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Zoning
Board of Adjustment Warner,
NH Meeting
Minutes of May 14, 2008 Members
Present: Martha Thoits,
Chair, Dennis Barnard, Vice Chair, Mike Holt, Eric Rodgers, and
Alternates Rick Davies and Gordon Nolen. (Jean
Lightfoot recording) Not
present: Janice Loz and Alternate Ted Young. Ms.
Thoits opened the meeting at 7:00 pm.
The roll call was taken. 1.
CONSULTATION Applicant:
Matt Alosa, Patrick McNicholas, attorney Owner:
Timothy Smith Property
Location: Hartshorn Lane,
Warner, NH, Map 26, Lot 20, R-2 zoning district. Consultation
about how to accomplish selling three residences separately that are on
the same lot. Ms.
Thoits recognized Patrick McNicholas who was there representing Mr.
Alosa and Mr. Smith. Mr.
Alosa was also present, but Mr. Smith was not present.
Mr. McNicholas said he had permission (though not written) to
speak for Mr. Smith. He
explained that Mr. Alosa has an agreement to buy the property from Mr.
Smith. Mr.
McNicholas had copies of the recorded subdivision plan and distributed
them. He said the
preliminary survey was done on the property for Mr. Smith by Provan and
Lorber. He said the
properties being discussed are Tracts 1, 3, 4, 5 and 7 on the south side
of Hartshorn Lane. He said
that the property on the north side of Hartshorn Lane, Map 26, Lot 11,
which are tracts 2, 6 and the northerly part of 7, are in separate
ownership now. He said he
is here to discuss the properties on the south side of the road.
He
said that the merger theory is the way to look at this issue.
There are five separate tracts on the south side of the road and
those five tracts pre-date the Zoning Ordinance enactment.
These tracts were acquired by the Mundy family between 1933 and
1962. They were all created
and conveyed separately before the passage of the Zoning Ordinance in
the late 1960’s. The
three structures which are on the property, which are 25, 29 and 31
Hartshorn Lane, have been there for quite some time and perhaps from
before the enactment of the Zoning Ordinance.
He said that they are trying to sell the three homes as three
separate parcels. He said
the Town has taxed the entire parcel as one lot for a long time.
He added that the Supreme Court has said that how the property is
taxed is not necessarily controlling.
He said that usually that is for the Town’s benefit because
usually these situations come about because someone wants to build.
In that case, the town has been taxing them as separate lots, and
the owner is trying to say that because they’re taxed separately, they
want them treated separately. The
courts have said that you cannot go by how they’re taxed.
Mr.
McNicholas continued saying that no one wants to build anything in this
case. He said all the
merger fights that have gone to the Supreme Court have been over someone
wanting to build on a vacant lot, like tract 5.
In those cases, the owner is trying to say that, for example,
tract 5 is a separate lot because it was created in 1936, and wants to
build on it. The Town says
it is a substandard lot and the owner argues that it’s grandfathered.
He said that this case does not involve building anything new.
He said he’s found it hard to decide where to go to get a
decision. All that is being
requested is to have the Town acknowledge that the nonconforming
situation exists with three houses on the single lot, but to change the
nonconforming situation to where there are three houses on three
separate lots. He said
it’s no more nonconforming than they are now and have been for many
years. The benefit would be
that the current owner of the property would then be able to sell them
separately. He continued
that the use for years has been to rent the houses because no one has
been able to sell them individually.
He said he thought the town would be better served to have three
owners in the properties than three renters.
He
continued to explain that the plan they’ve proposed shows examples of
how the Supreme Court has dealt with the merger theory. There is a case that says because the house is built over the
lot line, for example, tracts 3 and 4 are merged.
He explained that based on this, if he were trying to say tracts
3 and 4 should be separate lots, that would not work; and if he were
trying to say that tract 5 should be a buildable lot, that would not
work, either. He said that
that they think there is nothing that says that tract 1 should not be
one lot, tracts 3 and 4 should not be one lot, tract 7 should not be one
lot and tract 5 must go with either tract 3 or tract 7.
He continued that he wants to maintain the status quo, only there
would be three tax bills instead of one so they can be sold
individually. He said he
can find no court case that covers this situation.
He said they are asking the Town to acknowledge three separate
parcels instead of one. Mr.
McNicholas stated that the Supreme Court has said that if your Ordinance
has a “required merger clause,” then the lots would be required to
be merged. He explained
that that clause is an affirmative statement in the Ordinance that any
adjoining lots that are in common ownership are automatically merged by
the Town of Warner. He said
that the Warner Ordinance does not have that clause.
He said that what this means is that it’s not necessary to work
backwards to try to convince the Town that the required merger should
have taken place. He said
when the clause is not in the Ordinance, the next step is to see how
they have been treated. For
example, with tracts 3 and 4, if the owner has treated them as merged,
then it cannot be argued to the Town that they are not merged.
He said that without the Town having the automatic right to merge
the tracts, then they should not be merged and should not be taxed as
one lot. He
said that by the late 1960’s they had all been conveyed to the Morrow
family and the Morrows had them for 35 years, except from 1991 to 2005,
tracts 3 and 4 were in separate ownership.
