The Town of Northwood, New Hampshire

PRESENT: Chairman Bruce Farr, Vice-Chairman Roy Pender, Tom Lavigne, Nona Holmes, Alternate Jean Lane, Building Inspector/Code Enforcement Officer Dave Hickey, Board Administrator Linda Smith, and Board Secretary Lisa Fellows-Weaver.

ABSENT: Robert Bailey

VOTING MEMBERS: Chairman Bruce Farr, Vice-Chairman Roy Pender, Tom Lavigne, Nona Holmes, and Alternate Jean Lane.

MINUTES:
Roy Pender makes a motion, second by Nona Holmes, to approve the minutes of November 24, 2008, as amended as follows:
Page 5: Change Bury to Burt
Motion passes unanimously.

APPLICATIONS:
Case#08-22: Peter Aikens, Kramas Ln. Map 102; Lot 9. Applicant is seeking a variance to Article 3.01 (C)(1) permit a 1,720 S.F. residence on a vacant lot with no road frontage on a town or state road. Continued from November 24, 2008.

Attorney Tim Phoenix and Steve Oles from MSC Engineers are present representing Mr. Aikens who arrives later on in the discussion.

Atty. Phoenix provides an overview of the project. He explains the request is for a single variance to Article 3.01 due to the fact that this is a house lot that was approved back in the 1960’s and he refers to the approved subdivision plan. He adds that the 2 lot subdivision was approved in 1967 and updated in 1992 with a few boundary line adjustments. Atty. Phoenix states that the lot is the last lot at the end of Kramas Lane, a private right of way off of Caldwell Lane, also a private right of way off of Jeness Pond Rd.

Atty. Phoenix explains that the original variance request was for two variances; one for lack of frontage and the other for undersized lot. He adds that after the application was submitted he had a conversation with Linda Smith who informed him about the change in the ordinance in 2000 for lot size which includes lots over 80,000 sq. ft., the two acre requirement is not required to be met. Atty. Phoenix states that the lot was approved in 1967 and has been amended with lot line revisions. He states that this is an approved lot but does not have the required amount of frontage, 150’.

Atty. Phoenix states that he previously submitted a site plan of the home and it showed various features of the land. During the November meeting questions arose with the board members and neighbors, the case was continued with requests for additional information. Atty. Phoenix provides updated plans with the surveyor and wetland scientist stamps. He states that as far as the well locations, Mr. Oles located the neighboring wells and all locations have been delineated.

Atty. Phoenix states that the board had a question relative to the septic plan, previously submitted, whether it met NHDES’ current standards. He provides and reads a letter received from NHDES explaining that the system was inspected 2/5/01. The letter states that final approval is pending installation of all components and once the operational approval is issued the system then becomes a valid, usable state approved septic system.

Peter Aikens arrives at this time.

Mr. Pender and Mr. Lavigne review the November meeting minutes which includes a bulleted list of items that the board requested.
• A letter to be provided from either the health officer or from NHDES stating that the approval of the septic operation and system is still valid. Mr. Roy states that per the NHDES letter, the septic system is an acceptable system even though it is an older system.
• Wetland scientist stamp. Mr. Oles shows that the stamp has been provided.
• Surveyor’s stamp. Mr. Lavigne notes that the stamp has been provided.
• Well location be delineated. Mr. Pender asks if the proposed well is to be located in the front of the proposed house. Mr. Oles replies yes and adds that the well radii are also noted. He adds that the existing well is on the abutter’s property to the south and they are not sharing any wells.
• Setbacks delineated on the plan. Atty. Phoenix shows that the setbacks have been delineated as requested. Mr. Farr notes that there are no setback issues with the proposal.
• Number of bedrooms noted on the plan. Atty. Phoenix states that the number of bedrooms is noted in the application. He states that the total number of bedrooms is 3 as stated on the formal building permit application, which needs to be signed by Mr. Aikens. Mr. Aikens states that the total number of bedrooms is 3, total number of rooms is 7, and there will be two bathrooms. Mr. Farr asks about the living space. Mr. Oles explains that there is 900 sq. ft. on the first floor and it depends on how the second floor is designed. He adds that the proposal should be approximately 1,600 sq. ft. The certificate of compliance with building codes is signed by Mr. Aikens. He also signs the building permit application to accept the accurate square footage.
• Note number of stories of living space. Mr. Oles states that the proposal is for a 2-story cape.

