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Zoning
Board of Adjustment Warner, NH Meeting
Minutes of Members Present: Martha Thoits, Chairperson, Martha Mical,
Vice-chair, Joanne Hinnendael, alternate Mike Holt, Eric Rodgers,
alternate Janice Loz, alternate Ted Young and Deborah Freeman,
recording. Not present: Dennis Barnard, alternate Rick Davies. Chair Thoits opened the meeting at Court remand in matter of Warner Citizens for Smart Growth v the Town
of Janice Loz recused herself and moved from the table. Relative to the height regulations the Court Order at page 11
requests the board to reaffirm their conclusion and explain its
rationale. Board granted a
special exception for the height. The
determination of a height of 36.5’ was based on the average of the
front roofline of 43’ above ground and the back roofline of 30’
excluding cupolas and ornamental elements as terms are utilized in part
2 of Article IV.1 of the ordinances.
Based on the proposed use of the building ornamental elements
above the roof line were not included in the calculation (43’ + 30’
/ 2 = 36.5’) as they are not part of the proposed use of the building.
The board granted a special exception of 1.5’ to the 35’
height regulation. The second part of the request for clarification from the court
related to the setback requirement variance.
The board’s initial decision was that the calculation did not
require a setback; with it being 36.5’ the setback they had was enough
to cover. Chair Thoits
stated the original decision was correct a variance was not required.
Mr. Rodgers and Mr. Holt voiced agreement.
Rodgers clarified their existing setback of 43’ and height not
exceeding 38’ there was no need for a variance.
No variance for the setback was required.
Martha Mical made a MOTION that we determined that a variance was not
necessary for the setback for the over height of 36.5’.
No second is heard. Mr.
Rodgers made a MOTION no variance from the setback requirement
established by Articles IV and XI are necessary because the height of
the structure is calculated pursuant to Article III as 38’ or less.
As the height of the structure is determined to be 36.5’
proposed use there is no need for a variance for public right of way as
the setback existing is 43’. Mr.
Holt seconds the MOTION. Hearing
no further discussion the chair called for a vote.
Mr. Rodgers yes; Ms. Mical yes, Mr. Holt yes; Ms. Hinnendael yes;
Chair Thoits yes. MOTION
passed with a unanimous vote. Mr. Rodgers excused himself from the meeting.
Ms. Loz joined the board at the table and Chair Thoits asked her
to vote for Mr. Rodgers. Case 11-07: Daniel
Harte, Property Location:
39 Morse Loop, Warner, NH, Map 17-Lot 11, R-2 zoning district. Proposed Use:
Single Family Home #1: Variance
to Zoning Article VI. C. 1. A. Request a 200’ variance to the 200’
minimum frontage requirement. #2: Variance
to Zoning Article VI. C. 1. B. Request a 10’ variance to the 25’
yard requirement to an abutter’s property line; the abutter being the
Town of Mr. Harte stated the property currently has 2 trailers a tractor
trailer and a camper trailer with an addition.
Purpose of application is to remove the trailers and build a
single family home, a log home package (color photo distributed).
The current trailer is 100’ and 85’ from the river.
The proposed location is 200’ at one point and 85’ from a
second point from the river and moved back higher on the land requiring
the 10’ variance to the 25’ from an abutter on the railroad bed.
The tractor trailer 8’ x 32’ and the other trailer is 14’ x
26’. The proposed house is
30’ x 58’, 2260 sq ft. 3 bedrooms.
The idea is to clean up the area and keep it in its natural
element and make it more appealing with the log home, there is one in
the area now. The existing
trailers would be removed. It
has electricity, septic, well, and telephone.
Ms. Mical asked for clarification if the board was addressing the
variances individually – board response was they will address the
variances individually. The
first variance addressed is the variance to the 200’ of required
frontage. Mr. Harte read his answers to the variance questions into the record:
The existing driveway has been there since 1907, I propose using
that driveway which goes through Mr. Shoemaker’s property and the
town’s property an established driveway, deeded right of way.
We want to use that as frontage so the lot has frontage on a
class V road, Morse Loop. Ms.
Mical clarified the board would need to grant a variance for 200’ of
road frontage as required in that district.
The property does not have road frontage – an existing right of
way is not road frontage. Ms.
Thoits agreed. Mr. Harte
stated he has other property in town on Tom Pond where his neighbors
have 16’ of right of way through his property to get to the town road
so he had a right of way of 16’, not sure why this driveway would be
different. (Board did not
respond.) Mr. Harte read the variance questions:
A.
No diminution in value of surrounding properties would be
suffered. Removing of
trailers and building of new home would increase existing values. B.
