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Zoning
Board of Adjustment Warner,
NH Meeting
Minutes of July 16, 2008 Members
Present: Martha Thoits,
Chair, Dennis Barnard, Vice Chair, Mike Holt, Janice Loz, Eric Rodgers
and Alternates Rick Davies and Gordon Nolen. (Jean
Lightfoot recording) Not
present: Alternate Ted
Young Ms.
Thoits opened the meeting at 7:00 pm.
The roll call was taken. 1.
AREA VARIANCE Rehearing request by Alan and Susan Olsen Applicant:
Ronald E. and Bethany J. Bourcier Property Location:
31 E. Sutton Road, Warner, NH, Map 17, Lot 4-6, R-2 zoning
district. Proposed Use: Residential.
Variance to Zoning Article
VI, Section C. Request
variance to provide less than the minimum buildable area of at least two
acres. The
following letter was received on July 3, 2008, from Alan and Susan
Olsen: “2 July 2008 “Warner Zoning Board of Adjustment “Town of Warner “PO Box 59 “Warner, NH 03278-0059 “Re: Case
04-08 “Ladies and Gentlemen “We respectfully request a rehearing on your June 4, 2008
decision to grant an area variance to the owners of the property
described as Map # 17, Lot # 4-6, Zoning District R-2. “In Nine A, LLC v Town of Chesterfield (Cheshire
No. 2007-475), the New Hampshire Supreme Court stated ‘The requirements that an applicant must meet for a variance to be
granted are statutory in origin. See
RSA 674:33, I(b) (Supp. 2007). Our
cases interpreting RSA 674:33, I(b) recognize that the applicant bears
the burden of proving the following five conditions in order to obtain a
variance: (1) the variance
will not be contrary to the public interest; (2) special conditions
exist such that literal enforcement of the ordinance results in
unnecessary hardship; (3) the variance is consistent with the spirit of
the ordinance; (4) substantial justice is done; and (5) granting the
variance will not diminish the value of surrounding properties.
Garrison, 154 N.H. at 30.’ “First, the variance as granted is contrary to the public
interest and even to the public health.
Even a cursory review of the plot plan reveals the fact that the
steep slope from the rear parcel, combined with the jurisdictional
wetland into which it drops calls into question whether and how
frequently a septic system would be inundated, potentially contaminating
private water supply systems. Further,
the two test pits sited on the plot plan appear to be directly in the
path of potential sheet flooding from that steep rear parcel across the
jurisdictional wetland changing the question form whether to when
flooding and subsequent contamination of those systems might occur. “If one examines the only area where a house and its
sanitary and potable water services could conceivably be constructed
using the setbacks required by DES and the Warner zoning ordinance,
there is only one site, an area of approximately 12,600 square feet, or
0.286 acres of ‘buildable’ land.
Given the size and location of the jurisdictional wetland, it is
questionable whether either a septic system or a potable water supply
system can even be sited in accordance with DES setback requirements ((Env-Wq.
704.12(c) and (Env.Wq.1008.04(a)), much less both. “Second, the applicant’s bold statement that ‘The
proposed use will not diminish the surrounding property values as the
proposed use is consistent with surrounding property uses’ is
unsubstantiated and as such, unproven. “Third, the variance as granted is not consistent with the
spirit of the ordinance. The
proposed new lot’s alleged 1.48 acres are comprised of two different
physical parcels separated by the large, jurisdictional wetland. The lack of a requirement that parcels making up a buildable
lot be contiguous presumes that one parcel is at least accessible to the
other. While it is true the
applicant obtained a dredge and fill permit to cross one of the
property’s jurisdictional wetlands in 1995, the chances of obtaining
one today to enable access from the front parcel of the proposed new lot
to the rear parcel of the proposed new lot are far less, perhaps even
impossible, making that rear parcel effectively inaccessible,
unbuildable and ultimately calls for the subtraction of that rear
parcel from the total alleged buildable area of the proposed new lot,
not its addition. “The applicant himself stated ‘Given the topography of the property, together with the stream running
diagonally through the property, it is not possible to satisfy the 2
acres of buildable area.’ But
following the subdivision, the applicant asserted that the proposed new
lot will in fact be bigger than the remaining lot. “In focusing his request for variance on the hardship
element, the applicant needed to prove that his property is uniquely
different from other land in the R-2 zone.