A discussion is held regarding the proposed basement. Mr. Aikens explains that he will try for a full cellar; however, will do a partial crawl space at a minimum. Mr. Oles notes that they will take into consideration the information they have received from abutters regarding their wet basements.

Further discussion ensues regarding the square footage of the home. Mr. Lavigne notes that the original application noted 1,720 sq. ft. Mr. Hickey notes that the new building permit application states 1,872 sq. ft. Ms. Smith adds that this new application is dated 10/27/08 and the application reflects the building permit application that was submitted 10/29/08. She states that the amount is greater than what was noticed at the November 24 meeting. She adds that the amount in the public notice was 1,720 sq. ft. Mr. Farr asks what the applicant is requesting and Atty. Phoenix replies that the 1,720 sq. ft. was based upon a draft and now with further discussions and review, the anticipated needs are greater than the original proposal.

Discussion ensues regarding the proposed size and Mr. Farr requests an actual number. Mr. Aikens states that he would like the amount to not exceed 1,800 sq. ft. Mr. Farr asks for guidance from Ms. Smith as the amount has now increased 100 sq. ft. from the amount proposed and noticed. Ms. Smith states that the increase is about 5% and adds that the purpose of an abutters notice is to inform abutters that there is something being proposed. At this time, she states that abutters have been noticed and the increase is small. She would not have any concerns at this time. Based on that, Mr. Farr continues the case and requests that the building permit modification be dated today as it was received today. Atty. Phoenix states that the signature date is today’s date. Mr. Farr states that this is the document that the board will proceed with then. Ms. Smith requests that all figures on the building permits be amended to state “not to exceed 1,800 sq. ft.” The applicant complies.

Abutters present are George Chapman and Susan Burt who are representing Beverly Newall. Mr. Chapman asks for specific footage amounts. Mr. Farr replies that the proposal is now that the home will not exceed 1,800 sq. ft. and this is for living space only. Ms. Burt asks if this footage includes the garage. Mr. Farr states that this will not include the garage. Discussion ensues and Atty. Phoenix states that the 1,720 sq. ft. was total ground coverage; living space is 936 sq. ft. for the first floor and the second floor depends on if the home is a cape or a full two story home. He adds that if a cape, the main house would be around 1,400 sq. ft. and a room over the garage would be approximately 576 sq. ft. for a total of almost 2,000 sq. ft. Mr. Akiens adds that they originally planned for a room over the garage, which would be actual living space.

Discussion continues regarding living space over the garage and Atty. Phoenix states that his understanding is that the concern is height; beyond that the dimensions of the building, as stated on the plan, can not change without another meeting with the board requesting a variance. He adds that there may have been some confusion as far as the intended living space totals. He continues to explain that if the proposal is for a modest cape and a garage with a room over the garage, the living space will be 1,924 sq. ft. Mr. Farr feels that this would be a significant difference and be a possible different impact to the neighborhood. Mr. Aikens states that the 1,700 footage noted on the application was the actual footage of the foundation. Mr. Oles adds that it is the actual foundation imprint on the ground; the original impact and actual disturbance on the ground. Atty. Phoenix states that the plan does show the house area as ground coverage to be 1,720 sq. ft. He adds that he is not aware of any limitations under the town’s ordinances for living space square footage. Mr. Farr replies there is not; however, historically the board looks at the conditions of the variance and the affect to the neighborhood and in this case, the size of the dwelling may affect and impact the neighborhood. Atty. Phoenix states that in terms of the application and notice showing 1,720 sq. ft.; the amount noticed was accurate and the reason for the not to exceed statement was due to concerns to whether the application as noticed was accurate and whether to proceed. Atty. Phoenix states that it is accurate as the intention was to permit a 1,720 sq. ft. of ground coverage for the residence. He states that the actual total of living space is 1,926 sq. ft., which is determined by a 936 sq. ft. first floor, and ½ of that for a second floor, and 576 sq. ft. room over the garage. He adds that this is the request of the applicant. After further discussions, Atty. Phoenix states that 1,720 sq. ft. is the ground coverage, and 1,980 sq. ft. is living space.

Ms. Smith states that there was a previous comment made by Atty. Phonix that there is no limit on the square footage of living space when in fact there is; it is zero. She explains that the zoning ordinance does not allow building when there is no road frontage; therefore, the denominator is zero. She adds that anything above that exceeds what the ordinance allows.

