The Town of Northwood, New Hampshire

Vice-Chairman Pender calls the meeting to order at 7:00 p.m.

PRESENT: Vice-Chairman Roy Pender, Thomas Lavigne, Robert Bailey, Nona Holmes, Alternates Jean Lane and Andrea Korson, Building Inspector/Code Enforcement Officer David Hickey, and Board Secretary Lisa Fellows-Weaver.

ABSENT: Chairman Bruce Farr, Alternate Ken Wilkins, and Board Administrator Linda Smith.

VOTING MEMBERS: Roy Pender, Tom Lavigne, Bob Bailey, Nona Holmes, and Andrea Korson.

MINUTES:
Bob Bailey makes a motion, second by Andrea Korson, to approve the minutes of July 23, 2007, as written. Motion passes unanimously; 5/0.

Continued Case:
Case #07-11: David and May Erwin, 107 Broad Cove Rd. Map 120; Lot 15. Applicant is seeking a variance under Article 3.01 (C)(1) and 3.02 (B) to replace existing 16’x28’ dwelling with a 24’x37’ residence on a lot with 0.53 acres where 2 Ac is required, and no road frontage (private road) where 150 ft. is required. Tom Lavigne makes a motion, second by Andrea Korson, to hear Case 07-11 later in the meeting, prior to Case 07-17. Motion passes unanimously; 5/0.

Case #07-14: Michael Travis, Long Pond Rd. Map 212; Lot 56. Applicant is seeking a special exception under Article 1.04 (C)(3) to construct a 24’x36’ two story residence on a 0.84 acre non-conforming lot, where 2 acres is required, with no frontage (180’ of frontage on a private road), where 150’ is required.

Mr. Travis is present regarding the parcel. He explains that a few years ago he combined the lots into one. This is a private road and there will be 180’ of frontage. He explains that he would like to maintain as much privacy as possible. There is a state approved septic plan. He adds that the purpose is to build on the parcel. It has more road frontage than required. He notes that for aesthetic purposes he would be not be cutting any of the trees along the road so it keeps the look and feel that exists and to keep consideration of abutters. Mr. Travis notes that there have been 2, ¼ acre lots that have been developed in this area within the last three years. He states that this will be little impact to the neighborhood.

Mr. Lavigne states that he did view the area with Mr. Bailey and it is very rocky. Mr. Travis states that he has a buyer for the lot. He adds that the house will be a stick built home and none of the trees along the road will be cut.

Discussion is held regarding the size of the structure proposed at 24’x36’. Mr. Travis states that the setbacks are all within 20’. Mr. Pender replies that it is still an undersized lot and if an addition were to be added to the house, then there would be a need to request another special exception. A discussion is held regarding the septic system location. After discussion, the board agrees that the structure size will not be larger than 28’ x 40’ and no higher than a two story.

Additional discussion is held regarding the well radius. Mr. Pender notes that the plan depicts the well radius going into the neighbor’s property. Mr. Travis explains the land layout and the plans are reviewed.

No abutters are present. Mr. Travis states that he did discuss this with the abutters. One of the reasons why he had the septic placed on the far side of the property was so it was the farthest point from the neighbors; however, it may not be the best place. Mr. Travis states that the lot is high, rocky, and dry.

Mr. Lavigne reads Article 1.04 (C)(3) as follows:
(3) Dimensionally nonconforming lots which were created or existed prior
     to December 31, 2005 may be developed without compliance with the
     requirements established by section 3.01 (C)(1) and 3.02 of this
     ordinance for lot size and frontage if granted a special exception by
     the ZBA. The ZBA shall grant the special exception only if the
     following conditions are met:

(a) septic systems shall be located 75 feet or greater from
open drainage or surface water, 50 feet or greater from
hydric B soils, 75 feet or greater from existing wells; and
septic systems must meet all other setback requirements
set by the New Hampshire Department of Environmental
Services, unless a waiver has been granted by the
appropriate state regulatory agency; and,
(b) the well protection radius shall be 75’ or greater and may not extend beyond the building setback on an adjoining lot.

Mr. Travis states that combining the lots creates more room. He states that there are no hydric B soils. A discussion is held regarding the 20’ setback and the logging road that abuts the property. Mr. Hickey states that he checked into this and it does not exceed the 20’ setback. Mr. Lavigne adds that the well radius in not an issue. Mr. Pender states that there is no issue with the septic.