In fact, the applicant’s land is just like all the other lots
in the R-2 zone and the primary reason the Town of Warner took the
decision that all R-2 zone lots needed to be a minimum of two buildable
acres, not just two physical acres.
Otherwise, the variance granted must mean:
1) that anyone can pick and choose parts and pieces of any land
to make up an aggregate, buildable lot, or 2) it simply makes term
‘buildable’ valueless. [sic] “The apparent result is, in addition to the hazard posed
by the potential flooding and contamination of the septic and potable
water supplies of the proposed new lot and that the proposed new lot
will actually be larger than the remaining lot, the ZBA has in fact
created two non-conforming lots, not just one. “There is no legal hardship here; it is simply a lot on
which it is difficult to build. “We await your response. “Sincerely, “Alan and Susan Olsen /s/ “PO Box 659 “Warner, NH 03278” The
following letter was received on July 16, 2008, from Ronald E. Bourcier: “July 14, 2008 “Town of Warner “Zoning Board of Adjustment “Main Street “Warner, NH 03278 “Members of the Board: “It is unfortunate that we must meet again to discuss the
same issue that you voted on correctly at the June 4th
meeting in regard to our ‘area variance.’
Although the Olsen’s [sic] have exercised their right to appeal
your decision it is their responsibility to prove that all of you were
wrong. Please consider this
our response to their letter and perhaps the information will solidify
your original decision. “The Olsen’s [sic] make four arguments as to why they
believe this zoning board of adjustment (“Board) improperly granted
the applicants’ variance request.
Respectfully, the Olsen’s [sic] arguments are misplaced and the
applicants will address each in turn.
Before so doing and as an initial matter, the applicants note
that while the Olsen’s [sic] cite to the recent New Hampshire Supreme
Court opinion of Nine A, LLC v. Town of Chesterfield, (decided June 3, 2008), the Olsen’s [sic]
reliance on Nine A, LLC is,
respectfully, misplaced. This
is so because, as the applicants discuss in further detail herein, while
Nine A, LLC stands as the New
Hampshire Supreme Court’s most recent recitation of the five legal
elements of a variance, the application of those five elements in this
case reveals that this Board properly applied the five-prong test to the
applicants’ proposal and determined that the variance requests were
proper for approval. “Public Interest and Spirit of the Ordinance “The Olsen’s [sic] suggest that it was impossible for
this Board to find that granting a variance would not be contrary to the
public interest. We
disagree. In this case we
requested an area variance from the minimum lot size requirements of
Article VI C. “The requirements that a variance not be contrary to the
public interest or injure public rights of others are coextensive and
are related to the requirement that the variance be consistent with the
spirit of the ordinance. Chester Rod and Gun Club, Inc., 152 N.H. 577, 580 (2005).
A variance is contrary to the public interest only when the
variance request ‘unduly and in a marked degree conflicts with the
zoning ordinance such that it violates the ordinance’s basic zoning
objectives.’ Id. at 581
(citations and quotations omitted). “There are two approaches to determine whether a variance
will violate the ordinance’s basic zoning objectives. Id. The first approach
examines whether the variance will ‘alter the essential character of
the locality.’ Id.
A variance must be denied if the proposed use will alter the
essential character of the neighborhood. Id.
(citing Harrington v. Town
of Warner, 152 N.H. 74, 78 (2005)).
The second approach examines whether granting a variance would
threaten the public health, safety or welfare.
Chester, 152 N.H. at 581. “Under
the New Hampshire Supreme Court’s analysis the proper question in this
case is whether the resulting lot will alter the essential character of
the neighborhood in which it sits or whether the resulting lot will
threaten the public, health, safety and welfare.
This Board found that the resulting lot would do neither.
In other words, the variance is not contrary to the public
interest or the spirit of the ordinance.