Mr. Chapman asks if the footage is now being changed from 1,800 to 1,980 sq. ft. Mr. Farr replies that the proposal is not to exceed 1,980 sq. ft. Mr. Farr states that the footprint will stay the same and Mr. Oles adds that it will be as stated on the plan. Ms. Smith requests to retract her previous statement as she feels that the amount proposed is now beyond what she feels is a reasonable change. She notes that the amount may be an impact to some abutters who may not have come to the meeting based on the wording of the notice. Mr. Farr states that he feels that these changes are not significant and continues the case.

Atty. Phoenix notes that only one variance is actually requested because in March 2008 there was an amendment to lot size. He explains that a lot over 80,000 sq. ft. does not need to meet the 2 acre requirement.

Area Variance:
1. The proposed use would not diminish surrounding property values. Atty. Phoenix states that this is an approved building lot and nearly meets current zoning. It is 1/10 of an acre short. He states that when the lot was approved and then approved again through a lot line adjustment, possibly with some of the same neighbors, it was anticipated that the lot was approved to be a building lot. The home proposed meets all town setback requirements including wetland requirements. The only reason that they are here is that the lot is on a private road. He states that there are many lots like this in town with this circumstance and because this is a private road, part of which is the immediate neighbor’s driveway, it is impossible to get 150’ of frontage on the road. He adds that this is a relatively modest home and there is no need for setback variances. He states that the proposal is keeping in the character of the neighborhood.

2. Granting the variance would not be contrary to the public interest. Atty. Phoenix states that it is in the public interest to allow a property owner the reasonable use of their property. He states that the lot has been taxed as a building lot for a number of years so the town has treated the lot as a buildable lot and has valued as such. Building a house on the lot will increase the value and also increase the tax base, which is in the public interest. He adds that the lot is landlocked so if the variance is not granted nothing will be able to be built on the lot. The variance will increase the tax base and he adds that the town has on two occasions granted approvals to create the lot and then adjust the lot size and the granting of the variance is within the public interest.

3. Denial of the variance would result in unnecessary hardship to the owner. Atty. Phoenix explains that there are two forms of variances; use and area. He states that the use in this case is a permitted use; therefore, the law deems it as being a reasonable use. He states that this is an area variance due to the fact that it is dimensional; linear feet on a road.

a. An area variance will be needed to enable the proposed use of the property given the special conditions of the property. Atty. Phoenix explains that the test to be applied is “Boccia vs. the City of Portsmouth”. He states that frontage cannot be created and the only way anything can be built on this lot is with the variance; therefore, the property has special conditions. He adds that this means that this is an approved lot in a location where there is not a public or private road running along its length at any point; it intersects with the road perpendicularly and creates special conditions.

b. The benefit sought by the applicant (can or cannot) be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Atty. Phoenix explains that in this case it is not feasible or possible to use the property for any purpose without the variance; therefore, there is no method that is reasonably feasible to pursue other than the variance.

Mr. Farr requests the applicant to address the size of the house as being reasonable. Atty. Phoenix replies that if the lot met the frontage, there would be no need for the variance. He adds that since the house meets all other requirements that are the typical concerns, i.e. how does the house fit on the lot, does there need to be a setback variance or a height variance, a wetlands buffer variance. He states that all of these issues have been met; the house proposed is a reasonably sized house for the lot as no other variances are required. He states that if the house was larger, there would be other variances needed for setbacks and height.

4. Granting the variance would do substantial justice. Atty. Phoenix states that this is an approved house lot that the town approved by granting lot line revisions. It is on a private road like many others and some lots in the area utilize the same road to access their property. He states that the fact is that the only way to access this lot is through the private road and would be substantially just to allow the owner the reasonable use of their lot to build a home when the lot is being taxed as and approved as a house lot. He adds that it would be unjust to not allow the owner to build a reasonably sized home on their lot because there is not enough frontage.

Mr. Farr states that the approval was for a lot, not as a buildable lot. Atty. Phoenix replies that it is his understanding that when the planning board approves a subdivision they are approving the lot as a buildable lot subject to variances. He adds that once a lot is approved and zoning changes there is a reasonable anticipation that lot is a buildable lot. Mr. Farr adds that the town has not designated the lot as a buildable lot of the future. Atty. Phoenix clarifies that at the time of approval, the lot is a buildable lot.

