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Zoning Board of Adjustment Warner, NH Meeting Minutes of Members Present: Martha
Thoits, Chair; Mike Holt; Eric Rogers; Rick Davies; Janice Loz; and,
Alternate Gordon Nolen. Not Present: Alternate Ted
Young Ms. Thoits explained that this is a private board meeting and told
the audience that they were allowed to observe but were not allowed to
speak to any of the issues to be discussed. The meeting was called to order at 1. CASE 04-09:
a. Applicants:
George and Cynthia Finch, b. Property Location: c. Proposed Use: Garage d. Variance to Zoning Article Cynthia Finch made the presentation to the Board. She said that she
applied for a building permit and it was approved. When the foundation
digging commenced, the Building Inspector visited the site and halted
the construction. She said she assumed the garage location was 50 feet
from the center of the road before starting the project. The potential
locations of the garage are limited by the location of the septic
system, and the amount of steep slope and ledge on the property. The proposed location of the garage is behind an existing stone wall
and does not interfere with the room needed for snow plows. She said her
husband works in She said there is 500 feet of wooded area between the Finch property
and their neighbors so the proposed garage would not obstruct anyone’s
view. Ms. Thoits said according to the Finch’s application, they are 44
feet from the edge of the road. Ms. Finch said yes. Ms. Thoits said the
50 foot measurement was taken from the center of the road. Ms. Finch
said yes. Ms. Finch said she trusted the contractors to know the zoning
ordinances instead of researching them herself. Mr. Nolen asked if the existing stone wall was on the Finch property.
Ms. Finch said yes. Ms. Thoits said the application indicates the stone
wall is 25 feet from the road. Ms.
Finch said yes and the proposed garage is about 12 feet from the stone
wall. Ms. Thoits asked Ms. Finch if there was anything that obstructs the
road in any way. Ms. Thoits said she received a complaint that the
variance shouldn’t be granted because the proposed garage is too close
to the road and it was not safe. Ms. Finch said while her husband was
milling the couple’s own logs, the logs were on the side of the road.
They have since been milled and moved behind the stone wall. Ms. Thoits
said that was the complaint. Mr. Davies asked Ms. Finch if she knew the exact location of her
property boundary line. Ms. Finch said that when she and her husband
purchased the property, they were told that the boundary pins were
located at the corners of the stone wall, adding that the stone wall
runs up the side of the property and into the back. Mr. Davies said that
based on Ms. Finch’s understanding and the information presented to
the Board, the property’s boundary line is the stone wall, asking if
the applicant has any drawings that would indicate the pin locations and
property boundary lines. Ms. Finch said she has the Map/Lots from the
Town. Ms. Thoits asked Ms. Finch to read the five (5) questions and
corresponding answers on the Application for an Area Variance. Ms. Finch
read as follows: A. No diminution (decrease) in value of surrounding properties will occur. This will not create any eyesore for the neighbors and will allow
storage of seasonal items. This will create a better yard as to not have
these things stored in the open yard. B. Granting the variance will not be contrary to the public interest. There is a stone wall at 25 feet from the edge of the road. We are
asking for an additional 19 feet beyond this wall. C. Denial of the variance would impose unnecessary hardship upon the applicant. Applicant’s criteria for demonstrating hardship for an Area/Dimensional Variance are as follows: a. An Area/Dimensional Variance is needed to enable the applicant’s proposed use of the property given special conditions of the property. This is the only flat land that is not ledge. To dig in proper place
we would be on a hill that is ledge and to dig down would require
dynamite. Also, we do not know how far down the ledge goes since we are
actually on the side of a mountain. b. The benefit sought by the applicant cannot be achieved by some other method reasonable feasible for the applicant to pursue, other than an Area Variance. This garage would enable my husband to leave to go to work on a
moment’s notice. He is an elevator mechanic in D. By granting the variance, substantial justice will be done. This is the only flat land. Most of the property is rock ledge and
the other side of the yard contains the septic system. E. Granting the variance will not be contrary to the spirit of the Ordinance. This does not create a hazard for any parties. The garage will be
