DUNBARTON ZONING BOARD OF ADJUSTMENT
TOWN OFFICES –
The regular monthly meeting of the Dunbarton Zoning Board 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
David Nault
Ron Slocum
Dan DalPra, Alternate
Wayne Bracy, Alternate
Kenneth Swayze, Admin., Planning
and Zoning
The Chairman verified with the Secretary that the meeting notice had been posted in three public places throughout the Town and published in the Concord Monitor for one day. In addition, the notice was on the Dunbarton Web Page.
Approval of Previous Meeting Minutes:
John Trottier amended the
minutes to reflect the correct name of the Surveyor for David Schroeder was Web
Stout and not Will Stout.
MOTION:
John Herlihy made a motion
that the minutes of the Monday, September 12, 2005 meeting be
accepted as amended. David Nault
seconded the motion. The motion passed
unanimously.
At this point in the Public Hearing, Dan DalPra stated that he was a personal friend of David Pellenz and also worked with him at the Boat Shop at one time, therefore he would be stepping down from the Board for the Pellenz Request.
Cherri T. Pellenz appeared before the Board on behalf of David Pellenz. She presented a Power of Attorney written by David Pellenz allowing her to act on his behalf. The Board noted that the Power of Attorney was written giving the agent the power to appear at the Planning Board instead of the Zoning Board. (attached)
After discussion and noting that
the Power of Attorney referred to a meeting to be held on
Cherri Pellenz explained the request for the Variance and stated they need the handicapped ramp for her mother who lived with them. She presented a copy of a previously submitted certified plot plan but which did not show the measurements from the right of way for the ramp and deck. Almost the entire house is presently within the setbacks.
Cherri stated that her mother was severely obese and weighed almost 350 lbs. In the past winter, the Dunbarton EMT’s have had to come to the house three or four times, and it was very difficult to get her mother out of the house. She stated she has to bring her to doctor’s appointments and blood work, etc. She stated all these health problems were related to her obesity. This past winter they were able to get a physician to make a house call but did not think this would be possible now because that particular physician has taken an extended maternity leave.
Cherri presented the plan showing the proposed deck which would be 6’ x 9’ and the ramp going along the side of the house which would be 24” wide going onto the existing driveway. She stated they would be putting gravel at the end of the ramp to the driveway. The deck was large enough to allow for turning with the “four wheeler handicap vehicle”.
Ron Slocum asked what doors they presently have for the house.
Cherri Pellenz stated they had looked at that option of using the other door The ramp would have to have two turnarounds and an extra long ramp because it was higher off the ground than the door they were proposing to use.
Ron Slocum asked if this plan would qualify as a Certified Plot Plan. The Board has insisted on a Certified Plot Plan from every other applicant in the past. This plan does not have actual physical dimensions for the deck and ramp. If we allow this to qualify, we are opening the door for everyone else in the future. I do not feel we should accept this as a certified plot plan.
At this point, David Nault stated that in the past we have not considered steps and covering of steps as part of the structure. I do not feel we should even be hearing this request this evening.
Kenneth Swayze, Building Department, stated that this structure is over 100 square feet and is within the setback. This is the reason she is here. She needs a permit for the American Disabilities, etc. and this is the only way the Building Department can issue the permit is if the Zoning Board of Adjustment grants the Variance.
David Nault stated this is just an entry way to her home. I don’t feel it is within our regulations. I don’t feel she needs to be here.
Ken Swayze noted the State will not do anything without a permit. This is the only way she will be able to get the permit. Because of the involvement of the Federal Government she needs the permit, and we can only give the permit if she is granted a Variance.
John Trottier stating that she needs a building permit, and they are encroaching on the setback. That is the reason she is here for the Variance.
John Trottier agreed with Ron Slocum that he felt the Board should adhere to the policy of requiring a Certified Plot Plan showing the correct dimensions for the deck and ramp.
Alison Vallieres stated the Board should stick to their requirement of having a Certified Plot Plan showing exact dimensions for the Variance. The Board has no way of determining what the exact distances would be from the ROW, etc. without one. We cannot make estimates. We should require a Certified Plot Plan like all other applicants.
