DUNBARTON ZONING BOARD OF ADJUSTMENT

MONDAY, NOVEMBER 14, 2005

TOWN OFFICES – 7:00 [P.M.

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

Dan DalPra, Alternate

Wayne Bracy, Alternate

Leo Martel, Alternate

Kenneth Swayze, Admin., Planning and Zoning

Line Comeau, Building Department

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 MONTH’S MINUTES: Monday, October 3, 2005

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment approve the Monday, October 3, 2005 meeting minutes as written. John Herlihy seconded the motion. The motion passed unanimously.

7:00 P.M. – PUBLIC HEARING REGARDING A REQUEST FROM RONALD RUGGIERO (F3-1-14) FOR AN EQUITABLE WAIVER TO ARTICLE 4, SECTION B. TO ALLOW HIM TO CONTINUE THE USE OF AN EXISTING WELL WITHIN THE REQUIRED 75 FOOT SETBACK AND GARAGE WITHIN THE REQUIRED 40 FOOT SETBACK AT HIS PROPERTY LOCATED ON 22 BARNARD HILL ROAD IN THE MEDIUM DENSITY DISTRICT IN DUNBARTON, NH.

John Herlihy stepped down from the Board because he was a personal friend of Ronald Ruggiero.

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 Dunbarton’s Code of Ethics, as adopted on March 13, 2001 Section I. C. - Duty to Disclose, I would like to publicly and for the record state that my wife Deborah, is currently employed by J. E. Belanger Land Surveying (Jacques Belanger) as the office manager.

As a member of the Town of Dunbarton ZBA, I feel that I can give the Applicant fair and equal treatment as it relates to this evening’s request for a Variance. Additionally, I feel I am not prejudiced to any degree regarding the pending matter, and I believe I can be totally fair and impartial.”

Both the applicant and all members of the Board had no problem with John Trottier serving as a voting member on this request.

Jacques Belanger, Surveyor, appeared before the Board on behalf of Mr. Ruggiero. He presented a Certified Plot Plan showing the proposed subdivision along with setbacks, etc. He stated the applicant would like to break off a three acre lot from the existing six acre lot. The property is located within the Medium Density District on Barnard Hill Road. Presently, the existing house is for sale. Mr. Ruggiero feels that by breaking off the three acre lot, and reducing the price of the house, he would be able to recoup his money.

Jacques Belanger stated the following:

1. The house was built in 1986 by Mike Chicoine. There is no type of permit in existence for the shed. It has been there well over ten years.

2. Mr. Ruggiero is the second owner of the property.

3. Schauer Environmental has delineated the Wetlands on the property.

4. The reason we are asking for the Equitable Waiver is because of the proposed subdivision of the property. It is more of a “housekeeping” issue because of the proposed subdivision. It would not have come to our attention if we had not been surveying for the subdivision.

Wayne Bracey asked what the size of the garage/shed was. Jacques Belanger stated it was 32’ x 10’ – 12’. The actual garage is by the house.

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

Harold Mooney Family Trust – Not Present

Holmes Family Trust of 1997 – Not Present

Michael Elmes – Not Present

Jonathan/Bonnie Rickard – Not Present

Doris M. Michael Revocable Trust – Not Present

Robert/Laurie Waldron – Not Present

(Jeff Trexler stated that he was in the process of purchasing the Waldron parcel but papers had not been signed as yet. He stated he had no objection to the granting of the Equitable Waiver. It is of no concern to them. )

Christian Tefft – Not Present

Schauer Environmental – Not Present

J. E. Belanger Surveying – Present (representing the applicant)

Other Members of the Public:

None

John Trottier read the requirements of an Equitable Waiver as follows:

674:33-a Equitable Waiver of Dimensional Requirement.

I. When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance enacted pursuant to RSA 674:16, the zoning board of adjustment shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the requirement, if and only if the board makes all of the following findings:

(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;

(b) That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith or the part of any owner, 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;

(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

(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.

II. In lieu of the findings required by the board under subparagraphs I(a) and (b), the owner may demonstrate to the satisfaction of the board that the violation has existed for ten (10) 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.

III. Application and hearing procedures for equitable waivers under this section shall be governed by RSA 676:5 through 7. Rehearings and appeals shall be governed by RSA 677:2 through 14.