Four of the Morrows owned tracts 1, 5 and 6.
Two of the Morrows owned tracts 3 and 4.
The house at 29 Hartshorn Lane was separately owned from 1991 to
2005, but was not taxed separately.
There was still only one tax bill for all three houses.
He explained that house #25 is on tract 7, #29 is on tracts 3 and
4, and house #31 is on tract 1. Mr.
McNicholas reiterated that they are asking that the Town treat tract 1,
where house #31 is, as one lot, tracts 3, 4 and 5, where house #29 is
and the vacant lot, as a second lot, and tract 7, which is house #25, as
a third lot. Mr.
Rodgers asked if tract 7 continues across the road. Mr. McNicholas explained that tract 7 does go across the
road, but the owner of the lot north of the road believes he owns that
northerly part of tract 7 and that is not disputed.
However, he said that needs to be deeded to the owner and will be
deeded to him. The Town
already recognizes the northerly part of tract 7 as part of lot 11, on
map 26. Mr. McNicholas said
that that owner is paying the taxes on that northerly section of tract
7. Mr.
Rodgers asked where the water and septic are for the three houses.
He said he saw one dug well in the middle of tract 5 and saw
nothing anywhere else on the plan. Mr. McNicholas replied that in the northerly part of tract 7,
there is a well. He said
that is a common well for all four structures in the area, including the
one on Map 26, Lot 11. Mr.
Rodgers asked where the septic is.
Mr. Alosa said that each individual house has its own septic.
He said the well goes to all four and is deeded as such. Mr.
Holt asked if all three structures are included in one tax bill.
Mr. McNicholas said yes. Mr.
Rodgers asked when Mr. Smith bought the property.
Mr. Alosa said it was bought from Mr. Morrow 3 years ago.
He said that he will be buying the property from Mr. Smith, who
is the current deeded owner. Mr.
Rodgers said that in 2006 Mike Bishop and Matt Alosa owned the property,
then 6 weeks later, Timothy Smith is the owner.
Mr. Alosa, said they sold it to Mr. Smith then.
Mr. Rodgers asked who lives in the house north of Hartshorn Lane.
Mr. Alosa said it is Mr. Byrd, who is currently trying to sell
that house. All of the
three houses on the southerly side are rented to non-owners.
Martha
Mical was recognized from the audience and said that Mr. Smith is the
only owner of record of the property.
Mr. McNicholas agreed. Mr.
Rodgers asked if this was really for the Planning Board to consider,
since it deals with lot adjustments.
Ms. Thoits said yes. Mr.
McNicholas said that if they went to the Planning Board with a three-lot
subdivision request, they would say a variance was needed since the lots
would not be conforming. Ms.
Thoits agreed and said that a variance would be needed before the
Planning Board would hear the request.
Mr. McNicholas said that their point is that these already are
five separate tracts of land and, therefore, a subdivision is not
needed. Mr. Rodgers replied
that this is not a question for the Zoning Board.
Mr. McNicholas said that he needs someone to make a decision that
he can appeal, and he thinks it’s this Board, but perhaps it’s the
Selectmen. Ms. Thoits
agreed that the Planning Board would not hear the application for a
subdivision unless the required variances were granted.
Mr. Rodgers said the required variances would be road frontage,
area, and use, probably. He
added there’s a house that encroaches another lot and the middle house
is right on the property line. He
said if a new lot is created on the water, then a water variance would
be required because the houses are much closer than the allowed 75 feet.
He concluded there would be 6-8 variances required for each lot.
Ms. Mical said that before Mr. Alosa and Mr. Bishop and Mr. Smith
purchased the lot, they were made aware that it was only one lot.
Mr. McNicholas agreed, however, he said he did not understand
what the benefit to the Town would be to have three residences on one
lot, as opposed to three on three lots, by acknowledging that a merger
never occurred. He said
their position is that they don’t need any variances at all since they
are all grandfathered, pre-existing lots. Mr. Rodgers said that he believed they need to go to the
Selectmen or the Planning Board because by the letter of the Zoning
Ordinance, there are 6-8 variances needed per lot.
He asked wouldn’t it be easier to just knock down the houses
and build one on the single lot. Mr.
Alosa said you can’t just do that because there’s too much money
invested right now; they cannot be sold individually; and no bank will
re-finance it. He said he
is now strapped financially and cannot refinance because of not being
able to sell the houses separately.
Mr. Rodgers said he believes that a lot of variances would be
needed, one for every angle and every linear foot of dimension.
Ms. Thoits pointed out that this is mentioned in a paragraph
which was presumably written by Don Gartrell, the Town Counsel.
Ms. Thoits quoted as follows:
“Mr. Smith bought himself a problem – actually, several
problems. Without further
information regarding the dates when each of the cottages shown on the
survey in question were built, it seems evident that Tracts 3 and 4 and
Tracts 2, 6 and 7 were effectively merged by construction of buildings
that crossed adjoining lot lines when they were in common ownership.
