DUNBARTON ZONING BOARD OF ADJUSTMENT

MONDAY, SEPTEMBER 13, 2004

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 John Trottier presiding. The following members were present:

John Trottier, Chairman

John Herlihy, Vice Chairman

Alison Vallieres, Secretary

Gertrude Dulude

David Nault

Ron Slocum, Alternate

Dan DalPra, Alternate

Kenneth Swayze, Admin., Planning and Zoning Department

The Chairman verified with the Secretary that the meeting notice had been posted in three public places throughout the Town according to State Law in a timely fashion and published in the Concord Monitor for one day. In addition, the public notice appeared on the Dunbarton Web Page.

Approval of Previous Month’s Minutes: Monday, August 9, 2004

John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment accept the minutes of Monday, August 9, 2004 as printed. The motion was seconded by Gertrude Dulude. The motion passed unanimously.

Motion for ReHearing from Attorney Scott Hogan

At this point, Chairman John Trottier stated that the Board had received a communication dated August 10, 2004 from Attorney Scott Hogan (attached) appealing the July 12, 2004 decision of the Dunbarton Zoning Board of Adjustment regarding the Perry Approved Site Plan Review. The Dunbarton Zoning Board of Adjustment took no action on the motion within 30 days of the request and, therefore, pursuant to State Statute, the motion for rehearing is denied, IPSO facto..

7:00 P. M. – CONTINUED PUBLIC HEARING REGARDING A REQUEST FOR A VARIANCE TO ARTICLE 4. SECTION B. OF THE DUNBARTON ZONING ORDINANCE FROM BETH AND LEONARD LEMARCA (J2-1- 1 & 2) TO ALLOW THEM TO RE-CONFIGURE TWO NON-CONFORMING LOTS MORE EQUALLY. THESE LOTS ARE LOCATED ON 30 & 32 JEWETT ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH . (ONE LOT CURRENTLY DOES NOT MEET THE REQUIRED 300 FEET OF FRONTAGE. THE SECOND LOT DOES NOT MEET THE FRONTAGE REQUIREMENT OR THE AREA REQUIREMENT OF FIVE ACRES. BY ADJUSTING THE LOT LINES, THE SMALLER LOT WILL EXCEED THE MINIMUM STANDARDS REQUIRED BY THE NH DEPARTMENT OF ENVIRONMENTAL SERVICES SUBSURFACE DIVISION. BOTH LOTS WILL NOT MEET THE REQUIRED FRONTAGE OR AREA REQUIRED BY THE DUNBARTON LOW DENSITY DISTRICT)

Beth Lemarca, Applicant, and Jacques Belanger, Surveyor, appeared before the Board regarding the above request. Jacques Belanger presented a survey plan showing the property. It was indicated the reason the Public Hearing was continued at the last meeting was because of an error in the Public Notice as to the address of the property.

The applicant stated they had a buyer for the second property therefore they were requesting the Board to make a decision on the proposed Lot Line Adjustment Variance this evening if possible.

At this point in the meeting, Chairman John Trottier stated he had heard there was an apartment up over the existing garage on the Lemarca property. He asked the applicant if this was correct. The applicant stated Yes it was correct. There is an apartment over the garage.

Beth Lemarca stated they had gotten a Building Permit for the garage in 1998. At this point, Kenneth Swayze stated he had researched the Building Permit and it was given for the purpose of storing vehicles and there was not a permit for an apartment. The apartment was put in two or three years ago. There was no permits issued after 1998.

Beth Lemarca stated that the apartment was built for her son who is coming back home from the Marines. At the present time, it is being rented to another person for a three or four month period and the renter goes to Florida.

Beth Lemarca stated they would do whatever they have to do to clear this up. We have a buyer for the lot next door.

The Chairman indicated the apartment would have needed a Variance because of the acreage requirement

Ron Slocum asked if there was a request before the Board at this time for a Variance for the apartment. The Secretary stated there was none.

Jacques Belanger asked if the applicant were to file for a Variance this evening for the existing apartment, would the Board consider this a “good faith effort” and go ahead and act on the request for the Variance for the Lot Line Adjustment.

The Chairman indicated he felt the Board needed to address all the issues together and as far as he was concerned, he needed to get some answers from Town Counsel as to how to proceed with the issues. If the Board ignores the fact there is an apartment in the garage and goes ahead and grants the Variance for the Lot Line Adjustment, then the Board is not doing their job correctly. In addition, the Board needs to know if the existing septic system is adequate for the apartment and the house.