IV. Waivers shall be granted under this section only from physical layout, mathematical or dimensional requirements, and not from use restrictions. An equitable waiver granted under this section shall not be construed as a nonconforming use, and shall not exempt future use, construction, reconstruction, or additions on the property from full compliance with the ordinance. This section shall not be construed to alter the principle that owners of land are bound by constructive knowledge of all applicable requirements. This section shall not be construed to impose upon municipal officials any duty to guarantee the correctness of plans reviewed by them or property inspected by them.

Ken Swayze, Planning and Zoning Department, stated there is no record of a violation on this property.

The Board noted they could require that the applicant get a Waiver for the well radius from the abutting parcel owner.

Jacques Belanger stated that there would be no problem obtaining a well release from the abutter.

The Public Hearing was closed at 7:20 p.m.

John Trottier, Chairman, stated the following members would be voting on this application this evening:

John Trottier

Alison Vallieres

Dan DalPra. Alternate

Leo Martel, Alternate

Wayne Bracey, Alternate

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment grant the request from Ronald Ruggiero (F3-1-14) for an Equitable Waiver to Article 4, Section B. to allow him to continue the use of an existing well within the required 75 foot setback and garage within the required 40 foot setback at his property located on 22 Barnard Hill Road in the Medium Density District in Dunbarton, NH subject to the condition that the applicant file a restrictive well radius release signed by the abutter.

Alison Vallieres 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 AN ADMINISTRATIVE APPEAL TO ARTICLE 6. SECTION D.(1) TO ALLOW THEM TO ESTABLISH A COMMUNITY SEPTIC SYSTEM ON COMMON LAND WITHIN A PLANNED RESIDENTIAL DEVELOPMENT AT THEIR PROPERTY LOCATED ON 20 COUNTRY CLUB DRIVE OFF ROUTE 13 IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH. (THIS APPEAL IS FOR A DETERMINATION THAT THE APPLICABLE PROVISION OF THE ZONING ORDINANCE DOES NOT PROHIBIT SEPTIC SYSTEMS ON COMMON LAND, BUT IS INSTEAD A PROVISION WHICH PREVENTS THE DEVELOPER FROM USING LAND DEVOTED TO SEPTIC SYSTEMS TOWARD THE TOTAL ACREAGE NEEDED FOR OPEN SPACE IN A PLANNED RESIDENTIAL DEVELOPMENT.)

John Herlihy stepped back on to the Board.

At this point in the Public Hearing, John Trottier verified with Maria Dolder, Attorney, that Jacques Belanger was the Surveyor for the project. Maria Dolder stated that Jennifer McCourt had done the engineering but that Jacques Belanger had done the survey work. Based on this information, John Trottier read the following statement:

Both the applicant’s representative (Maria Dolder), and all members of the Board had no problem with John Trottier serving as a voting member on this request.

Maria Dolder, Attorney, Richard Uchida’s Office, appeared before the Board on behalf of the applicants. She stated they were seeking an Administrative Appeal from Steve Duggan, Town Counsel’s, interpretation of the Dunbarton Zoning Ordinance wherein it states that septic systems cannot be located on Common Open Space of a Planned Residential Development. She stated they disagreed with his interpretation of the ordinance, therefore were filing for the Administrative Appeal.

Maria Dolder stated the condominiums are set up with no lot lines. The Ordinance states there will be no utilities within the Common Open Space. The only way we could do it would be to create specific lots. The whole intent was to make it a Village setup. They are not specific lots of record. In the PRD Ordinance you are allowed to eliminate all lot lines. We can’t have a septic system because it can’t be on Common Open Space. This is in direct conflict with what the Zoning Board has done in the past. They have required that we have a parking lot to serve the Conservation Easement Property. The streets are also considered Open Space.

Maria Dolder stated that Attorney Duggan only stated they needed a Variance to have the septic system on Common Open Space.

John Trottier indicated they could remove the septic area from the Common Area into a separate lot.

All members of the Board indicated they would not feel comfortable in overriding Town Counsel’s interpretation of Dunbarton’s Zoning Ordinance.

Maria Dolder stated they could not relocate the septic system to another spot.

Ken Swayze stated the applicant’s interpretation of Open Space is not the same definition as our definition of Open Space. The State requires 20,000 square feet for a leach bed such as this.

Alison Vallieres stated when the project was first approved by the Zoning Board, it never entered her head that the streets and areas around the houses, including parking areas were considered part of the Open Space.

