The Town of Northwood, New Hampshire

PRESENT: Chairman Bruce Farr, Vice-Chairman Roy Pender, Nona Holmes, Alternates Jean Lane and Joseph Knox, Board Administrator Linda Smith, and Board Secretary Lisa Fellows-Weaver.

VOTING MEMBERS: Bruce Farr, Roy Pender, Nona Holmes, and Alternate Joseph Knox.

ABSENT: Robert Bailey, and Tom Lavigne who has called in and left a message that he is out of town and unable to make it back.

MINUTES:
Nona Holmes makes a motion, second by Roy Pender, to postpone the minutes until the next meeting. Motion carries; 4/0.

Case #08-06: Jon Hendrick, Map 202; Lot 4. Applicant is seeking an appeal to RSA 674:41 II for lack of frontage, to permit the construction of a single family residence.

Case #08-07: Jon Hendrick, Map 208; Lot 3. Applicant is seeking an appeal to RSA 674:41 II for lack of frontage, to permit the construction of a single family residence.

Mr. Farr notes that there will only be four members voting tonight and asks Atty. Tanguay, who is present representing Jon Hendrick, how he would like to proceed as there have been previous requests for a five member board. Atty. Tanguay asks if Ms. Lane will be sitting in as there is only a 4 member board this evening or if the board is again requesting Ms. Lane to recuse herself. Mr. Farr replies that the board will be asking Ms. Lane to step down from these cases and notes that Mr. Knox was asked to sit on the board in Ms. Lane’s place. Atty. Tanguay asks if Ms. Lane could now sit in to replace the empty seat of Mr. Lavigne. Ms. Lane states that she does not want any problems and would like to sit on the board for these cases.

Atty. Spector, representing the selectmen, states that she has previously requested that Ms. Lane not sit on the board for the Hendrick cases based on a conversation Ms. Lane has had with the Troys noting that the cases are difficult for her to make a decision on due to the fact that there is a friendship with Mr., Hendrick. In addition, Ms. Spector adds that Ms. Lane has recused herself from the other Hendrick cases and she is requesting that Ms. Lane recuse herself from the Hendrick cases on the agenda this evening.

Mr. Farr states that he feels that it is important that the board keep everything very clean as the members work through the case. Based on selectmen’s request, Mr. Farr makes a motion, second by Mr. Pender, for Jean Lane to be recused from the Hendrick cases this evening. Motion passes unanimously; 4/0.

Atty. Tanguay states that he objects to Ms. Lane being recused from the cases as she has not indicated that her decisions could not be fair and impartial.

Atty. Tanguay states that they are prepared and will proceed with the four member board.

Atty. Tanguay speaks to the terms of the application. He explains that there has been a long session held previously and many documents were submitted. He requests that all documents, exhibits from Case 08-08, Map 105/Lot 25 be marked again and provided for this file.

Ms. Spector states that she does not have any objection to Atty. Tanguay’s suggestion with exhibits being carried over into these applications. In addition, Ms. Spector states that she and Atty. Tanguay have discussed the possibility of combining the two Hendrick hearings for tonight as they are very similar applications. Atty. Tanguay agrees and there are no objections by the abutters. Mr. Farr states that he does not have any objection with the proposals. Mr. Pender makes a motion, second by Mr. Knox, to address cases 08-06 and 08-07 together this evening. Motion passes unanimously; 4/0.

Atty. Tanguay states that they are seeking relief under RSA 674:41(II) for map 208; lot 3 and map 202; lot 4; cases 08-06 and 8-07, both existing lots of record. They are trying to access these two lots for the purpose of building two residential structures without the necessity of upgrading the road but rather using the existing road. Atty. Tanguay explains that the existing road was built with grant money from the USDA to create a road sufficient for logging and management on the larger tract 105/25. He adds that they do not want to upgrade the road so that the road is not opened up for further development. He refers to RSA 674:41 relative to frontage requirements on roads and that there can be no new structures unless there is frontage. In addition, he refers to the types of roads that are governed by the statute. He states that this is not a private road as it does not meet the 9/1990 NHDOT standards, previously reviewed, of 0-50 car trips per day with 18 ft. wide and 2 ft. shoulders, and a gravel surface. He explains that the existing road is gravel with the depth regulation; however, it is with an average of only 16 ft. wide and there are no shoulders. Atty. Tanguay continues to explain that should the applicant go to the trouble of meeting the standard, the road would then be classified as a private road, per statute. This would now grant the other residents with frontage the ability to seek a building permit.