Granting the variance will not be contrary to the public
interest. No effect on
public interest. C.
Denial of the variance would result in unnecessary hardship to
the owner seeking it. Failure
to allow a variance would disallow the owner to upgrade his living
conditions and upgrade the value and condition of his property.
By allowing a building permit to upgrade the current conditions
it would be beneficial to both the owner and the Town.
Currently there are two trailers that make up the living quarters
on this lot. By building a
new home and removing the trailers it would upgrade the conditions and
increase the value of the property.
It also eliminates existing “eyesores” in the form of tractor
trailer unit and an old camper trailer with wooden additions from the
property. The current living
quarters are small and outdated. Their
current positions on the lot are prone to water damage.
The new house would be built further from the river and higher up
on the lot to avoid flood damage. D.
By granting the variance, substantial justice would be done.
This lot is currently being taxed as a residence with a
building. It currently has
all the amenities of other residences in the area, that being
electricity, a septic system that was approved by this town in 1974,
water, and gas heat. It also
has a driveway that has been in use since 1907.
Records from Town Hall show a deeded right of way to this lot
since before 1907. The
driveway has been in use for all those years and goes from the lot out
to a class 5 road, that being Morse Loop.
It would seem a gross injustice to deny a building permit because
the lot “lacks road frontage”. It
seems to me that the existing conditions of the property should be taken
into consideration. E.
The use must not be contrary to the spirit of the ordinance.
There is already a building on the lot and an existing
driveway. Ms. Hinnendael stated she went to see where the property was and
could not locate it based on the information provided.
Mr. Shoemaker’s house is about 800’ away.
Mr. Young asked for clarification if the railroad bed is still
town property; response was yes. Mr.
Young stated he sold that piece of land to Virginia Taylor in about
1972, having owned it since about 1957.
At that time it was considered a building lot and the access road
was onto State Route 103 at that time.
Chair Thoits closed the meeting and opened the public hearing. Hearing no abutters wishing to speak, Chair offered others wishing to
speak. Richard Cook,
speaking as a citizen. I think it is far to go to the point where the
variance of frontage is granted to a lot where there is no frontage; not
only do we have a town ordinance that requires frontage and a state law
requires frontage, I feel it is in the towns’ best interest not to
allow lots without frontage to be developed.
I disagree with Mr. Harte’s statement that there would be no
diminution of value, if the right of way were changed to a year round
residential house, the land that Mr. Shoemaker owns, that I believe
could be subdivided if he wanted, the value of his lots would be
diminished by having a second driveway.
Chair Thoits read into the record a letter received from Evelyn and
Clark Davis dated This is to advise you that we are opposed
to the granting of the two requested variances for the Harte property,
39 Morse Loop, Map 17-Lot 11, for the following reasons:
1. The granting of the variance for a property with no road
frontage would require the Town of Warner to allow numerous other owners
of land-locked property the right to build, causing adverse economic
effects for all Warner taxpayers. 2.
Previous owners of the Harte property have been denied the right
to build on Map 17-Lot 11. In
the interest of remaining consistent and fair by giving equal treatment
to all Warner residents, this request should also be denied.
Sincerely, Clark & Evelyn Davis Chair Thoits read into the record a letter received from Robert
Shoemaker III dated To Warner ZBA, re: Case 11-07 variance – A
request for a 200’ variance to a 200’ minimum frontage requirement
is stating that Map 17 Lot 11 has no road frontage.
With no road frontage this is to be considered a land locked
parcel. Access to this lot
is by right-of-way over two other lots.
There is a letter of record, dated Sept. 6, 2005, from the Warner
Board of Selectmen to previous owner Virginia Taylor stating that
“property at Map 17 Lot 11 is not a buildable lot due to lack of road
frontage as required by RSA 674:41-III to be issued a building
permit.” This decision had
also been conveyed to several prospective buyers when the lot went on
the market. Consistency is
key. Not a building lot
then… not a building lot now! This piece was advertised and sold as a
“recreational use only” lot. The
real estate info sheet from Country Houses states “property being sold
as is for your vacation land; recreational use only.”
There was no misrepresentation by the listing agent that this is
a building lot. No hardship
could be claimed that purchase was made based on false promises. At issue here also: if granting variances
and allowing building permits on landlocked lots is the setting of a
precedent. In allowing some
to build on landlocked property others would have a potential case for
building on their back lot. At
that point, any lot with sufficient acreage could then be
considered a building lot. This
should be carefully considered. A
variance in this situation might not be in the best interests of the
town, long term. In conclusion, I voice my opposition to the
granting of these variances based on existing state and town regulations
for minimum road frontage exposures.
