request.

Mr. MacDonald stated that his lot is 140’ x 120’. He would need a Variance for the proposed deck to allow him to build it 33.75’ from the north boundary. The existing house is presently 24’ from the north boundary.

Mr. MacDonald stated he wanted to have a shed roof over approximately 9 feet of the deck.

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

Alexander/Leslie D’Andreta – Not Present

Jennifer J. Ellserfeld – Not Present

Michael/Patricia Shearin – Not Present

Michel/Jacqueline Belanger – Not Present

Questions necessary for the granting of a Variance were answered by the applicant as follows:

a. No diminution in values of surrounding properties would be suffered;

Mr. MacDonald stated that he didn’t see any and this will increase value of his property.

b. Granting the variance would be of benefit to the public interest;

Mr. MacDonald stated that sooner or later, the Town will derive more tax monies from the property.

c. Denial of the variance would result in unnecessary hardship to the owner seeking it;

Mr. MacDonald stated that denial of the Variance would make a reasonable use of his property impossible. There would be no way to put a deck into the driveway and no way to put a porch except where he has proposed it.

d. Granting the Variance would do substantial justice; and

Mr. MacDonald stated he wasn’t quite sure what this means with regard to substantial justice. Felt this was a single family home and is allowed.

e. The use would not be contrary to the spirit of the Ordinance.

He stated that this is a single family home with a deck off the back which is a common thing. Don’t feel the ordinance was intended not to allow this type of use.

The Chairman noted that under the new NH Supreme Court guidelines for “Unnecessary Hardship” the standard should be replacing “unnecessary hardship” with “reasonable use of property”.

At this point in the public hearing, Terry Swain noted the following members would be voting on this application:

Alison Vallieres

Gertrude Dulude

John Van

Terry Swain

John Trottier

DISCUSSION:

John Trottier stated that the existing house was already within the setback and the deck will not be encroaching any further than his existing house. There are definite limitations on the parcel.

John Van stated that without major construction, the applicant could not do anything because of the setbacks.

MOTION:

A motion was made by Terry Swain that the Dunbarton Zoning Board of Adjustment grant the request from Stephen and Diane MacDonald for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance to allow them to build an attached 14’ x 16’ deck with a shed roof of 9 feet closer than the required 50 foot setback at their property on 330 Stark Highway North in the Low Density District in Dunbarton, NH , with exact setbacks to be no closer than 33.75’ from the north boundary as presented on the plan this evening. The motion was seconded by John Van. The motion passed unanimously.

The public hearing was closed at 8:00 p.m.

8:00 P.M. – PUBLIC HEARING FOR REQUEST FROM BRADFORD AND STEPHANIE J. KLEMENTS FOR A VARIANCE TO ARTICLE 4, SECTION C. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW THEM TO CONSTRUCT A SINGLE FAMILY DWELLING ON A PREVIOUSLY ESTABLISHED LOT WITH A RIGHT-OF-WAY UNDER RSA 674:41 AT THEIR PROPERTY LOCATED ON 30 STARK LANE IN THE MEDIUM DENSITY DISTRICT IN DUNBARTON, NH

Mr. Klements appeared before the Board with a plan showing the large parcel (48 acres) which has no frontage on Stark Lane but has access via a right-of-way which has been in existence since 1969 at least when the property was conveyed by Boyd and Sarah Maxwell. Mr. Klements had copies of deeds proofing that the right-of-way had been there in every deed which was conveyed. The deed specifically referenced access to the lot and did not restrict the access for logging, etc. only. In addition, this right-of-way provides access for a log cabin to the rear of this parcel. (Purselly Log Cabin)

Mr. Klements stated that he does not want to subdivide the parcel, only wishes to sell it to a member of his family for a single family home.

Mr. Klements referenced the requirements for a non-conforming lot as listed on page 18 of the Dunbarton Zoning Ordinance as follows:

C. Nonconforming Lots

1. Structures shall be permitted on a lot having frontage or an area which is less than that required by the Table of Dimensional Regulations if said structure is permitted by right within that district and if the following provisions are met:

a. The lot was a lot of record and duly recorded at the Merrimack County Registry of Deeds prior to the effective date (March 10, 1970) or applicable amendment of this Ordinance;

b. The lot is capable of supporting a well and septic system designed and installed in compliance with the Town of Dunbarton Water Pollution Regulations as well as all applicable New Hampshire Water Supply and Pollution Control Division regulations; and

c. All uses, buildings, structures, wells or septic systems shall comply with the setback requirements in the Table of Dimensional Regulations.

2. If two (2) or more lots of record are contiguous and in single ownership on the effective date of this Ordinance, and if any of said lots are vacant and do not comply with the dimensional requirements of frontage and area, then those lots shall be considered to be an undivided parcel for the purposes of this Ordinance.

3. No portion of said parcel shall be used or sold in a manner which diminishes compliance with frontage and area requirements established by this Ordinance, nor shall any division be made which creates a lot with frontage or area below said requirements. Further, yard dimensions and requirements other than those applying to area and frontage shall conform to the regulations for the district in which the lot is located.

At this point in the public hearing, the Chairman noted that he felt there was no need for a Variance, that the use was covered specifically within the Ordinance as stated above. He stated he will call the Building Inspector and notify him that a permit to build should be issued.

The public hearing was adjourned at 8:30 p.m.

REQUEST FOR REHEARING FROM ZZD DEVELOPMENT COMPANY EQUITABLE WAIVER APPLICATION; TAX MAP I3-3-13, Route 13

The Board received a request for a Rehearing from Attorney Gary H. Bernier on behalf of ZZD Development (attached).

At this point in the discussion, Terry Swain noted that the only members who would be voting or participating in this discussion would be the members who acted upon the request at the previous meeting as follows:

Terry Swain

David Nault

Scott Ives

The Chairman read the letter for the record.

Scott Ives stated he felt that members who had made the decision had been fair and that the Attorney had requested that the five other members not act on the request thereby preventing any others from hearing the case.

David Nault stated that he felt he himself had been very fair to the applicant in considering all requirements for the Equitable Waiver and that his view had not changed since the decision and felt the request for a rehearing should be denied. In addition, the Attorney was the one that requested that only three members look at this. He stated he wasn’t at any of the previous meetings when this was discussed and I got no feedback from other members of the Board.

MOTION:

Scott Ives made a motion that the request for a Rehearing from Attorney Gary H. Bernier on behalf of ZZD Development for an Equitable Waiver Application; Tax Map I3-3-13 be denied for the following reasons:

1. The decision was not unlawful or unreasonable; and the Board carefully reviewed the information and based their decision on careful review of the Ordinance.

David Nault seconded the motion. The motion passed unanimously.

The meeting adjourned at 9:00 p.m.

Respectfully submitted,

Alison R. Vallieres

Secretary