Zoning Board of Adjustment

Minutes

January 20, 2010

Official as of February 22, 2010

Chairman Bruce Farr calls the meeting to order at 7:00 p.m.

PRESENT: Chairman Bruce Farr, Tom Lavigne, Bob Bailey, Nona Holmes, Alternate Curtis Naleid, Board Administrator Linda Smith, and Board Secretary Lisa Fellows-Weaver. Jean Lane arrives at 7:20 p.m.

VOTING MEMBERS: Chairman Bruce Farr, Tom Lavigne, Bob Bailey, and Nona Holmes.

ABSENT:
Vice-Chairman Roy Pender and Doug Pollock.

Ms. Smith provides a copy of the new statute regarding granting variances, effective January 1, 2010. 

Attorney Dennis Vachon states that Senate Bill 147, 2009 session, section 307:7, does not pertain to his case due to the fact the application was filed prior to that; it was filed on or before December 1, 2009. Ms. Smith agrees with the filing date. 

Case #09-09: Michael Holmes & Laura Stella, 3 Henson Ln. Map 105; Lot 49. Applicants are seeking a Variance to Section VII, Article (C)(1) to permit the applicant’s property to increase it’s nonconformity with the minimum lot size requirements, Section IV, Article (B)(2), and to exchange water frontage for road access as part of a joint development plan with the owners of Map 105; Lots 50 and 51. (Map 105; Lot 50 property currently owned by Timothy and Laurie Holmes; Map 105; Lot 51 property owned by William and Beverly Holmes).  

Mr. Lavigne confirms that there are three different lots; three different owners, and Atty. Vachon replies that only one is requesting a variance; although all are related. Atty. Vachon states that the variance will affect the boundary to one abutter. He adds

Atty. Vachon read into the record the Northwood Zoning Ordinances relative to this case. He explains that Map 105; Lot 49 contains .49 acres and they are proposing to reduce to .32 acres after a lot line adjustment with Map 105; Lot 50, which consists of .23 acres, which is being proposed to be increased to .4 acres.

Atty. Vachon explains the history of the area and the fact that three lots were purchased in 2006 by three couples, all family members. The three couples negotiated a common development plan, which is recorded at the registry of deeds along with the three lots of record. Under the terms of the agreement the applicants were to convey a half interest in the waterfront to Timothy and Laurie Holmes and they inturn were to provide the applicant with an access easement to Bow Lake Rd. The Holmes’ were to provide an access easement to William and Beverly Holmes in order to get to the back side of the property on Bow Lake Rd. The applicants and Holmes’ were to provide William and Beverly Holmes each a 6 ft. wide access easement along their respective sides of this newly established boundary so they could have access to Bow Lake. 

Atty. Vachon continues and explains that the applicant’s property is landlocked and became landlocked when the town discontinued a portion of Bennett Bridge Rd. He refers to a decree from July 2, 1940, also recorded at the registry of deeds. He states that at that time, the Town of Northwood conveyed the discontinued roadway to the Goldsmith’s. However, the title of a discontinued roadway in which the town only has an easement, reverts to the abutting land owner; each gets half of it. Release deeds were required from the abutting land owners in order to convey good title to Mr. Goldsmith.

Mr. Vachon explains that when Russell Welch conveyed his interest in this discontinued roadway to John Henson in 1939, he retained title to a triangular piece of land that was a part of the roadway. This included half of the frontage on the former Bennett Bridge Rd. and the consequence of this is that the owner lot 49, no longer had access to Bow Lake Rd. In addition, a seasonal cottage was built partially on the road and on the lot, which creates an encroachment. These became issues when these three lots were conveyed to separate parties, which is why the agreement was created.

Mr. Naleid asks if the three current owners bought these parcels from one family and Mr. Vachon replies yes. Mr. Naleid asks that they were aware of the situation and Mr. Vachon replies yes.

Ms. Lane arrives at 7:20.

Photographs are provided and reviewed. Mr. Vachon explains the locations of the photographs.

Mr. Farr asks if there are any abutters present. No abutters are present and no correspondence has been received.  