Tom Lavigne makes a motion to grant the special exception for Article 1.04(C)(3) based on the all criteria has been met with the condition that the structure will not exceed 30’x40’, two story residence. Bob Bailey seconds. Mr. Hickey asks if two story includes storage and an attic. Mr. Lavigne replies two story is for living space. Motion passes unanimously; 5/0.
The outstanding balance of $25 for recording fees is paid.

New Cases:
Case #07-15: Roger and Michele Richard, Lake View Dr. Map 106; Lot 14. Applicant is seeking a variance under Article 3.01(C)(1) and 3.02 (B) to install a 26’x40’ foundation for a residence on a non-conforming lot of 1.05 acres where 2 Ac is required, and no road frontage (247’ on a private road).

Mr. Richard is present. He explains that he has owned the parcel for 15 years with the intent to build on it. He would like to build a home on the lot now and since his purchase the regulations have changed. He states that the road is a Class VI road and he does have an approved septic design.

Mr. Pender states that he has recently been made aware of some knowledge relative to frontage. He explains that since the ordinance does not specify either a public or private road; a special exception may apply. Mr. Hickey interjects and further explains that relative to some circumstances discussions have been held with town counsel. He states that this case does not apply for a special exception and a variance is necessary due to the fact that Mr. Richard cannot meet the well radius requirement within the definitions that would allow it to be considered as a special exception. The issue he believes that Mr. Pender is referring to would be upgrading of roads, which now has to be factored into the applications, according to an opinion by town counsel. ** He adds that special exceptions on private roads would be excluded; anything else, the applicant would need to be requesting relief to the requirement to bring a road up to town standards, either the rural road standards or the Class V standards.** Further discussion ensues and Mr. Hickey explains that what has prompted a review by town counsel is another potential application with a rather lengthy improvement of over ½ mile to improve the road two town standards. He refers to Section 3.01 (B)(2) and (B)(3) of the Northwood Development Ordinances and explains that these state that the town roads must be brought up to town subdivision standards as part of the process, unless relief is granted from the ZBA.

Mr. Bailey states that this will stop everything in town immediately as most of the private roads in town are not fit to be improved. Mr. Lavigne asks why the board has not been notified officially of counsel’s interpretation. Mr. Lavigne states that the applications have been posted and the people have come to the meeting in good faith and he feels that the board should proceed until the board has received official notification in writing. Mr. Pender agrees. Ms. Holmes states that there are so many of these roads in town that are difficult to drive over. She states that the town or someone will end up repairing 99% of the roads. She notes a large hole on the applicant’s road off of Bennett’s Bridge Rd. Mr. Richard states that he and a neighbor plan to repair this area if the variance is granted. He adds that the road does get worked on.

Mr. Hickey states that he does not believe that it is anyone’s intent to require applicants to bring the roads up to town standards if the ZBA felt in good faith that there was not a need to do so. He adds that it is his understanding that without the board granting relief on this item, from this point forward, the building department will not be able to issue building permits.

Mr. Pender states that the well radius would not meet a special exception; however, the septic system would.

Additional discussion is held regarding the standard maintenance agreement as referred to in the ordinance. Mr. Richard is aware that this agreement is required as are the residents on the road. Mr. Hickey explains that this agreement is a standard agreement prepared by the building department and provided to anyone that lives on a Class VI road and is private roads and required with the application. Mr. Hickey states that upon execution, the maintenance agreement is recorded.

Mr. Richard explains that he would like to build a house totaling 26’ x 40’. The structure would be a one floor residence with a walk out basement and possibility include a loft area. He adds that he plans to move the seasonal camper over to one side of the lot and use the camper until the house is completed.

Mr. Bailey asks the width of Lakeview Drive. Mr. Bailey notes that there is a steep grade at the entrance and ditches will be needed on each side. He adds that the town is issuing building permits for year round residences on a road that is not a year round road. Mr. Hickey replies that there is a possibility that there will be improvements done to this area to restore the beach, and the drainage.

No abutters are present for this case.

Mr. Lavigne asks when the lots were developed. Mr. Richard replies in the 1960’s and Mr. Bailey notes that it could be earlier. He adds that this is the largest lot in the subdivision.

