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, Board Administrator Linda Smith, and Board Secretary Lisa Fellows-Weaver.

ABSENT: Chairman Bruce Farr, and Alternate Ken Wilkins

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

MINUTES:
Nona Holmes makes a motion, second by Andrea Korson, to approve the minutes of August 27, 2007, as amended as follows:
Page 6: Change to Old Deerfield Rd. A discussion is held regarding Upper Deerfield Rd. and Old Deerfield Rd. Ms. Smith states that there is not a road in Northwood called Old Deerfield. Ms. Holmes disagrees. Ms. Smith states she will review this matter and bring it to the attention of the selectmen.
Page 8: Change deck to stream
Motion passes unanimously; 5/0.

Continued Case:
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. Pender acknowledges a letter received from Dori Wiggin from NHDES regarding a complaint of wetlands violations. The letter stated that as a result of a review, NHDES has determined that no wetlands violations have occurred within a jurisdictional area. Mr. Erwin provides a letter from Accurate Title relative to ownership of the beach rights for this property.

Special Exception
Mr. Pender reads the requirements for a special exception, Article 1.04 (C)(5) from the Northwood Development Ordinances. Mr. Pender states that a copy of the state approved septic system is in the file. Mr. Erwin explains that the septic system is 150’ from the water.

Mr. Pender acknowledges receipt of a letter sent in from abutters Desautels. The board takes a few minutes to read the letter and Mr. Pender expresses concern with mention to the Shoreland Protection Act.

Discussion is held regarding the determination if this lot is a developed lot and the purpose of a special allowable exception. Mr. Erwin states that the existing septic system is really non existent. It is a 275 gallon drum with holes and is approximately 10 ft from the brook. Mr. Lavigne states the Desautels letter is an opinion from an abutter. He states that it is up to the board to decide to agree or disagree. Ms. Korson states that she agrees with the content of the letter and adds that the lot is developed; therefore a special exception does not apply. Ms. Smith states that she agrees with the content of the letter and the language in 1.04(C) states that the special exception cannot be achieved on an undeveloped, pre-existing lot. Ms. Korson states that she concurs that the ordinance is referring to an undeveloped lot and the Erwin’s lot is a developed lot. Ms. Korson adds that she does not feel a special exception applies and that the applicant cannot accomplish what they want to do with a special exception. Mr. Lavigne asks how the applicant can accomplish what they would like or if it is even possible. Ms. Smith replies that it is not the board’s responsibility to determine what the applicant needs. She explains that it is the applicant’s responsibility to come before the board and request relief from the zoning ordinances based on how they perceive their lot may get relief. It is not the role of the ZBA to supply this information. Ms. Smith notes that after reading the letter it is clear that a special exception would not apply. Mr. Erwin states that the board told them to apply for the special exception. Ms. Smith replies that the board should not be providing the applicant’s information.

Ms. Erwin states that nothing is working on the site, nothing is functioning, and it hasn’t been for years. Mr. Lavigne states that the board needs to determine if the lot is a lot of record and already developed. He adds that he agrees that the lot is a developed lot; however, what is in question is if the board has jurisdiction to hear the case for a special exception or not. Mr. Pender replies that he feels the board can hear the case still; however, the issue is if the case qualifies for a special exception.

Further discussion is held regarding how the application was submitted and how it has progressed over the past few months. Mr. Hickey states that at the time of submission the applicants needed relief. Ms. Smith states that there was information missing at the time of the original application and the applicants provided additional information and a further request for additional relief was determined to be necessary. The original application was then withdrawn and everything was then agreed to be addressed at once. Mr. Pender states that the board requested clarification of the stream, wetlands, septic location, and the board agreed that the special exception applied at that time.

Tom Lavigne makes a motion to hear the case, as presented. Bob Bailey seconds. VOTE: 4/1. Ms. Korson is opposed. Ms. Smith strongly encourages the board to reconsider the motion and obtain a decision from legal counsel relative to this case before an error in law is made and ties the town to any potential litigation.