Beth Lemarca stated she had a copy of the septic plan. Jacques will work with the Lemarca’s to get the paperwork together including a copy of the approved septic plan.

Gertrude Dulude stated it was sort of shutting the barn door after the horse has left.

John Trottier stated that “all the cards need to be laid on the table before the Board makes any decision”.

Jacques Belanger, Surveyor, stated the Lemarca lot will end up with 3.84 acres of land instead of the present one acre if the Lot Line Adjustment has been approved by the Zoning and Planning Boards. He stated he felt the 3.84 acres would be able to support an adequate septic system for the house and apartment. He was unsure if the one acre lot would be sufficient.

At this point Kenneth Swayze explained Accessory Apartment versus Multi Family Housing. He stated that people presently are putting in accessory apartments in new houses because they are a permitted use according to State Law. When the unit becomes a Rental Unit, the Special Exception process kicks in. The Board indicated they had been hearing Special Exception requests for Accessory Apartments for some time.

John Trottier indicated the Board needs to seek Legal Counsel advice prior to proceeding any further.

Alison Vallieres stated it is up to the applicant as to whether they want to apply for a Rental Unit Apartment via Special Exception/Variance or whether they have an Accessory Apartment as described by Kenneth Swayze.

At this point in the discussion, Kenneth Swayze stated that there is another item which needs to be addressed which is the dredging of a small pond in back of the house without any Wetlands Permits.

Beth Lemarca stated they cleaned up the pond around the edges.

John Herlihy stated they need a Dredge and Fill Permit.

Jacques Belanger stated he would work with the applicants to go through the process of applying to Wetlands/Environmental Services for the permit for the pond.

John Trottier, Chairman, indicated the following members would be voting on this issue.

John Trottier

John Herlihy

Alison Vallieres

Gertrude Dulude

Dan DalPra, Alternate for David Nault who was not present at the first public hearing.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing regarding a request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance from Beth and Leonard Lemarca (J2-1-1 & 2) to allow them to re-configure two non-conforming lots more equally until the next meeting in October. The motion was seconded by John Herlihy. The motion passed unanimously.

7:15 P.M. – PUBLIC HEARING - REQUEST FOR A VARIANCE TO ARTICLE 4. SECTION B. OF THE DUNBARTON ZONING ORDINANCE FROM JOYCE RYAN AND ROBERT T. LEONARD (K1-03-10 K1-03-11) TO ALLOW THEM TO REPAIR AN EXISTING SEPTIC SYSTEM CLOSER THAN THE REQUIRED 50 FEET FROM THE BOUNDARY AT THEIR PROPERTY AND A SECOND REQUEST FOR A VARIANCE TO ARTICLE 5. SECTION D. FROM JOYCE RYAN AND ROBERT T. LEONARD TO ALLOW THEM TO REPAIR AN EXISTING SEPTIC SYSTEM WITHIN THE WETLANDS CONSERVATION DISTRICT AT PROPERTY LOCATED ON HOLIDAY SHORE DRIVE IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

John Trottier, Chairman, indicated the following members would be voting on the remaining requests:

John Trottier

John Herlihy

Alison Vallieres

Gertrude Dulude

David Nault

Robert Leonard, Joyce Ryan, Applicants and Tom Wilson, Septic System Designer appeared before the Board. Tom Wilson presented a plan which he did of the proposed septic system and layout. In addition, the applicants presented a plan done by Jacques Belanger showing the property with bounds, etc.

The applicants presented an Inspection Report from Dan’s Septic Inspections and Service stating that the leaching condition, etc. were in a poor/failed condition. (attached)

The Board requested that the applicants needed to put all the information regarding the proposed new septic system on the Certified Plot Plan done by Jacques Belanger. In addition, they need to show where the Wetlands Conservation District line is. This needs to be done by a Certified Soils Scientist in accordance with the zoning regulations.

The applicant indicated as they understood the situation, they would need the following for the next meeting:

1. Need to check for other wells across the street and put them on the plan with well radius

2. Need a Certified Soils Scientist to indicate where the Wetlands Conservation Line is located to determine where the 125 setback would be. This should be put on the Map.

3. Need dimensions and setbacks shown on the Map and well radius documented on the plan.

At this point in the meeting, members of the public were asked if they had input.

Anne Merrill, Lake Gorham Association – Stated the previous property owner had gotten a permit for the septic. Would that satisfy the requirements? She has nothing against repairing the septic system. She would be in favor of the repairing of the system.