A discussion is held regarding the septic systems and wells for each lot. Mr. Vachon explains that currently there is a well on lot 51. He adds that this house has a drilled well and state approved septic with a leach field. He adds that the other two lots use garden hoses to access the well and he believes that they have holding tanks not leach fields. He notes that this is typical of season dwellings on the lake. Mr. Naleid asks if it is guaranteed that septic systems can be installed. Mr. Vachon replies yes and the primary reason for this is to make sure that there is enough land for a septic system and well for each lot. He states that he is not sure if test pits have been done at this time. He explains that the intent of the project is to make sure that the homes are in compliance with state law with septic systems and water source. He adds that the houses are for seasonal use.

A discussion is held regarding future property owners. Mr. Bailey states that the board must look at these as three separate lots; be year-round homes at some point in the future.  

1. The proposed use would not diminish surrounding property values. Atty. Vachon states that the proposed use of the property as a lake front residence is consistent with the use of properties in the area.  Without deeded access, the applicant cannot obtain bank financing. Although the applicant has made improvements to the property, bank financing is needed to make further renovations and improvements including the separate well and septic system. He adds that renovations and improvements to the property would enhance not diminish the surrounding property values.
 
2. Granting the variance would not be contrary to the public interest.  Atty. Vachon states that the proposed reduction of the lot size from .49 acres to .32 acres would not alter the character of the locality. He states that further down the road there are lots that are .32 acres of less. He states that the lot line adjustment would allow lot 50 to be more conforming from .23 acres to .40 acres. Atty. Vachon states that the proposed development plan by the applicant and the two abutters would not increase the intensity of the use on any of the properties. All three lots are currently developed with a single-family residence which has historically shared the use of the water frontage. 

3. Denial of the variance would result in unnecessary hardship to the owner. Atty. Vachon states that the applicant’s plan is for a permitted use and the variance is needed from a practical perspective to implement this use.
a. An area variance will be needed to enable the proposed use of the property given the special conditions of the property because: Atty. Vachon states that the property is landlocked and has no access to a public right of way. The only reasonable means of access to a public way is over an existing driveway that crosses the abutter’s property.   
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. Vachon states that there is no other reasonable way for the applicant to obtain access to Bow Lake Rd. other then over the existing driveway. The abutter has agreed to provide access in exchange for getting half of the waterfront. Also, without the deeded access, the applicant cannot convey marketable title to his property nor can he obtain bank financing for improvements. He adds that without the lot line adjustment, the applicant has a financial hardship to being solely responsible for the high real estate taxes on the water frontage even though it is a shared use. Atty. Vachon continues to explain that this process could be done with easements; the easements would never address the high taxes on the waterfront. This is an unnecessary hardship.

4. Granting the variance would do substantial justice. Atty. Vachon states that denying the applicant an opportunity to obtain the deeded access to his property is a private loss that is not outweighed by any gain to the general public; that is, the general public does not benefit from the applicant having a property that cannot be financed or sold with marketable title. If the variance is granted, the applicant and abutters’ properties would continue to be of a size and used in a manner that is consistent with the areas present use. Atty. Vachon states that the proposed lot line adjustment would have the additional benefit of eliminating the encroachment of the abutters building onto the applicants’ property.

5. The use must not be contrary to the spirit of the ordinance. Atty. Vachon states that granting the variance would not threaten the public health, safety, or welfare. He states that the requested variance would enable the applicant and abutter to improve their properties. Each property would end up with sufficient land for much needed private water systems and upgraded septic systems. He adds that the minimum lot sizes are intended to prevent over development

No abutters are present and no correspondence has been received.