Special Exception
Mr. Pender reads Section 1.04(C)(5):
If water body or wetland setbacks can not be achieved on an undeveloped pre-existing lot because the lot does not have sufficient depth from the water body or wetland, a new structure shall be permitted if granted a Special Exception by the ZBA. The ZBA shall grant the Special Exception only if the following conditions are met:

(a) Sanitary water supply and sewage disposal are provided, and if on-site, the sewage disposal is located as far from the water body or wetland as is feasible or necessary;
Mr. Erwin explains that there will be a dug well for the water supply. He adds that the septic system will be 147’ from the structure to the septic tank and approximately 100-120’ from the back of the building.

(b) Non-water body or non-wetland setbacks shall be reduced by up to 50% before the water body or wetland setback is reduced, ensuring maximum protection of the water body, shoreline, or wetland.

(c) The structure shall not be located within the 100 year floodplain. Ms. Erwin states that they are not within the flood plain.

(d) Non-waterbody and non-wetland setbacks shall not be reduced to less than 10 feet.

Ms. Korson makes a motion, second by Mr. Lavigne, to deny the special exception due to the fact that the developed lot does not meet the criteria of the ordinance. A discussion is held regarding a term of tenancy. Mr. Erwin states that the property was rented three to four years ago and the people only stayed one day and one night. He adds that the septic backed up and the house is unlivable. Mr. Pender notes that the public did address this application at last month’s meeting. Mr. Lavigne states that he does not have a problem allowing abutters to speak again.

Abutter Mr. Piazza explains that the stream is not a stream; it is a tributary to drain the back of the property. This stream is not an active stream; it is dry today. He further explains that years ago they blasted areas of the property to drain the Erwin’s lot thus making the stream area, which makes his property a more marketable property. He adds that there is a 150-200 gallon drum that was dug and buried behind the “A” frame, which has never been emptied and it is now not acceptable septic system. Mr. Piazza states that the property and the frontage that was divided into three lots. He feels that the courts decision that was made determines that the lot could be considered an undeveloped lot.

Abutter Rick Desautels requests that Doug Sargeant speak on his behalf. He adds that there was a lawsuit that involved one of the three owners of the 90’ frontage. A piece of the land was secured; however, these lots are single lots. He also asks how living within a structure is pertinent to this case.

Ms. Holmes refers to the “cellar holes” and asks if these areas are developed lots. She states that if a structure has been let go to deteriorate and the structure is no longer usable she does not feel that it is useable. She feels that developed means useable.

Ms. Smith refers to the ordinance relative to a lot having sufficient depth from the waterbody or wetland. She suggests that the structure could be put somewhere else so to not infringe on the setback and keep within the original footprint. Mr. Lavigne states that in his opinion, the applicants could achieve what they wanted to build on the opposite side of the private way. A house, septic, and well all could be achieved. He adds that he does feel that a special exception would not apply for the applicant’s request. Ms. Korson states that the ordinance states a reasonable use, which would be to build on the other side of the private way. Ms. Erwin states that the well and septic do not work and asks what if the house was to be removed. Ms. Smith explains that it is her understanding that a developed lot is a lot that at some point is considered to have a use; a septic, well, etc. She adds that this lot had this use at some point. If there is no functioning well, septic, etc., it does not mean that the lot is undeveloped. If the lot has gone beyond the stage of habitation, it does not change the status. The board should determine what is reasonable. Ms. Korson adds that the board is limited as to how to interpret the ordinances. Mr. Bailey adds that the lot has been taxed as a developed lot. Motion passes unanimously; 5/0.

Variances:
Mr. Lavigne states that new information should be provided noting a new proposed location of the house. Discussion ensues regarding the filing fees and process of a new application. Mr. Erwin requests to continue the case to the next meeting. Andrea Korson makes a motion, second by Nona Holmes, to continue the case to October 22, and the applicant shall provide amended plans by October 8. Motion passes unanimously; 5/0.

New Cases:
Case #07-18: Toni Rogers, Gulf Rd. Map 117; Lot 41. Applicant is seeking a special exception under Article 1.04 (C)(3) to construct a 24’x36’ structure on a non conforming lot with no road frontage (Class VI road). Atty. Mark Puffer is present along with Ms. Rogers.

Mr. Pender 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.