5. The use is not contrary to the spirit of the ordinance. Atty. Phoenix states that there are a number of purposes of zoning ordinances: making sure adequate light, air space, population control so public services can be provided. He states that when the PB approved the lot and later approved by the lot line adjustment, in his opinion, this would have been in a view to the spirit of the ordinance to create a lot. He adds that since the lot meets all the requirements except frontage, the sprit of the ordinance has been met. Atty. Phoenix states that the lot has been taxed as a house lot and demonstrates the residential use. The variance request for distance is that there is nothing else that can be done with the lot except for building a house.

Ms. Smith states that it was stated by Atty. Phoenix she though it was stated that the original subdivision of the lot was done by the planning board. She states that the planning board did approve the lot line adjustment; however, her understanding is the original delineation of the lot was done by selectmen about 45 years ago. Atty. Phoenix refers to a plan approved May 1962, which shows that 8 lots were created. He adds that in 1962 there is another plan of land for Bennett, #10369, approved by the Northwood Planning Board in 1967. He notes that there was a boundary line adjustment approved in 1992. He explains that the approvals were done by the planning board.

Mr. Farr asks for comments from the abutters. Mr. Chapman asks if there is a full basement, will that area be living space. Mr. Hickey replies that that area will not be living space unless it will be finished. Atty. Phoenix adds that if that area were to be finished, they will need to reapply to the board. He adds that there is no intention to finish the area. Mr. Aikens adds that after discussions that he has had with the neighbors regarding their wet basements, he does not plan to finish the area.

Mr. Burt asks about the leach field delineation. He asks if Ms. Newall needs to redo the leach field, will there be a 20 ft. setback from the property line from the leachfield, property line, and wetland. Mr. Oles explains that there is a 75’ setback from the wetland to the septic and a 10’ side yard setback.

Ms. Lane makes a motion to grant the variance based on the fact that all 5 criteria have been met. Mr. Pender seconds and amends the motion to state that the house will be a maximum of 1,720 sq. ft. on the ground with living space not to exceed 1,980 sq. ft. and the proposed deck will not be an enclosed.

Ms. Lane agrees to the amendment and states that all criteria have been met and the plan is an acceptable proposal.

Mr. Pender states that he believes that all the criteria have been met. He explains that if the proposal was on a public road, there would be no need for any variances. He feels that this is a reasonable size house for an 80,000 sq. ft. lot and is not obtrusive to the surrounding buildings as it is not disproportioned.

Mr. Lavigne states that a three bedroom, two bath home is not excessive today and this is a normal proposal. He states that using 1,720 sq. ft. for a footprint is not excessive and is a reasonable use.

Ms. Smith provides comments for the board to review regarding the shoreland protection act and approval for RSA 674:41. Ms. Smith explains that RSA 674:41 is a statute that requires a building permit to be approved relative to certain approved roads. It is required to be approved by the BOS prior to building permits being issued. Mr. Farr states that these items are the responsibility of the applicant to obtain. He adds that if the plan is changed, the variance is null and void and if approval for RSA 674:41 is not received, it is an issue with the selectmen. Atty. Phoenix states that the shoreland permit is pending and the application for the selectmen is in process. Motion passes unanimously; 5/0.

Case#08-19: Bernard & Betsy Dunbrack, 21 Lower Camp Rd. Map 124; Lot 3. Applicant is seeking a variance to Article 3.01(C)(1), Article 3.02(B), and Article 3.01(B)(2) to permit a two bedroom addition on a .34 Ac. lot where 2 Ac. is required and no road frontage (100’ on private road) where 150’ is required. Continued from November 24, 2008.

Mr. Ralph Potter is present; he is the contractor and authorized with power of attorney to speak for the Dunbracks. Mr. Potter states that the proposal is to enlarge the two existing bedrooms. He states that the current 10’ x 18’ addition with a bathroom and bedroom will be removed and another existing bedroom will be removed from the main house and a new addition of 24’ x 6” x 22’ will be built. He adds that with the changes there will still be only two bedrooms and this will allow for closet space. He notes that there are no setback issues and the footprint will increase by 360’. Mr. Potter states that this is a one-story home. He further explains that the living room will also become bigger. The addition will be placed on sonotubes.

