ZONING BOARD OF ADJUSTMENT
June 7, 2006
7/5/06_________
AGENDA: VARIANCE: THOMAS BABCOCK, 65 Summer St., #114-050
REHEARING: THOMAS BABCOCK, 65 Summer St., #114-050
CONT. VARIANCE: JOHN J. SULDENSKI, 8 Central St.,
#114-123
VARIANCE: JANICE DELLACROCE & ROGER LUNDSKOG, 27 West Shore Road, #110-008
VARIANCE: PATRICIA M. THURBER, Lakeside Drive,
#107-139
ATTENDING: Jay Meegan (Chairman), Michael Willingham (Vice Chairman), Donna Hardy, Sandra Heaney.
Alternates: Lloyd Belbin, Dan Bouchard, Lorraine Oranatto-Sullivan
ABSENT: Linda Lee (alternate), Susan Colby (alternate – away)
OTHER: Steve Favorite (Selectman), Norman Skantze (Fire Chief),
Various public.
The meeting began at 7:00 p.m. Lloyd Belbin was asked to fill the vacancy left by Bruce VanDerven.
MINUTES OF MAY 3, 2006: S. Heaney made a motion, second by D. Hardy, to accept the minutes as read. The motion carried.
REHEARING: THOMAS BABCOCK:
Ms. Oranatto-Sullivan and Mr. Bouchard were asked to fill in for Mr. Willingham (a co-worker of the applicant) and Ms. Heaney (an abutter). Mr. Meegan explained the procedure for hearings.
Ms. Laferriere read the application for rehearing, the abutters notified, where the hearing was advertised and said that there were no telephone calls nor any written correspondence received.
Leigh Ambrose-Willey, attorney for the case, asked if they could hear the Continued Variance first. The Board felt that this would be okay.
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CONTINUED VARIANCE: THOMAS BABCOCK:
Mr. Babcock distributed new information and some photos. He explained that Dr. Sheddy is a current tenant and he also has his residence in the building. He has a 2-car garage in the rear in which he would like to live in. There is sufficient setbacks and acreage, but his does not have enough frontage to subdivide. He pointed out how he would like to subdivide the property but stated that this would be a defacto subdivision.
Mr. Meegan explained that a subdivision, whether actual or defacto, would need to go to the Planning Board as well. Mr. Babcock explained that the present driveway would be either an easement or a right-of-way for the rear “lot”.
At this time, D. Bouchard made a MOTION, second by Ms. Oranatto-Sullivan, to ACCEPT THE APPLICATION AS COMPLETE. The motion CARRIED.
Ms. Ambrose-Willey stated that this is a Variance to Article III, 3.3A. She then addressed the six criteria:
1. Special features/hardship – Ms. Ambrose-Willey explained that this is an Area Variance. She cited Boccia versus City of Portsmouth as an example and stated that this is in the Village Commercial district. The lots around this property are of similar size, are commercial, and have multi-uses and some single residences. From August to December, the Babcock’s must leave the property due to the health problems created for Ms. Babcock at that time. It is a genuine hardship for her. The lot has a little over 200’ in length but is short for frontage in order to subdivide. There is ample parking for both lots. The Babcock’s are willing to restrict the deed to no further subdivisions. They do not want to physically subdivide the property.
Mr. Meegan stated that they will still be required to hold a Subdivision with the Planning Board even if this is a defacto subdivision.
Ms. Ambrose-Willey agreed and said that the property is sufficient to subdivide except for limited frontage. The hardship of illness is strictly for background information. All of this creates a hardship. They wish to move the primary residence to the garage section and will rent where they live now. They feel that this is reasonably feasible as they have explored a number of options instead of selling. They could add to the present building without coming for a Variance but they feel that this would not be practical or attractive.
2. Minimum Variance – Ms. Ambrose-Willey stated that they feel this is reasonable. The garage will be finished to look like a barn. They feel that the only other option to them is a Use Variance.
3. No Diminution of Value – the property will look no different except that the garage will be finished. The property shall be attractively landscaped, as well.
Mr. Babcock added that they have improved the property every since they bought it.
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BABCOCK VARIANCE continued:
4. Benefit to the Public Interest – this will benefit as they will make it most attractive and it shall be well maintained. It also opens another unit for the Downtown area. They could make it a multi-family but the Babcock’s would prefer to do it this way.