placed behind a stone wall. Ms. Thoits asked the Board if there were any further questions for
Ms. Finch. Mr. Nolen asked if she had a building permit that is already
approved. Ms. Finch said yes, the permit was approved about a month
before we started digging. The proposed garage was staked out prior to
the approved permit. Ms. Thoits asked if Ms. Finch got the permit and
then was told she was too close to the road. Ms. Finch said yes, just
before the slab was poured, either the Road Agent or the Building
Inspector came and told the contractor to halt work. She said it was her
understanding that there was a question about the exact location of the
right-of-way for the Town. She said the Road Agent placed the marker
behind the stone wall, on the house side, which meant the proposed
garage would have to be placed going up the slope of the driveway. Mr. Davies asked how far the marker was on the house side. Ms. Finch
said it was about one foot. He reviewed the measurements citing another
12 feet from the stone wall to the garage and noted the application
stating 19 feet from the wall to the garage. Ms. Finch said she was
estimating during her verbal presentation and the application contains
the true measurement [19 feet from the stone wall]. She said 50 feet
from the stone wall would mean the garage would have to be placed going
up the steep slope of the property, noting the driveway has a 45 degree
angle to it. Mr. Davies asked if the proposed garage has any overhang
toward the right of way. Ms. Finch said no. Mr. Davies said his setback
is measured from the overhang. Mr. Davies said the design calls for a gambrel roof which usually has
some portion of overhang. Ms. Finch said she believes the design will
leave two feet on either side of the building to stack wood. Ms. Loz said it is a 44 foot setback from the right of way ( Mr. Rodgers said the Board must be exact in its understanding of the
precise measurements and location of the property lines to ensure the
legality of granting the requested variance. Mr. Davies said the Finch property is located in R-3 zoning district
and noted that the Zoning Ordinance is online and cites a 50 foot
setback from the There was discussion about the location of Mr. Rodgers suggested a variance of 40 foot variance. He said the
Finches can’t build the garage on any other location on the property.
Mr. Holt said that the other thing that speaks volumes is that the
Finches have a building permit. Ms. Loz questioned if the proposed
garage creates any kind of a blind spot when exiting the garage and
entering the road. Also, when traveling down the driveway, the driver
can’t see to the right down the road. She raised the point that it
might create a traffic hazard. Ms. Thoits asked about the location of the garage door. Ms. Finch
said exiting the garage places you directly into the driveway and there
is another 20 feet of driveway before reaching the road. Ms. Thoits asked the Finches how long they’ve lived there. Ms.
Finch said six years. Ms. Thoits said the Road Agent does not think the
proposed location of the garage is not safe, that it is too close to the
road. When the Road Agent plows, she asked if the Finches had any
problems with the snow accumulation. Ms. Finch said no. The plow
deposits the snow up to the stone wall. Mr. Davies said that even though the Finches have a Building Permit,
they signed a document that states knowledge of the Zoning regulations
and intent to abide by them. Having a Building Permit does not mean the
applicant has gained anything, from the Town’s point of view. He asked
how many acres belong to the Finches. Ms. Finch said three and a half
acres. He said the Board must consider if the Finches site is unique to
others in the area. He said other site near the Finches have slope, etc.
and asked if the Finches talked with their contractor about moving the
garage 30 feet up where there could be a concrete wall and a flat slab
off the concrete wall. Ms. Finch said no because of the ledge. Mr.
Davies said it is an expense consideration to build where it is flat so
no major excavation would have to take place. Ms. Finch said the
contractor said he couldn’t dig into the ledge because he didn’t
know how big the ledge piece was. She said he did try to dig around it
and couldn’t. Ms. Thoits asked the Board if there were any further questions. There
being no further questions from the Board, she opened the Public Hearing
part of the session. Ms. Thoits asked if there were any abutters in the
audience who wished to speak. There being no abutters or anyone else in
the audience wishing to speak, Ms. Thoits closed the Public Hearing and
reopened the meeting. Ms. Thoits asked the Board for further comments. Mr. Rodgers said the
Finches should be allowed to build the garage on their property. Mr.