Mr. Potter states that this is a seasonal property used from May to October; however, they are not looking for just a seasonal variance. He adds that he has submitted a septic design to the state which has been temporarily approved due to pending shoreline permit from NHDES.

Abutters present are the daughter and son-in-law of the Dunbracks.
Mr. Lavigne asks how far the house is from the water. Mr. Potter replies that the whole addition will be within 250’.

The board agrees to address all variance requests at once.

Area Variance:
1. The proposed use would not diminish surrounding property values. Mr. Potter states that the variances will allow the owners to enable and enjoy their property and use the bedrooms. It is a seasonal summer cottage and the addition will allow for closets. He adds that the addition will enhance the property by making it more compliant rather than a camp and the neighbor’s properties will be better served as this will allow for plumbing facilities.

2. Granting the variance would not be contrary to the public interest. Mr. Potter states that the only reason that he is here is that the lot is substandard. If the lot were bigger, all requirements would be met. He adds that the lot was approved in 1963.

3. Denial of the variance would result in unnecessary hardship to the owner. Mr. Potter states that the owners would like to enlarge the camp for full use of the space as the camp is very small.

a. An area variance will be needed to enable the proposed use of the property given the special conditions of the property. Mr. Potter states that the existing building is on a substandard lot and on a private road. He states that the road is designed to go through to 50’.

b. The benefit sought by the applicant (can or cannot) be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Mr. Potter states there is no additional land to be purchased. He adds that the town owns the neighboring lot; however, this is still a private road.

4. Granting the variance would do substantial justice. Mr. Potter states that the variance will enable the owner to use the property and make the building more useable in the future. He adds that the variance is only needed for the lot size and the road frontage.

5. The use is not contrary to the spirit of the ordinance. Mr. Potter states that the use is not contrary as the lot is a buildable lot; however, the new requirements voted by the town cannot be met.

Abutters present are Larry and Sharon Plourde. Mr. Plourde states that he supports the proposal and believes that this will enhance the property. He adds that there are no encroachments visually or to any of the abutters. He states that this is within the current use and the spirit of the ordinance.

Mr. Potter states that the septic system is currently in and working. The new design is proposed should the current system fail. He adds that the state will provide copies when available. Mr. Potter shows where the well is and that it is 75’ from the septic.

Ms. Smith provides comments for the board. She states that there are items that need to be addressed prior to the issuance of any building permits. She adds that the board, by this process, is not giving the applicants any approval for RSA 674:41 II; however, this matter does need to be addressed by the selectmen. She notes that the NHDES shoreland permit needs to be consistent with the plan approved by the board.

Mr. Farr asks if these are boiler plate conditions that need to be applied to all applications. Ms. Smith states that she spoke to town counsel regarding the shoreland permits and counsel recommended that all applications contain language to put the applicant on notice regarding the shoreland protection act so that it is clearly understood that should the board approve a variance and there are changes made, the applicant may need to come back. She adds that this is why it is important for the shoreland permit to be obtained prior to coming to the ZBA.

Mr. Farr refers to the note regarding all fees being paid and asks if there have been problems with this. Mr. Farr asks if it is something that this change is necessary. Ms. Smith replies that this is something that the planning board typically adds to approvals. Mr. Farr states that if there are problems, then the procedures can be changed; however, feels that this is just boiler plate items.

Nona Holmes makes a motion to approve the variance, based on the fact that all 5 criteria with the conditions that the NHDES shorland permit will be obtained. Jean Lane seconds. Ms. Holms feels that this is a reasonable adjustment to the house. Mr. Lavigne asks about the sizes. He asks the lot size. Mr. Potter replies 100’ x 154’, 15,000 sq. ft. He adds that the old section has 2 bedrooms and they are just moving them around and making the living room larger. Motion passes unanimously; 5/0.

Mr. Lavigne makes a motion to recommend Doug Pollock as an alternate member of the board. Ms. Lane seconds. Mr. Farr thanks Mr. Pollock for attending the recent meetings and learning the process. He encourages the selectmen to appoint Mr. Pollock to the board. Motion passes unanimously; 5/0.

Correspondence
All correspondence is reviewed.

Adjournment:
Ms. Lane makes a motion, second by Mr. Pender, to adjourn at 8:37 p.m. Motion passes unanimously; 5/0.

Respectfully submitted,

Lisa Fellows-Weaver
Zoning Board Secretary

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