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Zoning Board of Adjustment Warner, NH Meeting Minutes of Members Present: Martha
Thoits, Chair, Joanne Hinnendael, Dennis Barnard, Eric Rodgers,
alternate Mike Holt, alternate Janice Loz, and alternate Rick Davies.
(Jean Lightfoot, recording from tape) Not present: Vice Chair Martha
Mical; alternate Ted Young. Ms. Thoits opened the meeting at 1.
CASE 01-2008: VARIANCE
Applicant: Christian
Hartshorn, Chalk Pond Investments Property Location:
Proposed Use: One
single family lot #1: Variance to Zoning
Article VI. C. 1. A. Request
an 84.37’ variance to the 200’ minimum frontage requirement. Ms. Thoits recognized Mr. Christian Hartshorn to explain the request.
He clarified that the Map 3-22 is in the Town of Mr. Hartshorn referred to Eugenia vs. Portsmouth, saying, that the
two main issues for an area variance was whether the variance is needed
to enable an applicant’s proposed use of the property, given the
special conditions of the property.
He said his proposed use is a single family building lot.
In addition, the court referred to whether the variance sought by
the applicant could be achieved by some other method reasonably feasible
for the applicant to pursue, other than an area variance.
He said if he were to engineer a road, he would need to come for
a variance. He said he does
not want a road for a single building lot.
He said that is his hardship – it would be unreasonable for him
to design and put in a road for one building lot.
So, he said that is why is applying for a variance.
He said the main hardship is the financial burden of having to
build and engineer a road for one building lot.
He said there would be no diminution in value of the surrounding
properties. A single
building lot on 107 acres would not be taking away from any of the value
of the other real estate of the abutters.
The proposed use would not be contrary to the spirit of the
ordinance. The proposed use
would be a single family building lot.
He continued, as far as the variance being a benefit to the
public – an additional building lot would create a possibility for an
additional home in a town that is desirable.
Granting a variance would do substantial justice – without
this, he said he is forced to endure the hardship of having to engineer
a road and incur the costs associated with it for one building lot. Mr. Hartshorn said because the two towns are involved, it is
important to read the statute carefully to see who has jurisdiction over
what. He said when he
applied for the building permit in Hopkinton, they were supposed to send
notification in writing about the potential use.
He said he wasn’t sure if they did or not.
Ms. Hinnendael asked if the reason that he had come into the
Board before was because the house was on the town line.
He said the issue with Hopkinton was his living in the house
without an occupancy permit. Ms.
Hinnendael said she understood, then, that this is new – that he
simply wants to subdivide. Mr.
Hartshorn said that he wants to make a building lot with Warner Map 3, Ms. Loz asked if he was here for a variance on the road frontage.
She said that Map 206, lot 21 is for the Town of A Board Member asked if the road frontage was all in Hopkinton.
Mr. Hartshorn said yes. Ms.
Thoits asked exactly where the road is.
Mr. Hartshorn indicated on the map where it is.
There was more discussion about the maps that Mr. Hartshorn had
– including the existing conditions and the proposed subdivision.
He said that currently there is frontage of 500+ feet.
Mr. Davies asked which lot number is the one where the house is
currently. Mr. Hartshorn
said it is Hopkinton Map 206, Ms. Hinnendael said that she thought that the OR-1 district needs to
be considered when it comes to road frontage since the majority of the
lot is in the OR-1 district, which has different criteria.
Mr. Hartshorn said for the OR-1 district, the requirement was 5
acres and 500 feet road frontage. A Board Member asked who Chalk Pond Investments is.
Mr. Hartshorn said it was him.
The Board Member asked if he bought the land in Warner and
Hopkinton in 2004 as Chalk Pond Investments.
Mr. Hartshorn replied yes. The
Board Member asked if, with the 500+ current frontage, he couldn’t
have one lot with 200 feet. Mr.
Hartshorn said he could not because then he would be non-compliant with
Hopkinton. Their requirement
is for 300 feet of frontage and 3 acres.
Another Board Member asked if that is why we are asking Hopkinton
for a joint meeting. Ms.