Indeed, issues of steep slopes, wetlands etc. are not relevant to
our variance request. Had
we requested variances from steep slope or wetlands ordinances, then
perhaps the Olsen’s [sic]
comments may have relevance. This
case, however, is not about a variance request from a steep slope or
wetlands ordinance. Therefore,
the Olsen’s [sic]
comments, respectfully, miss the mark. “THE OLSEN’S [sic] WERE AT THE MEETING AND NO ONE
TOUCHED ON THIS ISSUE. “Diminution to surrounding property values “The proper time for the Olsen’s [sic] to dispute this
element of the variance test (just as with the other variance elements)
was at the Board’s hearing on our variance request in the first
instance. That the
Olsen’s [sic] now simply disagree with the outcome of that hearing is
not grounds for the Board to grant a rehearing or otherwise revisit its
decision. To allow
otherwise would permit the Olsen’s [sic] to continuously second guess
the Board’s decisions even after the Olsen’s [sic] already had ample
opportunity to express their concerns to the Board. Furthermore, the Olsen’s [sic] concerns are simply
speculative; the Olsen’s [sic] offer no basis in fact as to any of
their speculative concerns. “Hardship “As mentioned above, we in this case requested an area
variance. Consequently, the
test for hardship is governed by the cases of Boccia
v. City of Portsmouth, 151 N.H. 85, 92 (2004) and Vigeant v. Town of Hudson, 151 N.H. 747, 750 (2005), see
also Malachy Glen Assoc., Inc. v. Town of Chichester, 155 N.H. 102,
105, 107-08 (2007). Unlike use variance cases, area variance cases focus not on
the surrounding properties, but instead the property at issue.
Malachy Glen Assoc., Inc.,
155 N.H. at 107-08. Thus,
this Board and courts only inquire into the unique features of the
property itself as they relate to the area requirements of the zoning
ordinance. Boards and
courts do not inquire into the aspects of the property that distinguish
[it] from other land. Id. The Olsen’s [sic]
appear to simply disagree with the state of law. That disagreement, however, is not grounds for this Board to
grant a rehearing or reverse its approval of our variance request. “Sincerely, “Ronald E. Bourcier /s/” Ms.
Thoits announced that the members voting on the rehearing request will
be Rick Davies, Dennis Barnard, Mike Holt, Janice Loz and Martha Thoits,
because they were the members who voted on the original variance
request. She invited Mr. and Ms. Olsen to present their arguments for
rehearing. Susan
Olsen said there are a number of reasons to request a rehearing, the
bulk of which were in the letter to the Board.
She explained that primarily it centered on not learning at the
original hearing what the actual dimensions of the proposed second lot
were. She said she did not
think there was a clear understanding of whether it was going to be 2 or
4 or 2 separate pieces were deemed as one lot or not.
She said that in the absence of having good numbers on what the
final plot would be, they took the plot plan and using the measurements
on the plan, tried to draw out what the second lot would be.
She referred to a map that was on an easel and asked what it was.
Ms. Lightfoot responded that it is a map that was submitted to
the Planning Board after the Zoning Board meeting and before the request
for a rehearing. She said
that a Planning Board member had put the color in to delineate the
wetlands. Mr. Bourcier said
the dark parts on the plan are the steep slopes.
Ms. Olsen said that this is not significantly different from what
they had drawn out. She
noted, however, that with the State-mandated and the Town of
Warner-required setbacks, they were unable to come up with even an acre
of the buildable area. She
said it is not contiguous which is not an issue because it has been
removed from the Zoning Ordinance.
She said that they are [unintelligible] two different lots
because access across the wetland and brook would be difficult to
obtain. She said that in
looking at the road, the wetland and the steep slopes, they have a
serious concern about the potential for flooding of a septic and private
water well that might be placed where it seems to be the only place to
build. She said that is, in fact, where the Bourciers said that they
anticipated a house would be built.
She summarized by saying that their concerns are the flooding of
septic and the fact that they cannot see where the 1.2 acres or 1.9
acres come from. She said
they think the Zoning Board has given too many variances in lots that
are choppy and that this may set a precedent for other difficult lots
being zoned in well under the two acre buildable requirements of the
Town of Warner. Ms.
Thoits asked if there were any questions.
Mr. Davies asked if there was supposed to be testimony taken at
this point. Ms. Thoits
replied that Ms. Olsen was presenting what she has for information and
the Board has to decide if it is information that is different than what
has been discussed and whether the Board wants to do a rehearing.
She added that right now the question before the Board is will we
do a rehearing or not. Mr.
Davies said that it was his understanding that we are not supposed to
take testimony at this point. Ms.