Maria Dolder stated that this is considered Limited Common Open Space. She also stated that if we are allowed to have the septic system located within the Common Space, we will agree to take it out of the calculations for Open Space for number of lots. She stated there is more than enough Common Space presently for the number of proposed lots. Maria Dolder asked if we have to create specific lots? Are we forced to create a lot for every piece of infrastructure? PRD’s are permitted without lot lines. This just doesn’t seem to make sense if you can’t have infrastructure on Common Open Space land.

The Zoning Board indicated that and example was Old Fort Estate which was a PRD and had a Common Area set aside. Old Fort Estates had lot lines and the Common Area was a separate lot.

Wayne Bracey stated the Board needs to know what the acreages are before making any decision.

It was noted for the record that the only abutter present was Kevin McCarthy. He had no comments.

After considerable discussion, the Zoning Board decided they needed to hear Town Counsel’s explanation before making any decision. Based on this, the following motion was made:

Members of the Board voting were as follows:

John Trottier

John Herlihy

Alison Vallieres

Leo Martel, Alternate

Dan DalPra, Alternate

MOTION:

John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing regarding a request from Dunbarton 88, LLC (Summerhill Condominiums) (B3-2-1, B4-1-11, A4-1-15, A3-1-4) for an Administrative Appeal to Article 6, Section D. (1) to allow them to establish a Community Septic System on Common Land within a Planned Residential Development at their property located on 20 Country Club Drive off Route 13 in the Low Density District in Dunbarton, NH until the Dunbarton Zoning Board has Town Counsel’s interpretation of the Zoning Ordinance and more information.

John Trottier seconded the motion. The motion passed unanimously.

John Trottier indicated he will contact the Town Attorney and the Public Hearing will be continued until the December meeting.

MOTION:

John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for a request from Dunbarton 88, LLC (Summerhill Condominiums) (B3-2-1, B4-1-11, A4-1-15, A3-1-4) for a Variance to Article 6. Section D. (a) to allow them to establish a Community Septic System on Common Land within a Planned Residential Development at their property located on 20 Country Club Drive off Route 13 in the Low Density District in Dunbarton, NH until the December meeting of the Dunbarton Zoning Board of Adjustment .

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 A VARIANCE TOARTICLE 6. SECTION D.(1) TO ALLOW THEM TO ESTABLISH A COMMUNITY SEPTIC SYSTEM ON COMMON LAND WITHIN A PLANNED RESIDENTIAL DEVELOPMENT AT THEIR PROPERTY LOCATED ON 20 COUNTRY CLUB DRIVE OFF ROUTE 13 IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH. (THIS REQUEST ONLY NEEDS TO BE ACTED UPON IF THE PREVIOUS ADMINISTRATIVE APPEAL IS DENIED BY THE DUNBARTON ZONING BOARD OF ADJUSTMENT.)

Continued until December Meeting.

PUBLIC HEARING REGARDING A REQUEST FROM LINDA MIKOL (K1-04-1) FOR A VARIANCE TO ARTICLE 4. SECTION D. d & c TO ALLOW FOR THE CONSTRUCTION OF A STEEPER PITCHED ROOF, BUILT IN ACCORDANCE WITH ALL CURRENT CODES AND REQUIREMENTS, WHICH WILL RESULT IN AN INCREASE IN OVERALL HEIGHT AND VOLUME OF THE EXISTING NON-CONFORMING STRUCTURE AT HER PROPERTY LOCATED AT 2 STEPHANIE ROAD IN THE LOW DENSITY DISTRICT AT GORHAM POND IN DUNBARTON, NH. (ONLY A PORTION OF THE PLANNED CONSTRUCTION IS LOCATED IN THE RESTRICTED SET-BACK AREA)

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:

Both the applicant and all members of the Board had no problem with John Trottier serving as a voting member on this request.

Linda Mikol, applicant, appeared before the Board. She stated she was increasing the pitch on her roof so that she no longer had to shovel snow off the roof. She stated she lived alone, and it was difficult for her to shovel.

Linda Mikol stated that the increased pitch would be over the old portion of the house. There would not even be storage up there. It will not be living space.

At this point, Jacques Belanger, Surveyor, presented a Certified Plot Plan showing the lot with the setbacks. (attached) He stated the zoning setback is 20 feet on both sides and the rear and 25 feet for the front. The house is located on 2 Stephanie Drive. The existing house is already within the setbacks.