Thoits said yes, that she had spoken with the Chairman of the Hopkinton
Zoning Board of Adjustment. She
said their decision was that after we have met and understand the
request, then we will have a joint meeting with them.
Janet Krzyzaniak, who is the Chairman of the Hopkinton Board,
spoke with their attorney and their attorney said that we need a joint
meeting. Ms. Thoits
continued that we had to meet to fall within the 30-day requirement of
receiving the application. She
said that it was important that our Board understand what was happening.
A Board Member asked if Mr. Hartshorn had to engineer a road, where
would it be. Mr. Hartshorn
said it would be through the thin strip of land to the back of the lot.
There was further discussion about where the house is and the
proposed lot lines referring to the map.
Ms. Thoits asked if the Board were to give the variance tonight,
what would that allow Mr. Hartshorn to do.
He replied that it would allow him to move forward with a
subdivision of the lot. She
asked if he had plans to build anything on the new large lot right now.
He said no. He said
without a subdivision approval, the one lot would have to remain as one
building lot. Mr. Hartshorn
said that he realized it is complicated because of who really has the
final say on this. He said
he had just found the Churchill Realty Trust v. The City of Dover Zoning
Board of Adjustment case just recently since it had been decided in
January 2008. He said it
related to a family who owned some land with several apartment buildings
in Ms. Hinnendael asked how big the lot is that’s being subdivided.
Mr. Hartshorn said there are 2.75 acres plus or minus.
She then asked Mr. Davies if there was anything on the maps to
show what type of land it is. Mr.
Davies said no. Ms. Thoits
said that we don’t have anything to say about the house since it is in
Hopkinton. Ms. Hinnendael
said the land is in Warner and she said we can’t create a lot that
doesn’t meet our Zoning Ordinance.
She said she thought that we need to know what type of land it
is. There was further
discussion about what the Board’s responsibilities are in regard to
the type of land included in the proposed lots.
Mr. Hartshorn said that the proposed subdivision will also create a
tiny wedge that is in the Town of A Board Member asked about the designations of the wetlands on the
maps. Mr. Hartshorn said
they are not there. The
Board Member also noted that there is no baseline elevation and no
reference on slopes. Mr.
Hartshorn said it goes downhill from the road.
There was further discussion about what is wet and the slopes.
Mr. Hartshorn said the conceptual he had come up with was that
there would remain about 10 acres of buildable land, after taking out
all the wetlands and slopes. A Board Member asked about what the difference in elevation was from
one point on the lot to another. Mr.
Hartshorn said it was less than 20 feet difference.
He said he thought it was probably 12 or 15 feet.
Ms. Hinnendael said she thought that because the larger number of
acres of the lot was in the OR-1 district, then that should be the
controlling. Another Board
Member asked if Mr. Hartshorn had already tried to get the road variance
from Hopkinton. Mr.
Hartshorn replied no. There
was further discussion about other options for dividing the property and
potentially getting variances from the Town of A Board Member asked how Mr. Hartshorn came up with the lines that he
is proposing for the subdivision. Mr.
Hartshorn said it was in order to access the back of the lot.
Ms. Loz asked how the Warner Zoning Board of Adjustment has the
right to grant a variance for Hopkinton road frontage.
Ms. Thoits said that it is the RSA that says how to do it.
Ms. Hinnendael said that the town line is not the frontage, and
even in Hopkinton, he’s not meeting the frontage.
Mr. Hartshorn said he was able to understand the RSA better after
reading the Churchill Realty Trust case and the explanation that the
Supreme Court as to how they arrived at their decision.
Ms. Hinnendael said that we would take advice from our town
counsel. Ms. Loz asked if it
referenced where the road frontage lay.
Mr. Hartshorn said all the access with water and sewer was in
“An owner of contiguous
land in more than one municipality may treat such contiguous land as a
single lot, tract, site, or other division of land for purposes of this
title, notwithstanding the municipal boundary line, provided that:
“(b) When an owner has fulfilled or proposes to fulfill the
requirements of one municipality, through the inclusion of land or
improvements located in an adjoining municipality, such owner or the
owner’s successors shall not thereafter use that land or those
improvements in a manner such that those requirements of the first
municipality are no longer fulfilled.