Olsen agreed. Ms. Thoits said that we are not supposed to take testimony,
but she thought that Ms. Olsen is allowed to tell the Board why she is
asking for a rehearing. Ms.
Olsen added that there is one thing that is not included in the letter
and that is that there is a structure in the middle of the proposed
property line on the plans. Ms.
Thoits asked the Board if they want to do a rehearing or if they believe
the decision was correct and therefore do not feel there is any new
testimony, thus requiring a rehearing.
She asked for discussion. Mr.
Davies asked if there were other options that perhaps if we choose to
suspend the previous decision and re-deliberate on the additional
information. Ms. Thoits said if we choose to accept the application for a
rehearing, then the hearing would follow.
She said if there is a vote to rehear, then it will be reheard
tonight and bring up the issues again and vote again.
She said if it is decided not to rehear the case, then it’s
done. It will not be
reheard and their next course of action is to go to court.
Mr.
Davies said that he did not recall much discussion on some of the
issues. He said he
remembered a lot of thinking about the parameters of the map and not
about the individual five questions as such that would be voted on.
He said that he did not recall any additional debate of any
substance after the motion was made to approve the variance.
He added that, from that point of view, the application to rehear
might have some substance to it. Mr.
Holt said that he thought the discussion did focus on the parameters,
acreage, etc., but there was some discussion on the five questions. He referred to the minutes of the June 4 meeting.
Ms. Loz said she agreed and said that the buildable acreage was
reviewed quite extensively. She said that we did not review the flooding of the well and
the septic. Ms. Thoits said
that any well and septic would all have to be State approved, anyway,
and she said she thought the feeling was that the State would not allow
something that is not safe. She
said it was the State that determines the safety and the flooding of all
wells and septics and that is not the position of the Zoning Board to
review. The problem for the
Zoning Board, she said, was simply whether to give him a variance for
the buildable acreage. She
said that anything else becomes Planning Board issues, as far as
placement of buildings goes. Mr.
Holt said he could appreciate the feelings from Mr. and Mrs. Olsen, but
he thinks that in this era someone would not build something that would
not be appropriate. He
added that the discussion and decision were made based on the request
for a variance and it is not our position to do a “deep dive” beyond
that. Ms.
Thoits recognized Ronald Bourcier.
Mr. Bourcier asked if the letters from the Olsens and the
Bourciers would be read into the minutes.
Ms. Thoits said all the Board members have read the letters and
they will be put in the minutes of tonight’s meeting. Ms.
Thoits requested a motion. She
said that if the members feel that there’s enough information that was
not discussed, then it should be reheard; and, if the members feel that
it was discussed well enough, and did reasonable justice to Mr. Bourcier,
then the vote would be not to rehear it.
Mr.
Davies MOVED to approve the rehearing.
There was no second. Mr.
Holt MOVED to not have a rehearing because the decision was correct and
that substantial justice was served.
Ms. Loz seconded. Ms.
Thoits asked if there were any further discussion.
Mr. Davies asked if the members who were not present in June had
anything to add. Mr. Nolen
said that he had spent two hours reading the minutes of the June 4th
meeting which he had missed. He
said that he thinks the Board is correct as to what the purpose of the
Board is and the subjects for which we are responsible.
He added that we are not responsible for wells and the things
that the State is responsible for.
He said that there is an element of good judgment and we are
limited as a Board. He said
he concurs with the decision. Mr.
Davies said that this is not a question as to whether we agree or do not
agree. He said he thinks it
is an opportunity to correct any errors, whether or not there were any. He said that discussing the variance further would allow an
additional look at the request. Mr.
Rodgers said that he understands that the buildable area does not have
to be contiguous. However,
he said, looking at the plan and the top lot, there are pieces that,
when added together make up the less than two acres of buildable area.
Ms. Thoits said yes. She
said that the Ordinance was changed some time ago so that the word
contiguous was removed and the buildable area only needs to be the
stated amount of acreage. Ms.
Thoits called for a vote. Mr.
Davies, no. Mr. Barnard,
yes. Mr. Holt, yes. Ms.
Loz, yes. Ms. Thoits, yes.
The motion was PASSED. Ms.
Thoits announced that there will not be a rehearing.
2.
MINUTES Ms.