Mr. Lavigne states that whether or not the variance is granted or not, it will not determine whether it will pass the state requirements for septic systems. He adds that he believes that this is a good thing as something is being cleared up. He states that there is a lot going on with these three pieces of property and there will still be just three parcels when the project is done. He adds that he is not seeing where the 5 conditions are contrary to the proposal only because there is a certain amount of property and when completed there is still the same amount of square footage. Mr. Lavigne makes a motion, second by Mr. Bailey, to grant the variance based on the fact that all 5 criteria have been met. A discussion is held regarding a maintenance agreement. Atty. Vachon states that it is his understanding that Timothy Holmes has agreed to take full responsibility of the road way. This issue will be addressed further with the planning board. Mr. Farr feels that this is an improvement to the situation and there will be no impact. Motion passes unanimously; 5/0.

Case #09-10: Wayne Caterino, Smith St. Map 116; Lot 104. Applicant is seeking a Variance to Section IV, Article (B)(1)(b)(2), (B)(1)(c)(1), (B)(2)(b) to permit a single family residence on an undersized lot of 0.35 acres and no road frontage (130’ on a private road) where 150’ is required. (Property currently owned by Glenn and Sandi Blanchard).  

Atty. Tony Martz is present representing the applicant Wayne Caterino who is also present. Mr. Martz states that he first became involved with this issue when Linda Smith raised concern if this was an actual lot of record. He states that he submitted a letter today addressing the issue and as a legal perspective, the issue is whether this lot is a separately described lot by deed prior to an enactment of zoning. He states that the existing ordinances are dated 1999 and he understands that there was a 1970’s era ordinance. He states that if this 1970’s version was adopted prior to April 1, 1970, then he will need to have additional title work done showing that the property is separately described, which is the legal requirement in NH since Northwood’s ordinances do not specifically define a lot of record. Atty. Martz states that he needs to address the lot of record issue as a preliminary step.

Atty. Martz states that he has received a letter from Orr and Reno tonight indicating that Pine Point Association owns the private road, Smith Street that services the frontage for the variance application. He adds that they are relying on an un-built portion of Smith St., which stops at the Blanchard’s house, continues beyond the property and on to a constructed portion. He states that he would like to resolve this issue first.

Atty. Martz states that another issue is if this is lot of record prior to the adoption of the ordinance and is under 80,000 sf, under the existing ordinance, it means that they need a special exception, which raises a notice issue.

In addition, Atty. Martz states that with respect to the frontage, he questions what the correct request should be. He states that these should be resolved procedurally so that the issues can be property noticed. He requests to continue the case to the February 22 meeting, during which time they will resubmit, if necessary, for a special exception and/or an administrative appeal. Atty. Martz states that he would like to have the abutters’ comment so that any additional issues could also get addressed.

Atty. Martz states that the Blanchards own two lots, bought separately at different times. Currently, one lot has a residence on it and the other lot is a vacant lot. He states that they are trying to obtain the authority to build on a Class VI Road and then build a single-family home on the lot.

Mr. Lavigne makes a motion to continue Case 09-10 to February 22, as there are some outstanding questions that need to be addressed. Mr. Bailey seconds the motion.

Arnold Burke from Pine Point Association states that he would like to clarify the use of Smith St. He explains that this is a private road that was deeded to the association by the Cole family in 1966. He states that they maintain the road up to a 30 ft. barrier, right up to Gulch Mountain, where there was vegetation of brush and trees. In December, Mr. Caterino excavated through this brush to access his property. Mr. Burke states that this road did not exist prior to the excavation. A letter authorizing Mr. Burke to represent the Pine Point Association has been provided. Mr. Farr states that this issue will be addressed at next month’s meeting.
 
Atty. Martz notes that he believes that there is a well radius issue even under the special exception.

Natalie Mitchell asks for clarification of lots.

Donna Lafond asks where the access is. Mr. Burke replies they are looking to access Smith St. off of Pine Point.

Mr. Lavigne asks about the location of Ms. Mitchell’s house. Ms. Mitchell states that the road is a part of Gulch Mountain Acres. She states that the road does not lead to the Blanchard property; it leads to her property. Mr. Farr states that this issue will be addressed at the February meeting.
 
Ms. Lafond asks what the intent is for the access way. Atty. Martz replies that the intent is to access the property from Smith St. from Pine Point and he will further research this issue now that Pine Point has raised the issue regarding the road.