5. Substantial Justice – Ms. Babcock is forced to move out for part of the year.
Mr. Babcock stated that they are to rent a place from August to November.
6. Spirit of the Ordinance – The Ordinance is designed for relief from overcrowding. These are existing buildings and the Babcocks do not actually intend to subdivide the property physically so as to have the least amount of impact.
Mr. Belbin asked the size of the apartment and Mr. Babcock answered that it is 24’ x 32’. The garage will be 28’ x 32’ so as to give it some character.
The public portion of the hearing was opened. Sandra Heaney, abutter, has no objection and would like to keep the Babcocks as neighbors.
Mike Willingham, friend and resident of Bristol, stated that through the deed restriction, the Variance would go into perpetuity. He said this to clarify the intent for the Board.
Mr. Belbin asked if this is Commercial or Residential. Mr. Meegan felt that Commercial would be subject to Site Plan. Mr. Babcock stated that, at this time, there is a Commercial unit with a Residence and the Garage would become a Residence.
Susan Duncan, resident of Bristol, stated that the voters never intended to prevent someone from using their home. She had a similar problem once herself. She feels that the Board should show empathy.
Vickie Milliken, abutter, is in favor and backs what Ms. Duncan has stated.
There was no opposition to this plan.
Mr. Meegan then summarized the argument given:
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BABCOCK VARIANCE continued:
Ms. Ambrose-Willey added that the only reason they cannot just do this is the lack of frontage. Mr. Babcock added that, when finished there will be only an insignificant change to what is there now.
At this time, Mr. Meegan closed the public section of the hearing. He directed the Board to separate what was said at the previous Variance from what we have heard tonight. The Board then addressed the six criteria:
1. Hardship – Mr. Bouchard said that this variance is on frontage and asked if it needs subdivision. Mr. Meegan explained that a subdivision, whether actual or defacto, requires a subdivision for two main buildings. They have 88; of frontage where 75’ is required for each. Mr. Meegan felt that the applicant has met this requirement.
Mr. Belbin thought that this makes a subdivision with 13’ of frontage for each. Mr. Meegan explained that this becomes a part of what the Planning Board addresses in the Subdivision. Mr. Belbin went on to say that 24,500 sq. ft. is needed and they only have 21,780 sq. ft. A discussion followed. Mr. Meegan felt that this comes under the Planning Board’s jurisdiction in the Village Commercial district. The Bed and Breakfast would need a Site Plan but it is not relevant here. Mr. Belbin pointed out the square footage portion in the Zoning Ordinance on page 12. Again, Mr. Meegan felt that this is part of the Planning Board, though the Board can look at it. Mr. Babcock stated that their intent is not to actually subdivide and he felt that it is doable. Everyone went over the figures and found that the square footage is just under what is required. Mr. Meegan felt that they will need another Variance to cover this. Ms. Heaney suggested that it might change once they have a survey done. Mr. Meegan explained to Mr. Belbin, who is new, that this discrepancy should have come up in the first phase of the variance. He felt that they should continue this hearing and allow the applicant to go for a 2nd variance. Mr. Babcock agreed and asked to do this. Members of the Board asked to have plans that show the property division and the driveway.
D. Bouchard made a MOTION, second by D. Hardy, to CONTINUE THIS HEARING TO AUGUST 2, 2006. The motion CARRIED.
REHEARING: THOMAS BABCOCK
As the rehearing is based on this variance, the applicant asked that the rehearing be continued also.
D. Hardy made a MOTION, second by D. Bouchard, to CONTINUE THE REHEARING TO AUGUST 2, 2006. The motion CARRIED.
At this time, Ms. Heaney and Mr. Willingham returned to the Table.
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CONTINUED VARIANCE, JOHN J. SULDENSKI
Mr. Meegan explained that Mr. Suldenski has asked for a continuation as he did not get the fees in for re-notification of the abutters as the Board asked (due to this case being continued so many times).
S. Heaney made a MOTION, D. Hardy gave a second, to CONTINUED THE VARIANCE FOR JOHN J. SULDENSKI TO JULY 5, 2006. The motion CARRIED.
VARIANCE: JANICE DELLACROCE & ROGER LUNDSKOG
Mr. Meegan gave a brief description of procedure for the benefit of those who had come in after he explained these earlier. The secretary then read the application, referral, abutters notified, where the hearing was advertised and stated that there were no phone calls or written responses that were received.