This paragraph may be enforced by the municipality whose
requirements are to be fulfilled.” He said, therefore, that Hopkinton has had a jurisdiction over that
Warner land because he has to maintain the requirements that were stated
when the building permit was granted.
Mr. Hartshorn quoted from the Supreme Court decision in the Churchill
Realty Trust case:
“Petitioner contends that
subparagraph III addresses the situation in which a developer
borrows land from one municipality to satisfy zoning requirements
in an adjacent municipality.” Ms. Hinnendael asked when the original subdivision of the lots was.
Mr. Hartshorn replied, Mr. Davies asked why, when he placed the house, he didn’t place it
where there would be a more even split of the property, to allow for
more even frontage if there were a later subdivision.
Mr. Hartshorn said his intention originally was to place the
house entirely in Hopkinton. He
ended up moving it, not realizing how far he’d moved it, resulting in
part of the house being in Warner. The
house had to be placed where it is based on the slopes coming down from
the street. Ms. Hinnendael said that even if Mr. Hartshorn has a large enough
lot, it still has to have 2 acres of buildable land for the R-2
district. She said she is
concerned about the hills and the water on the property.
She said if we are creating a lot that doesn’t meet the zoning,
then we need to have that be a bigger lot to meet the zoning
requirements. She said it is
the Planning Board’s job to decide whether it is a buildable lot.
A member of the public asked if they were going to get to speak.
Ms. Thoits said she would close the Board Meeting and complete
the Board’s questions later. She
closed the meeting and opened the public hearing. Ms. Thoits asked if there were any abutters wishing to speak.
There was some side discussion among the public members and Mr.
Hartshorn. Roger DuBois and Amber Wyman of Mr. Hartshorn added that the Supreme Court responded to some of the
Superior Court decision, by saying:
“’Read as a whole, RSA
674:53 provides for full compliance with the regulations of all involved
municipalities with the exception of the situations where the impact
upon a municipality is only access.’
We believe such a statutory scheme would be unworkable, as it is
not difficult to imagine a situation in which the regulations of
adjoining municipalities could irreconcilably conflict. In addition, the
respondent’s proposed construction would allow the neighboring
municipality to prevent or otherwise regulate the entire project in the
first municipality no matter how slight the overlap into the neighboring
municipality. Because we
presume that the legislature would not pass an act leading to an absurd
result, Ms. Thoits asked if there was anything further from the audience.
There were no further comments.
She closed the public hearing and re-opened the meeting.
Ms. Thoits asked if there was anymore discussion from the Board
Members. Ms. Hinnendael said
that she thought that we should get more clarification on some of the
questions that have been raised. She
said one of the things she’s concerned about is the little wedge may
be creating a non-conforming lot in Hopkinton.
She said she thought we should consider what we would do if a
town created something like that in Warner.
Ms. Thoits said that’s why we need to have a joint meeting with
Hopkinton, which, hopefully, would satisfy that issue.
Ms. Hinnendael said she thinks it needs to be clarified what the
buildable land is on the proposed smaller lot, to be sure that it fits
into our building requirements. The
other question she asked is which zone is to be used – Hopkinton’s
R-3 zone or our R-2 zone. And,
if it’s R-3, then it doesn’t conform, but if it’s R-2, then it may
conform. She also said that
we need to confirm when the subdivision was made since if it were
subdivided in 2004, then, he should be waiting until 2009 to apply for
this. If that is the case,
and he just wants to further subdivide, it would require another 5 year
wait. Another Board Member
asked if it would be just a lot line adjustment or a subdivision.
Ms. Hinnendael said she would like to know if there were other
subdivisions and when. There
was discussion about the difference between lot line adjustments and
subdivisions. Ms. Thoits
said that it is the Planning Board’s job to do subdivisions, and she
recalled that Hopkinton’s attorney said that there has to be a joint
meeting of the Zoning and Planning Boards of Hopkinton and Warner.