Atty. Tanguay states that the Master Plan suggests that the town does not want to develop in this particular area; no new subdivision and no new lots. He feels that they are walking a fine line between meeting the standards of a road that is safe and not up to the standards of a private road. He explains that these lots that have been discussed by the board before. As far as the town’s regulations, he explains that these are buildable lots of record, except for the state statute. He adds that they do not have the necessary frontage to build. They are not trying to subdivide and the lots will not be able to be subdivided as the lots do not meet the necessary criteria of frontage for a subdivision. However, they are proposing to build but without allowing other people to come forward saying that they satisfied the frontage requirements and can obtain a building permit. He notes that this plan is not a subdivision, no new lots are being created, and the subdivision regulations are not applicable.

Atty. Tanguay explains that they are not here under RSA 674:41(I) as there is no frontage; however, they are here under 674:41(II). He explains that Corson Drive ends and there is a stretch of the road, approximately 600 ft. which leads to the northern edge of map 105, lot 25. In order to get to map 208, lot 3, you would leave the existing woods road and go another 57 ft. to get to the lot. Therefore, a new section of road would need to be built to specifications required by the grant, previously noted. To access map 202; lot 4, you would continue on the existing woods road another 800 ft. then diverge and build a new road another 800 ft. in order to access 202/4. He states that the concerns are the same; but in one case there is a short distance to cover and the second case there is a much longer distance to cover.

Atty. Tanguay explains that the purpose of RSA 674:41 is for safe access. He refers to the letter from the police chief, previously provided, which states that he has not had any issues with accessing the site and the access was good. In addition, he refers to the fire department’s letter which states that they are satisfied with the road provided that the road meets certain weight requirements. Atty. Tanguay refers to the Leighton Logging Company letter, the company who built the road, which states that their equipment exceeds the weight specifications noted from the fire department. Atty. Tanguay states that they will build a turnaround, if required. So from a safety standpoint, he believes that the fire and police chiefs, have both indicated that the road as built without upgrades is a safe road. If the purpose is safety; it has been met.

Atty. Tanguay refers to “The Hard Road to Travel”, which states that safety of access is the primary concern. He adds that the selectmen’s attorney has also noted the same. He adds that if the denial relates to something other than the adequacy of the road, for example, the town wants the land to remain wild or preserved, and then the denial constitutes a taking, Keene vs. Burrows. He states that the evidence previously provided and reiterated tonight suggests that this road as built is safe and adequate.

Criteria:
Atty. Tanguay reads RSA 674:41 and proceeds to address the criteria as follows:
a. the enforcement of RSA 674:41(I) would entail practical difficulties or
unnecessary hardship; He states they believe that they have satisfied the requirements. The unnecessary hardship is not defined; however, it is not the same as a variance as it states practical difficulty or unnecessary hardship. The practical difficulty is that the alternative is to upgrade the road and make it to the state NHDOT standards. He explains that they feel that that is money spent unnecessarily and it will not make the road any better or any safer for the two lots addressed tonight or the previously addressed lot. The road as built is adequate for this amount of traffic. He adds that this is jeopardizing the goals of the Master Plan.

b. the circumstances of the case do not require the building or structure to be
related to existing or proposed streets. Atty. Tanguay states that there are no benefits or interpretations of case law. He refers to the March 3 minutes where Atty. Callen explained that the meaning of this is if there is a use that relies heavily upon the road that is related to the existing or proposed streets. For example he states a school, a fire station, industrial use, commercial use, store, which all of these are high traffic uses that require visibility and access. He adds that this is not the case for this road. The proposal is one house on one lot; 10+ acres each, they cannot be subdivided. These lots are for people who want to be on a road that is not paved. These purchasers would be self sufficient people that do not want a neighborhood. Atty. Tanguay states that a single family residence use is not a use related to the road. This is not a high density or high traffic use, which would require the presence of the road.

c. the construction of the structure will not tend to distort the official map; the
construction of the structure would not increase the difficulty of carrying out the Master Plan; Atty. Tanguay states that he disputes the “either/or” or “and” however, he will address both. He explains that he feels only one of the two needs to be addressed. The town does not have an official map and therefore the map cannot be distorted. Atty. Tanguay states that they believe that should the board allow the building on these two lots without upgrading the road any further, it will allow for safe access and safe construction on these lots and will not injure the goals of the Master Plan. Given the location of the property and the goals of the Master Plan for this area, the proposal will lessen the likelihood of a big development. He states that if the board does not approve the proposal, then the board is inviting the prospect for a larger development, cluster lots development, and therefore more kids in the school. This would be more than the proposed single house on the two lots. He states that he believes that the Master Plan is advanced by this type of proposal. This is a way to allow the existing lots to be used in a useful and meaningful fashion. He adds that the road does not become an official private road for further building permits. Atty. Tanguay states that all criteria have been met.