Area Variance:
1. The variance will not be contrary to the public interest. Mr. Richard states that it would not affect the public interest. He states that it is in the public’s best interest for the lot to be developed. It is a part of the town. He adds that other areas in town have been developed. He is a citizen and is asking permission to build a house so he can stay in the state and this will not hurt the public.

2. Special conditions exist such that the literal enforcement of the ordinance results in unnecessary hardship. Mr. Richard states that the hardship of the land will not be affected. He states that the lot was less than 2 acres when he purchased it 15 years ago with the assumption to build on a buildable lot. It was subdivided before the ordinance. He adds that it was his understanding that the lot was buildable and he could build on it later and now the laws have changed.

3. The variance is consistent with the spirit of the ordinance. Mr. Richard states that at the time when the 2 acre lot changed the town’s people were looking out for the best interest of the town. He explains that people do have undersized lots now that they had before the spirit of the ordinance was changed. This was beyond his control and is why there is a variance process and is why he is here.

4. By granting of the permit, substantial justice will be done. Mr. Richard states that by following the proper procedures and obtaining the variance he will be able to qualify to build a home and it will be beneficial to the town. He adds that there are other buildings in the area. One lot past his lot is a smaller, year round house and three lots down there is another year round home, which is larger than this proposal.

5. No diminution in the value of surrounding properties will be
suffered. Mr. Richard states that the value of the surrounding properties may increase and stabilize with the proposal.

Mr. Bailey asks how many existing homes are now year round. Mr. Richard replies two, possibly three. Mr. Bailey states that the board cannot say that a driveway is not passable when the town road to the area could be considered not passable.

Ms. Holmes makes a motion to grant the variance for an undersized lot and frontage; Article 3.01(C)(1) and 3.02(B), for a 26’ x 40’, one-story living area, with a loft. Mr. Bailey seconds. Mr. Hickey asks about upgrading the road. Ms. Holmes makes an amendment to the motion to include that the applicant will be relieved from upgrading the road to town standards. No second is offered. Mr. Bailey asks why this needs to be addressed and Mr. Hickey states that per town counsel’s opinion, he will not be able to issue a building permit if this item is not addressed. Ms. Holmes asks why something has not been provided to the board from town counsel. Mr. Bailey expresses frustration and states that he is upset and the board is acting on this issue without any information and no time to review.

Mr. Roy states that if in fact relief for Section 3.01(B)(2) is required, it has not been requested or been noticed as such. Mr. Hickey states that he discussed this with the board administrator whose opinion was that since frontage was already being discussed, this would be covered under the discussion. Mr. Lavigne states that until the board has received official notification from town counsel with directions on how to interpret this ordinance, he suggests the board proceed as if the board has not heard anything relative to this ordinance. Mr. Pender agrees. Ms. Korson states that as a member of the board and making a binding decision, she is not comfortable with addressing the new information until the board has received official notice of counsel’s opinion. She adds that she is not comfortable with addressing this under the umbrella of frontage as suggested by the administrator. She requests information from town counsel and feels that the variance for upgrading the road should be posted and prefers to continue this discussion. With no second, Ms. Holmes withdraws her amendment. Mr. Lavigne states that should he vote in favor of the variance, it is with the intention that the applicant will be able to build on this lot.

Doug Sargeant states that the residential building code stipulates an average grade on the outside with a foundation to whether the basement should be included as a story or not. He explains that if the grade is more than 3ft. below the first level above the foundation, the basement then counts as a story. He states that the board’s definition needs to be clarified because if the applicant does not fill near the top of the foundation than it counts as a story and will have a two story house. Ms. Holmes makes an amendment to the motion to include a walkout basement. Mr. Bailey seconds. Motion passes; 4/1. Andrea Korson is opposed as she feels that criteria one has not been met.

Case #07-16: Paul Cain, Old Deerfield Rd. Map 242; Lot 11. Applicant is seeking a special exception under Article 1.04 (C)(3) to construct a 26’ x 34’ two story residence on a 1.2 acre non-conforming lot, where 2 acres is required; lot has 200’ frontage on a Class V road.

Mr. Cain is present and explains that he would like to build a 26’ x 34’ two story cape on a lot that is 1.2 acres. He states that he does not meet the requirements.

Ms. Korson asks about the power lines that run through the lot. Mr. Cain explains that the power lines pass through the center of the lot. There is a 30’ easement.