Abutters were read as follows and noted all had been notified by certified mail:
Ralph Fellbaum – Not present
David/Jean Ilsley – Not Present
Anna Silva – Not Present
Daryl Hubbell – Not Present
Army Corps of Engineers – Not Present
Town of
Board Discussion:
John Trottier, Chairman, noted the following members would be voting this evening on this application:
John
Trottier
John Herlihy
Alison Vallieres
David Nault
Ron Slocum
John Trottier stated he would agree with both Ron Slocum and Alison Vallieres. Any time when a deck of anything is put on, we need a certified plot plan. Unless we are not going to grant this as a structure and go with it as a medical necessity. The next time someone owns your property, it will become a problem.
David Nault stated that we have never considered stairs as part of the structure in the past. To start now when this is clearly only large enough to turn the wheeled cart at the top of the ramp is not right.
Cherri Pellenz stated that the American Disabilities, etc. are the one who felt the deck had to be 6’ x 9’ but she could agree to cut it back to 6’ x 7’ if necessary.
David Nault stated that he knew that a legal handicapped bathroom has to be at least 5’ x 5’. Feel we are getting into a gray area by changing the size of the deck, etc.
Ken Swayze stated that this has to be built to Code. There are other reasons. We can’t grant a permit within the setback area without the Variance. Also once you start building “up”, you are within the Building Code. We have been told by Town Counsel that stairs and other structures do fall within the building code.
John Herlihy stated that if we don’t grant this conditionally, she would have to come back in November. This is a medical necessity. She has a plot plan here. As far as I am concerned, if you took measurements, I could vote for this tonight. Show me feet from here or there. There are others who have come to this Board without a certified plot plan and we have acted on it.
Wayne Bracy stated we should consider this tonight and get a plan done before a Building Permit is issued.
Ron Slocum stated we are opening up a whole new door if we accept this tonight. We weren’t able to get certified plot plan until last year. We are just hearing this thing in October. Where were they during the summer? This is opening up a whole new criteria.
Alison Vallieres stated she agreed with Ron Slocum.
At this point in the Public Hearing, the Board pointed out that there was a possibility of Cherri Pellenz being able to contact the Surveyor, Jacques Belanger, this evening and having him put the deck and ramp on the existing Certified Plot Plan and coming back to the meeting before the Board adjourned. The Board would be able to act on the request this evening if this occurred.
At this point in the public hearing, the Board requested the applicant to address the necessary criteria for the granting of a Variance as follows:
a.
No diminution in values of surrounding
properties would be suffered;
Answer: No, they would not suffer.
b.
Granting the variance would be of benefit to the
public interest;
Answer: Yes, the paramedics would appreciate the ramp, etc.
c.
Denial of the variance would result in
unnecessary hardship to the owner seeking it;
Answer: Very much.
d.
Granting the variance would do substantial
justice; and
Answer: Very much.
e.
The use would not be contrary to the spirit of
the Ordinance.
Answer: Yes, this would not be contrary to the spirit of the ordinance.
MOTION:
David Nault made a motion to
continue the Public Hearing to the next available date which would be in
November or possibly this evening if the applicant is able to come back to the
Board with a Certified Plot Plan. John
Trottier seconded the motion. The motion
passed unanimously.
PUBLIC HEARING
REGARDING A REQUEST FROM DUNBARTON 88, LLC (SUMMERHILL CONDOMINIUMS) (B3-2-1,
B4-1-11, A4-1-15, A3-1-4) FOR TWO
VARIANCES TO ARTICLE 6, SECTION F (2) (b) AND F (2) (d) TO ALLOW THEM TO ESTABLISH A COMMUNITY SEPTIC
SYSTEM WHICH IS SERVICED BY A SEPTIC TANK THAT SHALL SERVE MORE THAN TWO (2)
UNITS AND WHICH HAS AN EXTRA CONSTRUCTION LEACHING CAPACITY OF LESS THAN FIFTY
PERCENT OF THE DESIGN SIZE REQUIRED BY THE NEW HAMPSHIRE WATER SUPPLY AND
POLLUTION CONTROL DIVISION, BUT WHICH
WILL STILL REQUIRE APPROVAL FROM THE DIVISION AT PROPERTY LOCATED OFF ROUTE 13
IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH
Dan DalPra stepped back to the Board.