I look for consistency in town policy with previous denials by
town officials of building potential on this lot.
Not a building lot then... not a building lot now!
Robert Shoemaker III, abutter and owner of lots 12-1 and 12-2,
Map 17. Hearing no other public comments Chair Thoits reopened the meeting. Ms. Hinnendael stated her understanding that Ms. Taylor did live
there seasonally and then year round.
Ms. Hinnendael asked Mr. Harte if he was told it was a building
lot. His response was he
knew Ms. Taylor had been denied a building permit, it was sold as a
recreational only lot and added that a realtor indicated that denial of
a building permit could be questioned.
The zoning article relative to a nonconforming lot states even a
nonconforming lot needs 50’ of road frontage; anything less than that
is not a buildable lot. The
lot was built on prior to zoning. Mr.
Shoemaker and the Town of Ms. Hinnendael made a MOTION to postpone a decision for the next
meeting and do a site walk prior to that meeting.
MOTION seconded by Ms. Loz. Board
unanimously approved. A site
walk was agreed on for Case 12-07: Variance - Peter &
Elizabeth Lovejoy, Proposed Use:
Major 6 lot subdivision.
Requesting a variance to Zoning Ordinance Article XIV, Section
B.1.b. minimum 12- acre lot size. Point of order, Mr. Arnold sited that the notice read that the plan
was available for public view and was not posted – the abutters have
not had the opportunity to review the proposed subdivision.
Board responded that it was at one point posted; although it is
not posted at this time (not sure why), plans are available upon request
to the Zoning Board office. Mr. Evans presenting. This
lot is approximately 60 acres [corrected later in the meeting to be 78
acres] on Ms. Mical stated the open space has a provision for 12 acre lots.
Mr. Evans stated we are giving the common land required, the
natural stream and try to conform as much as possible with the open
space. Ms. Mical stated for
lots greater than 40 acres in the R-3 zone 50% has to be open space
(that would be 30 acres of the 60).
Mr. Evans responded they are only developing the developable
portion of this, further stating the regulations would require a road to
go in and build a cluster development - The regulations don’t work for
the topography [Mr. Evans dramatized by crinkling up paper.]
The minimum impact would be the proposed 6 lots with 3 new
driveways – we are complying as much as possible with our ability to
provide open space and meet all the original requirements of the R-3
district. Ms. Thoits, so each lot is about 3 acres versus the 12.
Mr. Young stated this is not new this concept, multiple drives,
this was done on Chair Thoits closed the meeting and opened the public hearing. Mr. Fred Arnold, Nancy Ladd, Jeff Evans commented we can create 6, 7 8 lots with the 12- acre
requirement. Our effort is
to preserve the town of Chris Connors, Conservation Commission, I was at the initial Planning
Board meeting when Mr. Evans came in with the conceptual, it was
confusing as the abutters and the planning board did not realize he was
asking for a “conceptual”. Many
abutters attended that first meeting and saw the initial plan Mr. Evans
came in with – abutters need to see what is being proposed now as many
of them saw the initial plan and not what is on the table here – the
process was confusing and done in the right manner.
Speaking for the Conservation Commission she showed a series of
maps. I usually work on a
smaller scale; I called DES Wetlands Bureau and spoke to the person in
charge of all the permitting. I
also spoke to Sara Allen a wetlands scientist, she advised that there
are 3 processes in the development of wetlands: 1) STATE AND FEDS avoid
wetlands 2) MINIMIZE impact to wetlands, and 3) if you are going to
impact wetlands COMPENSATE for that.
The goal of the open space zoning is not just the cluster
development; it is also to provide larger lots so that wildlife exists
from a distance to the development.
Ms. Connors showed a map prepared for the Conservation
Commission, depicting red steep slopes, the blue wetlands – this is
based on the initial proposal – it is not the proposal in front of you
but impacts the same land. What
is missing here, no information provided for the remainder lot, just the
topography is depicted - how do I know the wetlands can be avoided.
From Granite, a digital resource for wetland areas, are a broader
picture, this particular are part of the Mink Hills and Andy Westcott, Evans responded, basically if 12-acres there will not be fewer lots.
There will be at least 6 lots probably 8.
If we comply with the open space regulations there will be 15-20
lots. What does this town
want for density? Would you
rather have 6 or 16 lots? Ms.
Hinnendael stated on the application it states the owner does not wish
to maximize development potential of the property.
The R-3 zoning requires 12 acre lots.
Ms. Loz stated we are only talking about these 6 lots on the
table; not any other proposal of 15-20.
Mr. Evans proposed the possibility of chopping the proposed site
up into 1 acre lots. Ms.