Mr. Lavigne asks what the road status is of Deerfield Rd. Mr. Hickey replies that this is a Class V road.

Mr. Pender notes that the well radius is within the neighbor’s setback. Mr. Cain states it is less than 20’. He adds that the leach bed is out of the well radius. Mr. Hickey notes that the septic tank is sealed. Mr. Cain provides the state approved septic plan. Mr. Cain adds that when the septic design was done there was no mention of Hydric B soils, within the area. Mr. Cain states that this is a high and dry area. There are no infringements to any other wells. Mr. Lavigne asks what the setback for the septic is. Mr. Hickey replies 10’.

No abutters are present.
Tom Lavigne makes a motion, second by Andrea Korson, to grant the special exception based on the fact that all criteria have been met. Motion passes unanimously; 5/0.

8:25 p.m. Mr. Pender calls for a recess. Session resumes at 8:30 p.m.

Continued Case:
Case #07-11: David and May Erwin, 107 Broad Cove Rd. Map 120; Lot 15. Applicant is seeking a variance under Article 3.01 (C)(1) and 3.02 (B) to replace existing 16’x28’ dwelling with a 24’x37’ residence on a lot with 0.53 acres where 2 Ac is required, and no road frontage (private road) where 150 ft. is required.

Mr. and Mrs. Erwin are present and request to withdraw case 07-11. Nona Holmes makes a motion, second by Andrea Korson, to accept the applicants request to withdraw case 07-11 and allow the applicant to withdraw. Motion passes unanimously; 5/0.

Case #07-17: David and May Erwin, 107 Broad Cove Rd. Map 120; Lot 15. Applicant is seeking a special exception under Article 1.04 (C)(5), and variances for Article 3.01 (C)(1) and 3.02 (B)& (B)(3) to replace existing 16’x28’ dwelling with a 24’x37’ residence on a lot with 0.53 acres where 2 Ac is required, no road frontage (60’ on private road), and the proposed location of the replacement dwelling is 17’ from a stream, where 20’ is required.

Mr. Erwin explains that they purchased this parcel with an existing A-frame home on it. The proposal is to replace the A-frame with a single level 24’ x 37’ cottage, with a loft.

Mr. Erwin states that they have had a survey of the property completed and an email is provided. He also provides a letter and a FEMA map showing that this parcel is not in the flood zone.

The board agrees to address the special exception first.

A letter has been received from Dick Frambach from his attorney, Roger Phillips. Mr. Pender read the letter from Atty. Phillips Law Office. Mr. Pender explains that the letter is contesting ownership to the high water mark of the beach. Mr. Erwin provides a plot plan of the property to refute the letter. He adds that prior to the purchase of the property, they purchased title insurance and the title was guaranteed to be free and clear. He refers to a quote on the plot plan noting that the purpose of the plot plan is to establish the common property lines and refers to a case number from superior court. He explains that the matter went to superior court and the property was then divided into three equal sections. He states that his deed states that it is the entire parcel that he purchased, deeded to the waterfront, not from the high water mark. He adds that he has title research and nothing was found noting that anyone else has rights to their beach. Mr. Pender reads a portion of the deed. Mr. Erwin states that there is nothing substantial, there is no evidence. The letter is just an attorney’s opinion and does not clear this matter up. Mr. Pender states that the ownership of the beach is a civil issue and has no bearing on the case. The board agrees to proceed with the special exception portion of this case.

The plan is reviewed. Mr. Erwin states that they have an approved septic plan; however, they only have a number provided from the state of the approved plan as changes were necessary. He believes that changes were for the tank itself.

Mr. Hickey states that the applicant is requesting a special exception for the setback to the stream, relief for 3’. Mr. Pender read Article 1.04 (C)(5) for the special exception. Mr. Pender states that the side deck is 12’ from the edge of the wetland. Mr. Erwin states that they will remove it if it is not acceptable to the board; however, Mr. Erwin states that they would prefer to keep the 12’. Mr. Pender confirms that the house is within 10’ of the other side of the property, which is the minimum setback.

Discussion continues regarding the wording of Article 1.04 (C)(5) of the Northwood Development Ordinances and setback requirements for the special exception requirements.