d. the construction of the structure will not cause the hardship to future purchasers; the construction will not cause financial impacts to the municipality. Atty. Tanguay refers to Atty. Callen’s explanation as noted in the March 3 minutes relative to undue hardship on someone and undue financial impact to the municipality. Atty. Tanguay states that a purchaser would know what they were getting into. He explains that Mr. Hendrick plans to put together an association for the end of Corson Dr. and he will ask residents to join and pay their fair share based on the amount of road that is theirs.

As far as an impact to the community, Atty. Tanguay states that the town is not being asked to build, maintain, or upgrade the road, or provide services. He adds that Mr. Hendrick has signed a waiver for services and there is no financial impact to the town. Therefore, he states that they feel that this satisfies all of the statutes criteria.

In closing, Atty. Tanguay states that the road is safe and this proposal is protecting an area as noted by the town that should be protected. If the proposal is done any other way, it means upgrading the road and opening up the area for more development. This proposal is allowing houses on an existing road.

Abutter Jim Kerivan states that the road does not meet any standards. The road consists of a small amount of gravel. He states that he lives in Strafford and both towns have trouble maintaining the roads in this area. He further explains the roads condition and the maintenance that is done; paving, and grading. Mr. Kerivan adds that he does not feel that this is the type of lot and the access that people would want for their homes in Northwood.

Abutter, Wayne Troy, states that lot 4 is contained in the Big Woods as defined in the Master Plan. Lot 3 is 90% in the Big Woods. He refers to the letters from prior meetings from the fire and police department regarding the adequacy of the road and questions as to how far the individuals went back to access the area and in which season they did access the lots as there is a difference between the seasons.

Atty. Laura Spector is present representing the board of selectmen who are in opposition to the request for relief.

Atty. Spector states that she has previously addressed the 4 and/or 6 criteria. She states that she has spoke to the authors of Land Use and Planning and The Hard Road to Travel and they both agree that there are 6 criteria that must be met.

Bruce Farr states that the board has previously deemed that there are 6 criteria. All board members still agree that there are 6 criteria required.

Atty. Spector states that these lots were described to be 57 ft. and 800 ft. from the end of Corson Dr. She explains that Corson Dr. only goes about 550 ft. so the next 300 ft. is not a part of the official Corson Dr. Atty. Tanguay agrees. Atty. Spector further explains that the lots are 900 ft. from the end of a town maintained road and 1,600 ft. from the end of a town maintained road. She refers to the subdivision regulations, which she states are not directly applicable, but can be looked to for guidance. These regulations limit cul-de-sacs to 1,000 ft. of road. The regulation is in place because the board is concerned with trees, utilities, and first responders. There is only one point of access and these concerns are increased by the road length. She explains that the purpose of frontage is so that homes will not be difficult for emergency personnel to access.

Atty. Spector states that the town is not trying to keep the land “wild” or to limit development. The town is saying that the criteria has not been met and this is not a safe situation.

Atty. Spector states that although a waiver of liability has been offered, first responders will still try to get to the homes and be heroes, which puts lives and equipment in danger.

Atty. Spector explains that RSA 674:41(II) was never intended to allow construction on lots with no frontage. Atty. Spector explains that in 1995 an amendment was adopted in response to a Supreme Court case. Now all lots need to have some type of frontage in order to be buildable. She adds that even if the RSA allowed the board to authorize building permits to be issued, all 6 criteria must be met, and the applicant is not able to meet the criteria.

Criteria
Atty. Spector reads RSA 674:41 and proceeds to address the criteria as follows:
a. the enforcement of RSA 674:41(I) would entail practical difficulties or
unnecessary hardship; She explains that there are a total of four lots being proposed to be developed in this immediate area. She states that no evidence has been presented as to why the applicant cannot upgrade what they claim to be a road in good condition to meet the town standards. She states that the road would need to be widened by 2 feet and 2 ft. shoulders on either side. She adds that the fact that these lots are existing lots of record is irrelevant. She states that the statute states no existing lot or tract shall be exempted. She adds that they are not existing buildable lots of record and refers to the planning board’s approval of the BLA that these are not buildable lots and the applicant would need to come back to the town if planning to build.