Although the Bishop & Alosa conveyance to James Byrd purports to
convey the former Tracts 2 and 6, the house clearly and substantially
crosses onto the former Tract 7. Similarly,
the house on the former Tract 3 substantially encroaches on the former
Tract 4. It also appears
that Tract 5 is improved with a dug well that presumably serves as a
water source for one or both of the adjoining house lots.” Mr.
McNicholas said that they agree with that.
He continued to say that if tracts 3 and 4 are merged, then
automatically, 1, 5 and 7 are separate lots.
He said that he doesn’t say you’re merging 1 and 3 because
they’re two different houses. He
said if they were trying to subdivide then they would need 7 variances
per lot. He said that his
point is that that is not needed because the Town should not have merged
them all together in the first place.
Mr. Rodgers said that in his opinion that is not an argument for
the Zoning Board. Mr. McNicholas said that is why he came to the Zoning Board
and if the Zoning Board believes it is not for them to decide, and then
he will go to the Selectmen. He
said he needs a decision from someone that he can appeal.
He said that is why he asked for an informational hearing since
he needed to explain to someone and get some input. Mr. Rodgers said that the Zoning Board deals with variances,
not with what should be merged or not.
Ms.
Thoits said that as of now there is nothing legally before the Board.
Mr. Rodgers suggested that they go to the Selectmen.
Ms. Thoits asked Mr. Rodgers specifically what variances would be
needed for each lot, assuming that 3, 4 and 5 are combined.
Mr. Rodgers said for each lot an area variance would be needed; a
road frontage variance would be needed for each; variances for the
wetlands on structures; and, area variances between every other lot.
Ms. Thoits said they would all have to have septic systems if
they were on separate lots. Mr.
Rodgers said they would also need the easement for the water usage.
His conclusion was there would theoretically need to be a total
of 18 variances for the three lots.
Mr.
Davies asked which zoning district it is.
Ms. Thoits said it is R-2. Mr.
McNicholas agreed that it is a “mess” and asked if the existing
“mess” is better off than their proposed “mess.”
He said that the structures are grandfathered and are staying
where they are. He said he
thinks the three properties would be worth more to the Town if they were
separated and clearly would be worth more to the owner if they were
separated. Mr. Rodgers said
his concern, if the variances were requested, is if it were allowed with
these lots, then what precedent would be set for that area and the Town.
Mr. McNicholas said if a house on a separate lot were purchased
and the house on another lot were already owned by the same person, the
Town would not force a merger of the two lots.
Yet, he said, that this is what has been done by the Town with
these three houses. He added that the issue will not arise anywhere else around
the Lake because there is no other lot with separate single family
residences owned by the same person, being taxed as one lot.
Ms.
Mical said that they were tracts and not separate parcels and Mr. Morrow
never asked for the tracts to be separated out, which he could have done
when the tax maps were made in 1974.
She said he could have said he wanted them separate for the tax
maps and he did not. She
said she thinks that after 30 years, it’s too late to separate them.
Mr. McNicholas said he doesn’t see how the Town benefits by
saying that the five tracts are not five separate parcels of land.
Mr. Davies asked how long have these been known as tracts.
Ms. Mical explained that they are on one deed, with tract 1
through 7 since 1932. Mr.
McNicholas said that a tract was a lot that pre-dated the Zoning
Ordinance. And, he added,
that the 7 lots were separate lots from 1932 until today.
He said that since 1972, most of them have been on one deed as
tract 1, tract 2, etc., but the description of them has never changed
since the 1930’s. Mr.
McNicholas said that he doesn’t think it has anything to do with
either the Zoning Board or the Planning Board.
Ms. Thoits agreed and said that eventually, it will come to
variances from the Zoning Board, but at this point, she suggested that
they go to the Selectmen. Mr.
McNicholas reiterated that they are looking for a decision from someone
from which they can proceed. Mr.
McNicholas asked if all the Board members agreed that they should go to
the Selectmen. Mr. Davies said that he had thought of the equitable
dimension issue, but had decided that it would not apply here. He agreed that they should go to the Selectmen and if they
assigned it back to the Zoning Board then we would deal with it.
Mr.
McNicholas thanked the Board and left.
2.
MINUTES Ms.
Thoits asked for a motion for approval of the April 9, 2008, minutes.
There were no changes or additions.
Mr. Holt MOVED to accept the April 9, 2008, minutes.
Mr. Barnard seconded. The
motion was PASSED unanimously. 3.
COMMUNICATIONS AND MISCELLANEOUS Ms.
Thoits said there were two announcements which were sent out and read
the announcements about doing mapping on a computer and one on
innovative land use on May 22nd.
Mr.
Davies said he and Mr. Holt had attended the OEP conference in April. He
said they had brought back some Power Point handouts that might be of
interest. It was agreed
that Ms. Lightfoot would copy these and send them to the Board members
in next month’s packets. Ms.
Thoits agreed that these OEP conferences are very good. She said there is one in the fall that is different from the
one in the spring and urged the members to consider attending.
4. ADJOURN Mr.
Rodgers MOVED to adjourn. Mr.
Davies seconded. The motion
was PASSED unanimously. The
meeting was adjourned at 7:50 p.m.
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