Nolen agreed. Mr. Davies made a motion that the Board continue the hearing and get
feedback from Alan Brown, the Town Road Agent. A letter was referred to by Mr. Davies and read into the record by
Mr. Rodgers as follows: “The
property owner was notified by phone conversation on The motion made by Mr. Davies died for lack of a second. Ms. Thoits said she agreed with Mr. Rodgers that Mr. Brown knew the
Board was meeting tonight to hearing the Finch case and if he was
opposed to the variance, he should be in attendance. Mr. Davies said the
Road Agent is very busy in the Town, but the information relayed through
Ms. Thoits about Mr. Brown’s opposition to the Finch’s proposal may
be an issue that the Board should look into. Mr. Nolen asked Ms. Finch if she was present for the conversation
between Mr. Brown and the Finch’s contractor. She said no. Mr. Nolen
asked if there were any issues between the two other than the setback.
She said no. Ms. Loz asked if the Board has a full understanding of what the Mr. Davies MOVED to continue the hearing based on the information we
are receiving from Alan Brown, the Town Road Agent; verifying what the
applicant’s boundary line point is; and to have a site walk to see if
there is another location on the site that would be decent to build on.
Ms. Loz seconded. Ms Thoits asked for discussion on the motion. Mr. Nolen said that if the Town Road Agent has a problem with the
setback, it’s a black and white issue. The work stops and the problem
is addressed. The applicant is going through the process and has
presented adequate information and discussion that negates the necessity
of a site. Ms. Thoits said the request is for a fairly large variance. Mr. Holt
said there is a question about the stone wall is the boundary. Ms. Loz
said the Board does not have all the information needed to grant a
variance. Mr. Rodgers disagreed, saying the Board can make the variance
for 40 feet. There was discussion about property lines, Ms. Loz said the case depends on the special conditions of the
property. She said the garage must be placed where it is on the proposal
because there is no other remaining buildable location on the property. There was further discussion about the size [in feet] of the
variance. Ms. Thoits said the Board needed to vote on the motion made by
Mr. Davies, Mr. Davies said if there was more information available to the Board
there might be alternative locations for the proposed garage which, in
turn, would lessen the magnitude of the requested variance. Ms. Thoits called for a vote. She said a “yes” vote would
continue the hearing for a month; a “no” vote would resume the
hearing. The vote was taken. Mr. Rodgers, no; Ms. Loz, no; Mr. Holt, no;
Mr. Davies, yes; Ms. Thoits, no. The motion did not pass and the hearing
continued. Mr. Rodgers MOVED to grant the variance of 35 feet from the property
line to the setback to the Finches for the reasons stated in the
application and read into the minutes. Mr. Holt seconded. Ms. Thoits
asked for discussion on the motion. Mr. Davies MOVED to amend Mr. Rodgers motion to have a requirement to
have proof where the boundary line is. Mr. Rodgers asked Mr. Davies if
that means the Finches would have to hire a surveyor. Mr. Davies said
yes. Mr. Rodgers continued, saying that when the Finches bought their
property, they were told by the Town that the boundary line was the
stone wall and then someone came in with a stake and said that’s where
your property line is and now they will be made to pay $1500 to survey
it? Mr. Davies said most of the plans that come through the Planning
Board have pins on the boards, have drill marks on the boards, have
monuments on the boards. Mr. Rodgers says that’s important in subdivisions for the Planning
Board. This is a garage. Ms. Thoits asked for a second for the motion for an amendment made by
Mr. Davies. There being no second, the motion died. There being no further discussion on the motion to grant made by Mr.
Rodgers. A “yes” granted the variance. Ms. Thoits called for a vote.
The vote was taken. Mr. Davies, no; Mr. Holt, yes; Ms. Loz, yes; Mr.