Atty. Puffer states that they do not feel that a special exception is necessary as Sections 3.01 and 3.02 refer to newly created lots and this lot exists. Atty. Puffer explains that the lot is on Gulf Rd. There is 268’ along Gulf Rd. and 150’ of frontage along Cove Rd. Atty. Puffer states that Ms. Rogers is proposing a house and adds that all setback requirements have been met. Mr. Hickey states that a state approved septic system has been received. In closing, Atty. Puffer states that Ms. Rogers has met all of the requirements.

Mr. Lavigne asks about location of any Hydric B soils. Atty. Puffer states that the 50’ requirement has been met.

Atty. Puffer provides copies of letters from the abutters, Mr. and Mrs. Boyce, and Terrance Southwick, who are in attendance. No additional abutters are present. Mr. Pender reads the abutter’s letters.

Mr. Lavigne makes a motion, second by Ms. Korson, to grant the special exception based on the fact that all criteria have been met. Motion passes unanimously; 5/0.

Case #07-19: Robert Braun, 216 Long Pond Rd. Map 207; Lot 32. Applicant is seeking a variance under Article 1.04(C)(6), 3.01(B)(2), 3.01(C)(1), and 3.02(B) to construct a 12’x30’ addition and a 8’x34’ deck on a non-conforming lot of .29 acres where 2 Ac is required, within the 12’ setback, and no road frontage (60’ on a private road) where 150’ is required.

Mr. Braun is present. An outstanding balance of $20. is received.

Mr. Pender states that a certified plot plan is required and has been provided. Mr. Braun states that the septic location was determined by a neighbor’s survey.

A discussion is held regarding the proposal. Mr. Hickey states that the proposal is for an addition to the existing structure already within the setback. Mr. Braun requests to continue the case to October 22.

Mr. Lavigne asks if there is an existing well. Mr. Braun replies no and explains that this is a seasonal residence. There is no heating system. He adds that there is an existing septic system; however, a new plan has been approved. Further discussion is held regarding a need to move the septic tank. Mr. Lavigne states that the septic design is being used as the plan and shows the house being built over the septic. Ms. Smith states that a plan cannot be submitted with additional information added without permission from the designer. Mr. Braun adds that the structure is on piers and he will propose the same. Ms. Holmes makes a motion to continue the case to Oct. 22. Mr. Lavigne seconds and the motion passes unanimously; 5/0.

Case #07-20: Douglas Peterson, Old Mountain Rd. Map 228; Lot 5. Applicant is seeking a special exception under Article 1.04 (C)(3), to construct a 4 bedroom home on a non-conforming lot, with no road frontage (Class VI road).

Mr. Peterson is present. A septic plan is presented. Mr. Peterson states that there is an approved state septic system and he provides the approval number: CA2007090007.

No abutters are present and the application is deemed complete. Mr. Lavigne asks if it is the intent of Mr. Peterson to improve the road. Mr. Peterson replies yes; however, not to Class V standards. He adds that power will be added and the proposal is for a 4 bedroom home. Mr. Peterson requests a conditional approval with a deadline of receipt of the approved state septic system.

(b) the well protection radius shall be 75’ or greater and may not extend beyond the building setback on an adjoining lot.

Mr. Pender states that the only item in question is the tangible approved septic system plan in which a number has been provided. Ms. Korson makes a motion, second by Mr. Lavigne, to grant the special exception based on the fact that all conditions have been met with the condition pending submission of an approved septic plan to be provided within 90 days. Motion passes unanimously; 5/0.

Internal Business:
Ms. Korson states that it is with great regret that she announces her resignation as a member to the ZBA due to the fact that her residence will be changing within the next week. She thanks the board for this time, and the knowledge that she has obtained and explains that it has been a pleasure to have served on the board. She will provide a written letter of resignation.

Additional discussion is held regarding membership. Mr. Lavigne states that he will not be able to attend the next meeting. Ms. Lane states that she has spoken to Mr. Wilkins who has no interest in being on the board at this time. After discussion, the board requests that Ms. Smith send a memo to the selectmen regarding the critical state with a need for alternate members.

Correspondence:
No correspondence has been reviewed.

Adjournment:
9:05 p.m. Bob Bailey makes a motion, second by Nona Holmes, to adjourn. Motion passes unanimously; 5/0.

Respectfully submitted,

Lisa Fellows-Weaver
Zoning Board Secretary

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