The Board indicated the applicant needs to present the information to the Board as requested so the Board can act on the request.

Linda Michael – Present. Stated she had no problem with the repairing of the system.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing regarding the request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance from Joyce Ryan and Robert T. Leonard (K1-03-10 and K1-03-11) to allow them to repair an existing septic system closer than the required 50 feet from the boundary at their property and a second request for a Variance to Article 5, Section D. from Joyce Ryan and Robert T. Leonard to allow them to repair an existting septic system within the Wetlands Conservation District at property locate don Holiday Shore Drive in the Low Density District in Dunbarton, NH until the meeting in October. Dan DalPra seconded the motion. The motion passed unanimously.

7:30 P.M. – PUBLIC HEARING - REQUEST FOR A VARIANCE TO ARTICLE 4. SECTION B. OF THE DUNBARTON ZONING ORDINANCE FROM DIANE OUELETTE-FALKENSTEIN (D3-3-2) TO ALLOW HER TO MAINTAIN A DETACHED APARTMENT IN AN EXISTING BARN WITH AN EXISTING HOME ON LESS THAN THE REQUIRED SEVEN (7) ACRES OF LAND AT THEIR PROPERTY LOCATED ON 100 STARK HIGHWAY SOUTH AND FLINTLOCK FARMS ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Jacques Belanger, Surveyor, appeared before the Board on behalf of Diane Ouelette-Falkenstein regarding the request for a Variance. He submitted a letter of authorization to act on her behalf. (attached)

Jacques Belanger, Surveyor, explained the reason for the need of a Variance. He stated the parcel had been the first parcel which was subdivided from the Flintlock Farm subdivision. He stated the apartment had been in the barn for many years. The reason the applicants need the Variance is because if they break off a five acre lot from the 11 acre parcel, there remains only 6.89 acres to go with the existing house and apartment. This would require a Variance for insufficient acreage for the apartment.

At this point in the meeting, Kenneth Swayze stated that apartments in detached buildings would require another five (5) acres for a total of ten (10) acres instead of seven (7) acres. The Board did not feel comfortable in granting a Variance for this reason. They indicated the way the lot was now with eleven (11) acres as sufficient to support the apartment, but were not sure as to whether the Ordinance’s intent was to allow less acreage, etc.

At this point, Jacques Belanger stated that his client felt it was more important to be able to accomplish the subdivision of the eleven acres into two lots than to try to obtain the Variance. He also indicated that it did not look as though the Dunbarton Zoning Board of Adjustment felt inclined to grant the request for a Variance because of the smaller acreage than required by the Ordinance.

At this point in the public hearing, Jacques Belanger withdrew the request for a Variance from Diane Ouelette-Falkenstein (D3-3-2) to allow her to maintain a detached apartment in an existing barn with an existing home on less than the required acres at her property located on 100 Stark Highway South and Flintlock Farms Road in the Low Density District in Dunbarton, NH.

7:45 P.M. – PUBLIC HEARING - REQUEST FOR AN EQUITABLE WAIVER OF THE DUNBARTON ZONING ORDINANCE FROM JASON AND BETHANEE SYVERSEN (I1-01-13) TO ALLOW THEM TO CONTINUE TO USE AND MAINTAIN AN ARTESIAN WELL LOCATED CLOSER THAN THE REQUIRED DISTANCE FROM THE BOUNDARY AT THEIR PROPERTY LOCATED ON 27 NORTH WOODS ROAD OFF ROUTE 77 IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

There was no one present to represent Jason and Bethanee Syversen, therefore the following motion was made.

MOTION:

John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment table the request for an Equitable Waiver of the Dunbarton Zoning Ordinance from Jason and Bethanee Syversen (I1-01-13) to allow them to continue to use and maintain an artesian well located closer than the required

distance from the boundary at their property located on 27 North Woods Road off Route 77 in the Low Density District in Dunbarton, NH because there is no one present at this meeting on their behalf. The motion was seconded and passed unanimously.

Other Business: Jacques Belanger, Setbacks

Jacques Belanger, Surveyor, appeared before the Board and requested an opinion as to whether or not septic system effluent lines were considered a structure with regard to setbacks from property lines. He stated this was a case which was located within the Tucker Hill Subdivision. The lot included view easements which had been put on the plan after the home locations had been determined.

The Board reached a consensus that septic system effluent lines would be considered part of the septic system and would require a Variance if they were within the Setbacks.

There being no further business, the meeting adjourned at 8:45 p.m.

Respectfully submitted,

Alison R. Vallieres

Secretary