John Trottier verified the fact that Jacques Belanger was the Surveyor for the project.
At
this point in the meeting, John Trottier read the following statement with
regard to his serving on the Board:
“In accordance with the Town of
As a member of the
Town of
Both the applicants and all members of the Board had no problem with John Trottier serving as a voting member on this request.
At this point in
the meeting, Ron Slocum stated that he has a client/customer relationship with
Attorney Uchida’s Office. He stated he
did not feel this would interfere with his acting on the application but would
be willing to step down if any members of the Board or the applicant felt it
would be necessary.
Both the
applicants and all members of the Board had no problem with Ron Slocum serving
as a voting member on this request.
Attorney Richard
Uchida introduced himself and stated that he represented the applicants, Dunbarton
88, LLC (Summerhill Condominiums). He
provided the Board with a little bit of background about the project.
1.
Noted the
applicants were granted a Special Exception to allow a PRD consisting of 88
units on 244 acres of developable land.
Noted there were originally 52 single units, 6 quads and 6 duplexes for
a total of 88 units.
2.
Also allowed
existing golf course to continue operation.
3.
Variances
granted for building within the 100 foot setback lines.
4.
Stated they
have been in front of the Planning Board since spring of 2005.
5.
Stated they are
now proposing 41 single units and 21 duplexes.
The quads are gone. Ultimately,
we may have to come back to the Board because the number of units has
decreased.
6.
The two
variances requested related to the septic requirements. Dunbarton’s PRD Ordinance states that no more
than two residents or building are allowed to tie into a single tank. We actually have a community septic system. Therefore, the need for the first
variance. In addition, your ordinance
also provides that you build an extra leach field. We don’t that is absolutely necessary with
the system we are proposing.
At this point,
Attorney Richard Uchida turned the meeting over to Jennifer McCourt, Engineer
for the project.
Jennifer McCourt,
Engineer, presented handouts to the Board as follows:
1.
Letter from
NHDES, William E. Evans, Administrator, Subsurface Systems Bureau, granting a Waiver
to Administrative Rule Env-Ws 1014.05 for a similar project. (attached)
2.
Statistics
developed by McCourt Engineering regarding Average Sewer Flow. (attached)
3.
Information
Sheet regarding Bacteria Rejuvenation.
(attached)
4.
Informational Flyer regarding Enviro-Septic Wastewater Treatment System. (attached)
Jennifer McCourt
explained that they needed the two variances in order to put in the
Enviro-Septic Wastewater Treatment System.
She stated that if they were to put in one septic tank for every two
units, there would have to be 42 septic tanks.
This would create considerable maintenance.
She stated with
the proposed system, there would be two separate leach fields built to the
Envio-Septic standards. In the case of
failure or maintenance of one of the systems, the second system could be used
as backup. There will be a maintenance
person for the entire development. This
will allow for ease of maintenance and allows the system to be maintained on a
more regular basis. There would be only
two places to look for problems instead of digging up everyone’s yard with a
septic tank.
Jennifer McCourt
stated she had been involved with quite a few of this type of Senior
Developments and what we have seen when we have come back, is they are
extremely low users of water, etc. They
average about 65 gallons a day for two bedrooms. We have asked DES to reduce the standard to
110 gallons per day per bedroom from the 150 standard. This still gives a lot of leeway.
Jennifer McCourt
stated she had always been a staunch support of the stone and pipe systems but
has come to find out that the Enviro-Septic System is much more efficient. With the Stone and Pipe System, if there is
failure you need someone taking care of the system. The biggest problem with the stone/pipe
systems is during installation, the stone put in is not clean. Have seen installers putting
in dirty stone and washing it so it looks clean. The Enviro-System uses 10” pipe instead of 4”
pipe and it treats the septic better than the standard stone and pipe
system. We have had people from
Jennifer McCourt
stated that because this is a 55 and older community, you could have one system
covering for both for a limited length of time in order to do repairs and/or
rejuvenate the system. The average life
for a stone/pipe system is 20 years. She
stated they have
not had any failures as yet with the Enviro-System. Have spoken with Presby
regarding this.