Mr. Naleid states that in researching the deed, there is a lot of detail preceding 1970 and he hopes that it will be presented to the board in a clear manner. 

Ms. Holmes requests that there be a plan provided that will indicate the well. Atty. Martz states that they will show a larger plan showing the septic and well.

Mr. Farr asks if the abutters and applicants can make the February 22 meeting. All reply yes. Motion passes unanimously; 5/0.

Case #10-01: David & Sandra Bradley, 230 Harmony Rd. Map 123; Lot 6. Applicants are seeking an Equitable Waiver of Dimensional Requirements for a side setback less than 20’ for the existing barn; Section IV, Article (B)(4)(b).  

Ms. Smith states that the applicant has requested that the board hear this case in his absence. She states that the case came in after the first of the month in December. There was a closing scheduled for the transfer of property and when they got to the closing, the title company determined that there was a corner of the barn that is 16 ft. from the property line where 20 ft. is required.

Ms. Smith states that she mentioned the equitable waiver process to the applicant. She explains that the property has been conveyed and the new owners are occupying it; however, this still needs to be resolved. She states that the previous sent the fees in and requested the board consider the case.

Ms. Smith states that the evidence has been provided. She states that Mr. Bradley no longer owns the property; however, he did at the time the application was provided. Mr. Farr asks if the current property owner is  applying. Ms. Smith replies that Mr. Bradley applied when he owned the property and the property has been conveyed since this point. Mr. Farr asks if Mr. Bradley owned the property on December 17 when the application was received and Ms. Smith replies yes. 

Mr. Lavigne states that the barn was built and a permit was obtained in 1990. He asks if the permit was issued why was it not legal in 1990. Ms. Smith states that a permit was obtained requiring that the barn was 20’ or greater from the property line. She states that the side setback of 20’ has been the requirement since 1970. Ms. Smith states that the encroachment was never discovered. Mr. Farr states that the State of NH passed the equitable waiver option when it appears to be an honest mistake. Mr. Lavigne states that the barn has been sold twice, the barn is still there, and nothing has changed. Mr. Farr replies yes.

Mr. Farr reads the applicant’s responses to the application.

1. Does this request involve a dimensional requirement, not a use restriction. Yes it does, a measurement.

2. a. Explain how the violation has existed for 10 years or more with no enforcement action, including written notice, being commenced by the town. The barn has been there for 11 years and the town has never taken any action and no notification has been provided noting that there was a violation.

b. Explain how the nonconformity was discovered after the structure was substantially completed or after a vacant lot in violation had been transferred to a bona fide purchaser. The property has been sold as least twice since the barn was built. The title company found no notification of a setback issue. 

c. Explain how the violation was not an outcome of ignorance of the law or bad faith but resulted from a legitimate mistake. The town issued a permit on April 21, 1990 with a notation it was completed on July 30, 1990.

3. Explain how the nonconformity does not constitute a nuisance nor diminish the value or interfere with future uses of other property in the area. It poses no problem for the 50 acre lot next door and the nearest house is over 2,000 ft. away.

4. Explain how the cost of the correction far outweighs any public benefit to be gained. It would be cost prohibitive to move and would  substantially devalue the property, which is under contract to be sold in December.

Mr. Naleid states that by granting the equitable waiver it allows the barn to remain as it is. He asks since this is not a variance, there would not be a  grandfathered footprint that they could tear the barn down and rebuild another in the exact same location. Ms. Smith states that this matter would be addressed under the zoning ordinances under nonconformity. 

Tom Lavigne makes a motion, second by Bob Bailey, to grant the  equitable waiver of dimensional requirements based on the fact that all criteria have been met. Motion passes unanimously; 5/0.

MINUTES:
Tom Lavigne makes a motion, second by Bob Bailey, to approve the minutes of November 23, 2009, and December 28, 2009, as written. Motion passes unanimously.

Adjournment
Mr. Farr makes a motion, second by Mr. Bailey, to adjourn at 8:16 p.m. Motion passes unanimously; 5/0.

Respectfully submitted,
Lisa Fellows-Weaver Board Secretary