b. the circumstances of the case do not require the building or structure to be
related to existing or proposed streets. Atty. Spector explains that if a house is built on a road then the resident will need to access the road daily. She explains that this is not an agricultural building or a hunting cabin where access is only a few times a year but it is a house and the access will be a few times a day, at a minimum. The building needs to be related to the existing and proposed streets. She adds that this is hard criteria to meet and it is either applied literally or ignored. The legislature amends statutes often and could amend it or remove it.

c. the construction of the structure will not tend to distort the official map; Atty. Spector states that the town does not have an official map that the house would distort.

d. the construction of the structure would not increase the difficulty of
carrying out the Master Plan; Atty. Spector explains that this proposal would increase difficulty in carrying out the Master Plan. She states that if a private road was built, no one else would have frontage on the road. She adds that the concern about further development in the area occurring if this is not granted is an empty threat. She provides plans showing other lots in the area that do not have frontage. If the board allows the construction for this lot, she asks how many more owners will come before the board requesting long driveways and to build houses. She states that this is where the danger is with disrupting the master plan.

Atty. Spector states that there is a prime wetland in the area and because this is not a subdivision, any driveway built is not held to any type of standard. She further explains that there will be danger to the wetland from excess runoff from the driveway. In addition, she notes that this is an increase of use on the road and there is nothing provided regarding the affect that the additional usage will have on the wetland. She adds that this is against the Master Plan policy of not upgrading closed roads. There will be additional traffic for 4 lots where the road is now only used for logging; overall this is an impact of use.

e. the construction of the structure will not cause the hardship to future purchasers; Atty. Spector explains that the statute states a hardship and there will be a hardship. The hardship in this case is the maintenance of long driveways and also the purchasers would be responsible to maintain Corson Dr. She explains that a homeowner’s association would only encompass the 4 new lots. She adds that there are 5 other lots and there is no way to require that these 5 other people join the association. Atty. Spector states that the purchasers may be responsible for more of Corson Dr. then they should be.

f. the construction will not cause financial impacts to the municipality. Atty. Spector states that the issues with the first responders have been noted. She requests the board members read the letters for the fire and police chiefs. She recalls that the chiefs both note the existing road and the standards for new roads and they request the road be built to standards; however, there is still no guarantee that they will be able to access the area. She adds that the town may see a petition to bring the road to Class V standards as further lots are developed beyond the end of Corson Dr. One lot may not create this; however, there are 4 applications that the board has reviewed all from this area. She states that the Supreme Court has stated relative to variances, the board can look at the cumulative impacts of the proposals. She states that the cumulative impacts presented are threatening to the town.

Ms. Roy states that the planning board has many concerns, as mentioned, in particular the length of the road. She adds that the board has been consistent in limiting road lengths for safety concerns. She states that in a rebuttal to Atty. Tanguay regarding the road, an engineered roadway would consist of drainage and the prime wetlands would also be considered.

In closing, Atty. Spector states that the applicant has not met the 6 criteria for either lot. She requests that the board deny the request for building permits based on RSA 674:41.

Atty. Tanguay requests to respond to some items mentioned by Atty. Spector. He states that the road was built as an engineered road not built to the standards addressed, but it is an engineered road. Mr. Farr requests copies of the specifications of the road. Mr. Hendrick states that two engineers have reviewed the road over the past month and have not completed their report. He explains that the road was built by the Natural Resource Conservation Service, engineered and designed, as a logging road. He explains that he was not completely happy with the road and these two engineers will be upgrading the road.

Atty. Tanguay states that he believes that the Troys are on this road and will benefit of claiming that they are on a private road. The claim that no one else is on the road is not an empty threat.

Atty. Tanguay states that Atty. Spector stated that the statute can be easily changed and has been changed. He states that one change addressed was that the fact that the lot is a lot of record does not allow for the right for a building permit; he agrees. He states that the statute does not say that there is no relief if you are a lot of record; it just states that it is not automatic. He adds that with all of the changes that are easily made to the statutes, Section II remains and he asks why it is there. Atty. Tanguay explains that Atty. Spector had explained that the Supreme Court has stated that it is not for the purpose of allowing building on lots with no frontage. He understands that would be the basic purpose by saying that they want frontage on certain roads. He then asks why section II is needed; there must be a purpose for it. If there was no purpose, then it could have been easily removed. He states that there is a section II due to the fact that there are circumstances that either the applicant chooses to not upgrade the road or can’t upgrade the road.

Atty. Tanguay states that the ZBA’s job is to determine when those circumstances occur and use common sense to come up with a solution that meets the purpose of the statute goals of the town. This is the common sense that the ZBA must come up with for the relief addressed by the ZBA. He requests that the board look at the situation and determine if the board can best accomplish what the Master Plan states.