Hinnendael pointed out on the plan in front of them area wetlands are
not calculated. Mr. Evans
stated this is still a conceptual preliminary plan, R-3 requires 3
buildable acres. Ms.
Hinnendael pointed out where a lot has 1.1 buildable acres.
She further stated we should request corrected maps with
wetlands, the slopes, and all the information.
Get the correct information, post it for the abutters and the
public; we need the facts to make an informed decision, suggests a
colored map. Mr. Evans pointed out where the regulations are confusing.
Ms. Hinnendael stated this is our first application of the open
space; it may take a few meetings to get through this.
First step is to bring in corrected maps and come back next month
and discuss it with corrected information and informed public and
abutters. Jim McLaughlin Conservation Commission, I’m hearing this is the
only way to develop this very large lot and I don’t buy it.
In 2006, the town meeting passed with overwhelming majority
passed this ordinance, this is what they want.
To grant a variance this Board would have to agree that this
proposal is not contrary in spirit of the ordinance – if you approve
this variance the vote of the town meeting doesn’t mean anything.
Ms. Mical responded: his
request is for a variance to the 12 acres, the exception to the rules,
if we did grant a variance to the 12 acres it still means the open area
applies. Ms. Mical we can
put the condition that he does have to meet the open space ordinance of
50% open space. Nancy Ladd stated since the abutters did not get a chance to see the
plan, we would like to see it. Ms.
Mical suggested the corrected plans will be available for public view. Chair Thoits called for additional public testimony, hearing none,
closed the public hearing and reopened the meeting. Ms. Hinnendael made a MOTION to postpone this application until we
get the proper maps and reschedule another public hearing once posted.
Ms. Mical seconded. Board
unanimously passed the motion. Mr.
Evans was informed the plans would need to be provided two weeks prior
to the next meeting to allow for time to post and review. Case 13-07 Variance - Matthew Suchomski, property located at Purpose to build a barn
on an existing non-conforming lot of record, currently a
residence.
Seeking a variance to the terms of Article VIII.C.1.b. - 50’
yard requirement to an abutter’s property line. Requested setback is
20’ to build a barn 30’ from an abutter’s property line. **Maureen Ireland presenting: the
lot is small, looking to put a 24x24 barn on the lot 30’ from the
abutter’s property. In a
brief meeting with an excavator this seemed the most reasonable place to
put it considering run off. Mr.
Spagnolia owns the surrounding property, 3rd place on the
left. Gore road is a class 5
road. Read the answers to the questions.
Will not be easily visible from the abutter’s residence.
To store lawn and maintenance equipment.
We feel putting it somewhere else would be difficult and
expensive. There is a
possible seasonal wetland. We
do not feel that putting the barn in this location would infringe on
anyone else. Janice: how big is the house R: appx 30x22 Close mtg open ph: Spagnolia: owns the two lots they mentioned that they wanted to build
a barn, at the time I saw no opposition, I looked at their property.
The problem is the property line is not clearly defined; there
are pins in the ground. Feel
a survey should be done to properly define the boundaries.
An addition was done where they put up a second floor and the
material was put behind the building and never cleaned up with lots of
debris. The line is very
close. They then put in a
septic system which is raised and encroaches on the setback.
Now a barn. What is
going to happen down the road is stuff going to be thrown over the
property line. This is a
small parcel. Suggesting
reconfiguring the driveway to accommodate building the barn.
Would like them to consider putting it closer to the house, which
would be more convenient and practical.
No opposition to them improving the property and commend them,
but would like to see them clean up the debris from the first building
and reconsider the location. Close ph and reopen the mtg. Mike: The doors will be facing the driveway.
What if adjacent. Joanne
why not at the end of the driveway.
Mushy. Maureen: there
is another possibility, where her current garden is.
Joanne: you should look at other options based on Mr.
Spagnolia’s comments. Mr. S: Are you considering building it on the ground R: a slab.
How far off the ground is the wood construction going to be.
Mr. S: the seasonal wet spot, it’s just muddy. MT: Any more questions, the issue at hand.
Joanne: If the 2
neighbors worked out to meet the 50’ setback; suggesting a compromise
and postpone our action. MM: Alan Brown has a metal detector and may even know where the pins
are. MT: On the basis of the questions, cannot deny based solely on the
abutters’ statements. Applicant was presented with the option to return next month or ask
for a decision tonight. MM: Request a 5 minute recess to allow applicant to discuss. Came to order again. Applicant requests a delay to be put on the agenda for next month.
MT: This morning PB
representatives and combined the budget for the two boards.
MT: Joanne adjourned, MM: 2nd. Adjourned at
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