Thoits asked for a review of the minutes for June 4, 2008. Mr. Davies MOVED to approve the minutes of June 4, 2008.
Mr. Holt seconded. The motion was PASSED unanimously. 3.
COMMUNICATIONS AND MISCELLANEOUS Mr.
Davies said that the Planning Board is going through their yearly review
of the ordinances and regulations.
He said if there is anything that the Zoning Board sees is a
recurring issue that they would like to see addressed, then the Planning
Board would like to know about it.
Ms. Thoits said that the Planning Board has asked the Zoning
Board before for things that we felt were unclear.
She asked the members if they have come across anything they
think is unclear that they would like the Planning Board to change.
She said that if anything comes up, a formal written request will
have to be made to the Planning Board.
She said that usually they have a meeting where the Zoning Board
is invited to attend and speak. Mr.
Davies said that there is quite a long list to be looked at and it has
been noted that there are some inconsistencies in definitions in the
Ordinance and the Site Plan Review, for example.
He said that if it’s an Ordinance change, then it has to go
through the Warrant Article process and those will have the higher
priority. Mr.
Rodgers said he thought the word “contiguous” should be put back
into the buildable area requirements.
He asked if you had a 20 acre piece of swampland with a lot of
1/10th acre pieces that never got wet, and you had enough for
the buildable area, is that really a buildable lot?
Ms. Thoits said that she thinks that the word “contiguous”
was very constricting. She
said if you had a lot of little places, there wouldn’t be a place for
a well and things like that. Mr.
Rodgers replied that if you had just 2/10th of an acre like a
city building lot, you can put a well, septic or a tank that has to be
pumped out, and then you have swampland everywhere else and just enough
little knobs to make it a buildable lot.
He said he thinks it’s crazy and it should be just one piece of
land. Ms. Thoits said
that she doesn’t think the word should be in the ordinance.
However, she added, if the members think it is something that the
Planning Board should think about, then it should be mentioned to them.
Mr. Davies said that there has been a lot of discussion in the
past and this kept festering, so it was changed.
Mr. Rodgers said if someone had a little stream running through a
5-acre lot, but they have 2-1/2 acres and 2-1/2 acres that weren’t
contiguous, so they took the word out.
He said that he thinks that is what you should get the variance
for, but for the Bourcier one where there is one little piece in one
corner, a steep slope, a swamp and then another little piece and
they’re adding it all up, they still get the variance.
He said that what he thinks was done was a variance granted
essentially for one acre on a two-acre minimum.
He said they can’t build a bridge to the little section in the
corner. Ms. Thoits said
that little part is not where they can put a house.
Mr. Rodgers said he thinks it’s better to be more conservative
than to be more open to interpretation.
Martha Mical said that she thought the lower section was 1.4 and
the upper section is .3 or something like that, so it comes up to 1.77.
Mr. Rodgers said he thought those were not the numbers in the
minutes, but said he just wanted to bring up the issue.
Ms.
Thoits asked if there were any other business.
She mentioned a notice about a workshop on “Effective and
Healthy Boards” scheduled for October 15th that was sent to
the Board members if anyone was interested.
Ms.
Thoits recognized Martha Mical. Ms.
Mical said that during the May meeting Mr. McNicholas came before the
Board representing Timothy Smith and Matt Alosa on the Hartshorn Lane
property. She said that it
is in the minutes that Mr. McNicholas said that he had a subdivision
map recorded. She said
in fact he did not have a subdivision map recorded, he had a survey
map recorded. She said
that has to be in the minutes for this meeting to go with the May
minutes because it is a very important distinction.
She said there has never been a subdivision of that property.
It is a survey map that was recorded.
Ms. Thoits said there needs to be a correction to what was said
at the May meeting to indicate it is a recorded survey map, not a
recorded subdivision map. Ms.
Mical reminded the Board that it was referring to the three houses on a
single lot and Mr. McNicholas was referred to the Selectmen.
There was some further discussion about it, and it was agreed
that by discussing it tonight and putting it into the minutes of this
meeting will recognize the error and acknowledge that it is a survey map
and not a subdivision map. Ms.
Thoits asked if there were any other business.
There was none. Mr.
Rodgers MOVED to adjourn. Mr.
Nolen seconded. The motion
was PASSED unanimously. The
meeting was adjourned at 7:30 p.m.
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