Dan DalPra noted
that they usually use this type of system when you are next to a lake or a
pond.
J. McCourt stated
this is at least 200 feet from wetlands.
At this point in
the public hearing, it was noted for the record that there were no abutters
present. All abutters had been notified
by certified mail. Abutters as follows:
Glenn Doten - Not Present
Keith/Jennifer
Lavoie – Not Present
Joseph/Kathryn
Azotea – Not Present
Avid/Betsy Rain –
Not Present
Glenn/Wendy
Flaherty – Not Present
Julia/Arthur
Thomas – Not Present
Mary Story Heirs –
Not Present
Dwight Bartlett/Martha
Bartlett – Not Present
Walter Smith/Nancy
Kapisky – Not Present
Jeffrey/Evelyn Kantor – Not Present
Kevin/Marie McCarthy – Not Present
Rene/Ruth Norbert – Not Present
Paul/;Robin Nelson – Not
Present
Nicole French – Not Present
Benjamin/Mary Horn – Not Present
M. Curtis/Tommy Whittaker – Not Present
John/Katherine Mazalewski – Not Present
Henry/Joan Burnham – Not Present
Charles/Nancy Graybill – Not Present
Thomas/Melissa Maille – Not Present
Town of
Theresa Naser – Not Present
David Maceachran – Not Present
J & J Realty Trust – Not Present
Kenneth/Jennifer Proulx – Not Present
Mary Jane Caron Trust – Not Present
Town of
Herbert & Uchida Law Office – Richard Uchida present,
representing the applicants
McCourt Engineering Associates – Present,
representing the applicants
Schauer Environmental Consultants – Not Present,
representing the applicants
A.C. Engineering –
Not Present, representing the applicants
Lewis Engineering
– Not Present, representing the applicants
At this point in the public hearing, the Board requested the applicant to address the necessary criteria for the granting of a Variance as follows:
a.
No diminution in values of surrounding properties
would be suffered;
·
No evidence has been presented which would suggest
that property values would be affected.
·
Surrounding properties will benefit if less open space
is occupied by septic infrastructure and if, through the use of two tanks
versus 40-plus tanks, septic problems are more rapidly discovered.
·
The variances will help preserve the village-like
setting the ZBA approved, which will benefit our neighbors and their land
values.
b.
Granting the variance would be of benefit to the public interest;
·
Helps preserve village-like setting. The applicant
would not seek this variance if ZBA had not expressed its support for this
setting and the accompanying densities attendant to this setting.
·
Fewer tanks means there is less chance that something
will go wrong, and that if something does go wrong, it will be easy to
locate. This is in the public interest.
·
Less open space land, which is to be open to the
public, is devoted to septic infrastructure.
· There is still plenty of capacity given DES sizing requirements for senior living housing versus the actual documented gallonage flows from such housing.
·
The systems are constructed to allow one to be shut
down and cleaned, with plenty of capacity to handle septic waste from the
project for several days.
·
The systems will be professionally managed.
·
There is land for the creation of another field, if
need be.
·
Will have DES review and approve. It is concerned with
same issues.
c. Denial
of the variance would result in unnecessary hardship to the owner seeking it.
·
Strict compliance with the literal wording in the
ordinance is not reasonable given this property.
·
Destroys village-like setting.
·
Devotes too much land to septic infrastructure when
such is not necessary.
·
Fails to recognize new technologies and methods to
handle septic waste.
·
Creates a septic field capacity that not only won’t be
used, but due to lack of use, provides no guarantee against failure because
bio-mat tends to harden up without use.
·
Ordinance intends to provide safe, healthy septic
environment with plenty of capacity and minimization of failure. The system we wish to build accomplishes
this.
·
The requirements of no more than one tank for every
two units and the additional capacity for the septic system are not realistic
for a project of this size, especially with the septic technology the developer
intends to employ.
d.