Jon Hendrick refers to Mr. Troy’s comments regarding the Big Woods and reads Section 5.02(E) in the Northwood Development Ordinances. He states that this calls for 4 acre zoning and the lots proposed are 10 acre lots. Therefore, there is no prohibition regarding building in this area.

Mr. Hendrick states that the 1,000 ft. requirement for roads applies to subdivisions and this is not a subdivision. He adds that there is no law relative to long driveways.

Mr. Hendrick refers to Atty. Spector’s comments regarding the homes proposed being difficult to access and not safe. Mr. Hendrick states that he is not sure as to what this comment was based on as no facts have been presented as to why the area is not safe to access. He states that he can access the area now as have the fire trucks.

Mr. Hendrick states that the board has the ability to grant building permits to island lots and there is no frontage. He states that these lots are not island lots. He adds that he was granted special exceptions for these lots for lack of frontage. He has a septic design that meets state standards and a well that can be located far enough away from everything.

As far as the prime wetland, Mr. Hendrick states that lot 202/4 where 100 ft. is required, is 1,500 ft. The other lot is 600 ft. where 100 ft. is necessary. He states that these issues are not facts and are not relevant issues that need to be addressed.

Mr. Hendrick refers to the Northwood Development Ordinances and states that there is nothing stated that prohibits the board from granting the ability to build on one lot at a time, lots that are twice as large as what is necessary.

Mr. Hendrick states that he allows turn arounds on Corson Dr. for the school buses as this is the best site distance either way. He adds that the planning
board approved a 10 lot subdivision on Bow Lake Road. He states that Corson Dr. has the best site distance of any street on Bow Lake Rd.

Nona Holmes motions to grant the relief based on the fact that all criteria has been met. No second is provided and the motion fails.

Roy Pender makes a motion, second by Joe Knox, to deny the request based on the fact that the road does not meet the required conditions. Mr. Pender expresses concern with the road and with the access for emergency vehicles. He explains that he visited the site and the beginning of the road is gravel that drops down; some portions are fine and the bad spots do not meet the criteria. This could cause problems for fire trucks.

Mr. Farr refers to the comment addressed to the board regarding applying common sense. He states that the issue of one house being built on a 10 acre parcel is irrelevant and explains that the state has a statute with requirements that must be met. Mr. Farr continues and describes the road as a logging road. The standard does not address a year round use, only logging season. He asks what about the fall and the mud season. He states that the fire department stated that the road must support a fire truck. He adds that the police now need 4 wheel drive vehicles for areas in the town. Therefore, the roads are a real concern and properties need to be able to be accessed. Mr. Farr states that making the road 2 ft. wider is not an unreasonable requirement. He expresses concern with opening the door either way for further development. He does not feel that the board has been provided with evidence for any real practical difficulty regarding bringing the road up to standards. As far as circumstances for the house; access requires that it must be related to a street. He adds that as far as the Master Plan, these driveways are private and are not in accordance with the Master Plan, as it notes roads should be roads that can be used. Mr. Farr states due to the weather there may be times that the road would not be passable and therefore would be a hardship to future purchasers. There would be an impact to the town as a financial hardship for 4 wheel drive vehicles and that is a financial burden that the town does not need. In closing, Mr. Farr states that his opinion is that the applicant has not provided sufficient evidence to prove that he has met the conditions.

Ms. Holmes states that she believes people should be self sufficient no matter where they live. She states the urban conveniences that people expect with living in the country; these people should go live in the city. She continues and states that the town depends on the fire department and they should take care of their vehicles as maintenance is part of their job. She states that people should be able to live where they want.

Mr. Knox states that he feels that the fire department will still try to get to the house. He asks why the town would want to endanger the fire department’s members and the town’s equipment when it can be avoided by rebuilding the road. In addition, he notes that the road is over 1,000 ft. from a town road and it does not meet the criteria.

VOTE:
Nona Holmes - opposed
Roy Pender - in favor
Joe Knox - in favor
Bruce Farr - in favor.
Motion passes; 3/1.

Internal Businesses:
Mr. Farr states that he has met with Chris Brown regarding becoming an alternate member. The board’s process information will be mailed to Mr. Brown.

ADJOURNMENT:
Roy Pender makes a motion, second by Joe Knox, to adjourn. Motion passes unanimously; 4/0.

Respectfully submitted,

Lisa Fellows-Weaver
Board Secretary

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