Rodgers, yes; Ms. Thoits, yes. The motion was PASSED. Ms. Thoits said that there is a 30-day appeal period for anyone to
appeal the decision of the Board. Ms. Finch asked exactly what the Board has granted. Mr. Rodgers said
that they have 15 feet as a minimum from wherever your property line is
before your building can start. There was further discussion about property lines, There was discussion regarding the role of the Zoning Board of
Adjustment (ZBA) and offering “consultations”. Ms. Thoits said the
ZBA is not allowed to offer “consultations” but the Board can offer
“informational meetings” to assist individuals with informational
guidance regarding variances. 2. CONCEPTUAL CONSULTATION a. Applicants:
Cersosimo Industries, Tim Hanson, Respresentative, b. Property Location: c. Proposed Use:
Subdivide one (1) parcel into two within five (5) years of having
been previously subdivided. Mr. Hanson was present to meet with the Board. He asked for
assistance with definitions that appear in the zoning ordinance. He said
the property in question was subdivided in 2006 into two lots. Mr. Hanson read the definitions for major and minor subdivision as
they appear in the Town Zoning Ordinance: “Major Subdivision” means
any subdivision, which creates four (4) or more lots or a minor
subdivision for which a request for further subdivision is received
within a 5-year period of the date of approval of minor subdivision
[Amended March 2007]. “Minor Subdivision” means
any subdivision which creates three (3) or fewer lots or condominium
units which does not require the construction of any new street or the
extension of municipal facilities, and which is not in conflict with any
duly accepted or approved street, plan or map [Approved March 2005]. He said he submitted an application to the Planning Board to create
one additional lot from the subdivision that was created in 2006 that
created two lots. So within the five (5) year period I am creating three
lots but I still have to go under the major subdivision rule. Ms. Thoits said that’s the rule of the Planning Board. Mr. Hanson asked if he could ask for relief from the major
subdivision rule because it calls for the open space ordinance. He said
he is trying to create one additional five-acre lot on a 90 acre piece
of property. The Open Space development coordinates requires a 12-acre
lot instead of a five-acre lot. He said the alternative is to create a
five-acre lot and create additional open space which would leave him
with 85 acres, 50 acres of which would go into a conservation easement. Mr. Hanson asked the Board if he could apply for a variance so he
could create a minor subdivision instead of falling under the
requirements of a major subdivision. Mr. Rodgers said this has nothing to do with the Zoning Board. Mr. Davies said Mr. Hanson may be asking for a variance from the
Planning Board’s five-year rule and clarification on whether it’s a
use or area variance. There was further discussion about Mr. Hanson’s plans and what
variance he should be applying for. Mr. Rodgers questioned the Board’s authority in granting a variance
on the five-year rule. Ms.
Thoits said yes, the Board can grant or deny a variance on anything in
the zoning ordinance including the minor/major subdivision regulations. There was further discussion about the timing of applications in the
face of upcoming changes applying to variance criteria and how that
affects what criteria is used when considering the variance application.
Mr. Hanson asked if his situation would be a special exception. Ms.
Thoits said no. Mr. Hanson asked about the date when the major/minor subdivision
language was written and if that could be used to apply to his
situation. Mr. Davies said that would be brought up when an application
was submitted to the Board. Dan Watts suggested that Mr. Hanson write to the Planning Board for
clarification since they write the regulations. 3.
FINAL Ms. Thoits read the proposed amendment to the Rules of Procedure as follows: To add as Item number 3 under Officers: “In the absence or
unavailability of the Chairperson and Vice Chairperson the members
present shall select a Regular Member to exercise the duties of the
Chairperson.” Ms. Thoits said this is the final reading of the proposed amendment. She called for a vote. Mr. Davies MOVED to put the amendment into the Rules of Procedure as
read by Chairperson Thoits. Mr. Holt seconded. All in favor. 4.
MINUTES Mr. Rodgers MOVED to approve the minutes of 5. COMMUNICATIONS Mr. Davies reported to the Board that the Planning Board will be
Holding a Public Hearing on
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