At this point in the Public Hearing, Ken Swayze stated the area impact is very minimal. The portion of the roof that is being changed is within the restricted area. There is no impact.

Jacques Belanger, Surveyor, presented pictures showing the proposed construction and the pitch of the roof, etc. (attached)

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

Mary Beaubein – Not Present

Anthony Migneault – Not Present. Linda Mikol presented a letter from A. Migneault stating he had no objection to the raising the pitch of the roof . (attached)

Andy Radefeld – Not Present

Charles/David DeAngelis – Not Present. Linda Mikol present a letter from David DeAngelis stated he had no objection to the granting of the Variance as requested. (attached)

Clara Shelton – Not Present

Mr. And Mrs. Jonathan Riley – Not Present

Mr. Boucher/Mr. Armstrong – Not Present

J. E. Belanger Land Surveying – Present (Representing the applicant)

Other Members of the Public:

Lou Costa stated he had no comments.

At this point in the Public Hearing, Jacques Belanger, Surveyor, addressed the necessary questions for the granting of a Variance as follows:

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

Answer: Granting the variance would not cause a diminution of the surrounding properties. The existing structure is within the 25 foot setbacks along the frontage of both roads. The application is to replace the roof and structural rafters with a steeper pitch to improve the drainage and appearance of the building.

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

Answer: Any improvement to a property, improves the appearance of the town. This is one of the original camps in the Gorham pond development that has been converted to a year round home. The replacement of the roof will lend aesthetic value to the property and community.

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

The existing roof is problematic with ice buildups and potential leaking. The new roof will improve this condition. By granting the variance, Mrs. Mikol will be able to improve her home and protect her investment.

d. Granting the variance would do substantial justice; and

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

This is an existing structure dating back prior to zoning in the Town of Dunbarton. The slight alteration of the roofline does not go against the spirit of the Ordinance.

There being no further public comment, the Public Hearing was closed.

Board Discussion:

John Trottier noted the same members as voted on the previous application would be voting. Members of the Board voting were as follows:

John Trottier

John Herlihy

Alison Vallieres

Leo Martel, Alternate

Dan DalPra, Alternate

John Herlihy stated he felt it was only right that Linda Mikol be granted a variance to take care of her property. He thoroughly understood her situation.

Alison Vallieres stated she felt the lady should be granted the variance to raise the pitch on the roof to avoid shoveling snow off it. It only makes sense.

John Trottier stated he had no problem with the granting of the variance. The impact is minimal.

Other members of the Board agreed that the variance should be granted.

MOTION:

John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment grant the request for a Variance to Article 4. Section D. d. and e. from Linda Mikol (K1-04-1) to allow for the construction of a steeper pitched roof, built in accordance with all current codes and requirements, which will result in an increase in overall height and volume of the existing non-conforming structure at her property located at 2 Stephanie Road in the Low Density District at Gorham Pond in Dunbarton, NH subject to the condition that it will be non-livable space.

Dan DalPra seconded the motion. The motion passed unanimously.

OTHER BUSINESS:

Ron Woods, Former Lorden Property (PRD):

Ron Woods appeared before the Zoning Board of Adjustment. He stated that he and Bob Hill would be pursuing the former Lorden Property Planned Residential Development. Mr. Woods noted that the Dunbarton Zoning Board of Adjustment had agreed at a previous meeting that the granted Special Exception was still in effect provided that all terms and conditions remained the same. Also the plan and lot layout should be the same as originally approved by the Zoning Board. Mr. Woods stated the proposed Conservation Easement had never been presented to the Town. Because of this, he wanted a clarification as to what the Zoning Board intended with regard to the trails, etc. Mr. Woods stated there was an existing snowmobile trail which goes across the Common Area.

Ron Woods stated they would like to add two words to the Conservation Easement document as follows: “non-ground bearing”. This would allow for snowmobile use but not ATV’s, four wheelers, or dirt bikes, etc.

At this point in the discussion, John Herlihy stated that he remembered the situation well and the Zoning Board intent was specifically to allow snowmobiles and not ATV’s, dirt bikes, 4 wheelers, etc. He noted at the time of approval there was an existing snowmobile trail on the property which is still there.

The Zoning Board of Adjustment reached a consensus that the words “non-ground bearing” could be included in the Conservation Easement.

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

Respectfully submitted,

Alison R. Vallieres

Secretary