Granting the Ordinance would do substantial justice; and
·
Substantial justice means any detriment on a party is
outweighed by benefits to the greater good.
·
No evidence was presented that any party will be
detrimentally affected.
·
On the other hand, less land devoted to septic, use of
best new technology, creating a system with ample capacity given the
population, creating a system that is simpler to maintain, manage and repair,
and preserving the village character are great benefits which are lost if
ordinance is strictly complied with. In
this way, substantial justice is satisfied.
e.
The use would not be contrary to the spirit of the Ordinance.
·
The ordinance is intended to make sure that there is
plenty of capacity in a septic system and to ensure that septic tanks are not
overloaded by minimizing the number of units on a tank.
·
In this instance, through the use of new technology,
plenty of capacity has been built into the system. Moreover, through the cut-over valves, the
second set of septic fields has the capacity to handle septic waste from the
project if one system goes down. This is
long enough for the system proposed by the developer to be cleaned out. Thus, the intent of the ordinance –
reasonable capacity – is certainly honored.
·
In addition, the use of two tanks for the project will
make management, maintenance and repair of the system far easier and
faster. This makes much more sense than
literally applying the ordinance and creating 40-plus tanks, which could run
counter to the intent of the ordinance – a well-run septic system.
At this point in the public hearing, Kenneth Swayze
stated he had presented the plan to another designer, and they had stated that
this was a superior design. He had no
comments or objections. This system will
be much better than the standard system.
The concept is good. This
provision is only required under the PRD Ordinance.
There being no further comments from the public, the
Public Hearing was closed.
John Trottier, Chairman, noted the following members
would be voting on the Dunbarton 88 LLC request for a Variance this evening:
John
Trottier
John
Herlihy
Alison
Vallieres
Ron
Slocum
Board Discussion:
John
Trottier stated that as an Engineer, this makes sense to him. If you have a development such as this, you
have one big septic tank.
Dan DalPra stated this is not a public infrastructure. It will be their own
problem. It is not the Town’s
problem.
Other members of the Board agreed that this was a
good solution.
MOTION:
John Herlihy made a motion that the Dunbarton Zoning
Board of Adjustment grant the request from Dunbarton 88, LLC (Summerhill
Condominiums) (B3-2-1, B4-1-11, A4-1-15, A3-1-4) for two variances to Article 6, Section F.
(2)(b) and F (2) (d) to allow them to establish a community septic system which
is serviced by a septic tank that shall serve more than two (2) units and which
has an extra construction leaching capacity of less than fifty percent of the
design size required by the New Hampshire water Supply and Pollution Control
Division, but will still require approval from the Division at property located
off Route 13 in the Low Density District in Dunbarton, NH subject to the condition
that if the State does not grant this system that the Variance will Cease and
Desist at that time.
John Trottier seconded the motion. The motion passed unanimously.
REOPEN THE PUBLIC HEARING FOR DAVID PELLENZ AT
Dan DalPra stepped down from the Board because he
was a personal friend of David Pellenz.
Cherrie Pellenz appeared before the Board with a
complete Certified Plot Plan for the requested Variance as required by the
Board.
At
this point in the meeting, John Trottier read the following statement with
regard to his serving on the Board:
“In accordance with the Town of
As a member of the
Town of
Both the applicant and all members of the Board had no problem with John Trottier serving as a voting member on this request.
John Trottier, Chairman, noted the following members would be voting on this request:
John Trottier
John Herlihy
Alison Vallieres
Ron Slocum
David Nault
MOTION:
David Nault made a motion that the Dunbarton Zoning Board of Adjustment grant the request for a Variance to Article 4, Section B. from David Pellenz (H2-2-2) to allow him to construct a wheelchair ramp and small deck closer than the required setback from the boundary line at his property located on 54 Ray Road in the Low Density District in Dunbarton, NH as referenced in the Certified Plot Plan dated October 3, 2005 by Jacques Belanger, Licensed Surveyor, with the distances as noted on this referenced plan.
John Trottier seconded the motion. The motion passed unanimously.
There being no further
business, the meeting adjourned at
Respectfully submitted,
Alison R. Vallieres
Secretary