She said the reasoning was that the Planning Boards could answer
questions that the Zoning Boards have, even though they can’t act
until the Zoning Boards have granted the variance.
Ms. Hinnendael MOVED to continue the hearing until we can set a date
with Hopkinton for a joint meeting.
Another Board Member SECONDED.
Ms. Thoits asked Mr. Davies to fill in for Ms. Mical.
The motion was PASSED unanimously. Ms. Thoits said that a meeting now must be set with the Town of There was discussion about letting the abutters know when the joint
meeting will be. Ms.
Hinnendael asked if it was going to be around the date of our next
scheduled meeting. Ms.
Thoits said that Hopkinton will have to post the meeting and will send
the abutter notices. She
said if there’s any other application, it will be difficult to do that
during a joint meeting. 2.
MINUTES Ms. Thoits asked if there were any corrections to the Ms. Thoits asked if there were any corrections to the 3.
REVIEW OF DRAFTS OF REVISED ZBA APPLICATION FORMS Ms. Loz asked if the word “application” was necessary on each
form. Ms. Hinnendael said
she disagreed. There was
discussion about how it makes it clearer.
Mr. Davies said he tried to look at it as an outsider and
therefore tried to make things clear.
Ms. Thoits said she liked that “application” is on there and
that the lay person may not see it as we do.
Mr. Davies said that Martha Mical had some thoughts on the forms
and asked if she had any suggestions.
Ms. Thoits said that she had heard nothing from Ms. Mical about
the forms. Mr. Davies
pointed out that the instructions were done from scratch, trying to help
people who really don’t know the procedures.
He pointed out that paragraph 12 might be a little strong.
Ms. Hinnendael said that she thought the more information you can
give people the better. Ms.
Thoits said she thought paragraph 12 wasn’t too strong.
A Board Member asked if this was something that the Town needs to
approve. Ms. Thoits asked
which rule was changed. She
said that we have always had the rule that is cited in paragraph 12.
The Board Member said that his concern that something is being
changed here that the Town needs to vote on as a whole.
Ms. Thoits said that she believes that these forms cover
basically what are in the ZBA procedures and are public information.
Ms. Hinnendael said she thought it was good to have the appeal
procedure in writing so that it can be handed out or posted on the
website. The Board Member
said he would add “certified” to number 12.
A Board Member referred to number 11, saying that he thought that the
phrase “date specified” should be removed because he could see
someone saying that they wanted the date specified right now, before the
Board has a chance to set it. Ms.
Thoits said it’s in there because we have a specified number of days
to consider something. There
was further discussion about number 11 among the Board Members.
Mr. Davies asked if perhaps these should be reviewed by Town Counsel.
Ms. Hinnendael said that the purpose was to make things clear to
people who come in. She said
she thought it was just a “help sheet,” which is consolidating what
is in the books. It was
agreed that it was not necessary to put this past the Town or the Town
Counsel. Mr. Davies said
that he understood that Ms. Mical had thought that only the Variance and
Special Exception Application form should be put up on the website, and
hold the other two forms in the office for the Appeal and the Waiver of
Dimension Requirement. He
said that others thought they should all be up on the website with the
instructions on top. Ms.
Hinnendael said she thought this was very informative for people who do
not understand the process on how to get before the Board.
Ms. Thoits agreed that we were trying to simplify it.
She added that they could always be changed.
Mr. Davies said the other thing he would add to each form is in
small font, the approved date on the bottom of each form.
Then, change that date as it is revised.
Ms. Hinnendael MOVED to accept the forms for use by the Zoning Board
of Adjustment. Mr. Rodgers
seconded. The motion was
PASSED unanimously. 4.
COMMUNICATIONS AND MISCELLANEOUS Ms. Hinnendael said that the court case decision has come out.
She said that they agreed with the residents.
She said that they did not agree with what we had to clarify.
Part of it’s been denied. Ms. Thoits reminded the members that the OEP April 26th
meeting will be open for application as of February 16th.
A Board Member said that the billing should go to the Town,
rather than being reimbursed. Ms.
Thoits said that all members have permission to attend.
The meeting was adjourned at approximately
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