Additional discussion is held regarding the 100 year floodplain. Mr. Pender reviews and reads the email provided by the Erwins from Ron Natoli, LLS, PLS, dated August 23. Mr. Pender states that the email states that the area proposed for the cottage is not in a 100 year zone and refers to the FEMA Flood Insurance Rating Map 33015C0060E, with an effective date of May 17, 2005. He states that the board must refer to this evidence that is provided.

Abutters present are Robert and Theresa Piazza, Dick Frambach, and Richard and Barbara Desautels.

Mr. Frambach states that during the last floods the water came up to the right of way of this property. Joseph Farely, previous chairman of a Pleasant Lake Association, expresses concern with the filling of the wetland with 150 cubic yards of fill. He explains that his focus is maintaining the water quality of the lake. He describes that in the past 2 floods over the past 3 years, the flooding in the lake has gone over the road. He states that where the house and septic are proposed, should the area flood again, these areas will be inundated with water. His purpose is to make sure that the project is meeting the requirements of the Comprehensive Shoreland Protection Act. He adds that he has spoken to DES and someone has viewed the area, taken pictures, and measurements, to determine if the fill placed in the wetland was legal or not. He is waiting a report from NHDES.

Mr. Erwin explains they hired a soil scientist to clarify if the area was classified a wetland or not and provides the scientist’s official findings. Pictures are also provided showing the area prior to being filled. The surveyor determined that the area is not a wetland. Mr. Pender reads the certified wetland scientist letter into the record noting that the recent fill was added to uplands that were not state jurisdictional wetlands. Mr. Erwin also notes that the septic system will be higher and will need to be pumped uphill. He adds that they placed the septic as far away from the water as possible and it still meets the setbacks. Mr. Hickey adds that there was an updated septic plan that was reviewed by the town’s health officer on August 16. He explains that the state sends the approved plans by batches and they are only received once per month.

Ms. Desautels explains that the brook is shallow now; however, it expands over 25’ wide in the spring. Mr. Piazza replies that this is not the case and feels that there would be appropriate indicators based on the study that has been received by the Erwins. He adds that he has lived in this area for 15 years and the flooding that has occurred has only occurred twice. Mr. Desautels states that their land is fully saturated for most of the spring. He expresses concern with the water runoff and displacement of the fill. He is concerned of more flooding damage to his land. Mr. Erwin states that when the project is complete, the area filled will be graded and grassed. He adds that water will always seek the lowest level. He feels that the fill will not make any flooding worse. Mr. Farley requests that the board defer any decisions until an interpretation is received from NHDES. Ms. Erwin states that they were not notified that the inspectors were going to the property. She states that she has spoken to Andy Chapman and explained the problem. She was assured that as long as there were reports from an environmental scientist, it would satisfy the board. Ms. Erwin states that she will fax the reports to the state. Mr. Frambach asked what the setback is for septic systems to property lines. Mr. Hickey replies it is 10’ and adds that it is a state requirement not a town requirement. Mr. Sargeant states that this is a developed lot with an existing structure. Mr. Pender replies that the applicants have a right to improve their living conditions. Mr. Sargeant agrees; however, he adds that it could be done farther back where there is no encroachment.

Mr. Lavigne asks when the fill was done. Mr. Erwin replies in July. He adds that the edge of the fill is 9½ ft. from the water. Mr. Lavigne states that he is uncomfortable and would like to get some information back from the state. Mr. Erwin states that he has done everything possible to get the issues addressed and have everything cleared up for this meeting. Mr. Bailey agrees with Mr. Lavigne.

Mr. Lavigne makes a motion, second by Mr. Bailey, to continue the special exception portion for this case to October 22, 2007. Motion passes unanimously; 5/0. Mr. Lavigne makes a motion, second by Mr. Bailey, to continue the variance portions of this case to the next meeting. Motion passes unanimously; 5/0.

Ms. Erwin asks what is needed from the state, a statement that the environmental scientist was correct in evaluating the property and would be sufficient to proceed. Mr. Lavigne also requests that Mr. Farely provide information should he receive something in writing from the state.

Correspondence:
All correspondence is reviewed.

Adjournment:
9:35 p.m. Andrea Korson makes a motion, second by Nona Holmes, to adjourn. Motion passes unanimously; 5/0.

Respectfully submitted,

Lisa Fellows-Weaver
Zoning Board Secretary

[ Back ]

top of page