Ms. DellaCroce explained that they want to put up an accessory building (a 2-car garage). It will be placed 44’ from the house.
Mr. Meegan asked if they changed the position of the right-of-way as it does not match what is on the tax map exactly. Mr. Lundskog stated that this won’t change where they have been passing. Mr. Belbin explained that when he went to view the property, what is on the map is not where the right-of-way is being used. They wish to place the garage here so as not to need a variance for the distance from the river.
Mr. Willingham asked if they live there year round and was told that they do.
Don Martin, abutter and president of the Windridge Condo. Association, stated that the right-of-way is for them and they are concerned about the water right-of-way of 15’ wide that is on their deed (he presented a copy to the Board). He explained that the right-of-way is for foot traffic and a water line for them. Ms. DellaCroce stated that the Water Dept. told her that if she was to get town water, it would come from the Holiday Hills complex. She questions why theirs would not be the same. Mr. Martin questioned just where the water lines are. Ms. DellaCroce assumes that they are pretty much where the natural flow of the foot traffic goes.
Jim Happnie, abutter, stated that the right-of-way at the end of the house has a clearly marked path. Mr. Willingham asked if Mr. Happnie knew where the water lines are. He did not.
Ms. DellaCroce stated that bluestone was placed for the path before she purchased the property. Ms. Heaney felt that the applicants should see Jeff Chartier, Water/Sewer Superintendent, about this. Mr. Meegan added that they should get a written letter from him. Mr. Willingham thought that they might need a survey to determine any discrepancy of the right-of-way. Mr. Meegan stated that the easement should also be in their deed. The Board then explained that they need to know where the easement is so that the garage does not get placed over it.
Ms. DellaCroce and Mr. Lundskog questioned why they are just learning of this need now and Mr. Meegan read the instructions, asking for these things, which is included with every variance application.
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DELLACROCE/LUNDSKOG VARIANCE continued:
Mr. Martin stated that he does not feel that a survey is necessary to satisfy this. As long as the right-o-way is not impeded and a letter is received from the Water/Sewer Dept. that should suffice. Mr. Meegan agreed. Mr. Belbin felt it would be alright to eliminate doing a right-of-way survey and to just get something from Mr. Chartier about the water. Mr. Meegan agreed.
Ms. DellaCroce asked to have the variance continued.
S. Heaney made a MOTION, second by L. Belbin, to CONTINUE THE VARIANCE TO JULY 5, 2006 SO AS TO GET SOMETHING IN REGARD TO THE WATER LINE. The motion CARRIED.
VARIANCE: PATRICIA M. THURBER/KEVIN FRENCH/LEIGH AMBROSE-WILLEY
The secretary read the application, referral, abutters notified, where the hearing was advertised and stated that there were no phone calls or written messages received.
Mr. Willingham asked if this property is listed for sale and was told that it is not.
Mr. French presented the full scale plans of this project. Ms. Ambrose-Willey then stated that they own a lot in Red Fox with a deeded right to this shore lot. Currently, there is a 6’ x 8’ changing cabana with a deck and dock. Ms. Ambrose-Willey has spoken with DES and the State considers a changing cabana as an accessory structure. They wish to relocate the cabana farther back from the shore but it will still stay within the setback. Ms. Ambrose-Willey then proceeded to go over the six criteria needed for a variance:
1. Special features/Hardship – The property was purchased in June 2000 and is
consistent with the surrounding properties. It consists of 2,180 sq. ft. with some woods and with some slope. The cabana is for changing and has a toilet and a staircase to get to it. The stairs are unsafe and the cabana needs repair. They wish to build a 10’ x 12’ with a 2’ overhang instead. Because of the slope, they wish to replace the steps with a bridge-like walkway to provide easier access that is flatter. They shall re-landscape. The size and terrain of the lot does not allow to do much of anything.
Mr. Meegan asked if they can repair the existing cabana. Ms. Ambrose-Willey stated that they are trying to do more like the surrounding properties and also to be less non-conforming (referring to the Shoreland Protection Act). Mr. Meegan said that it also will create more impervious surface. Mr. French said that it will be placed 6’ further from the shore. The applicants would then come in to the second story screen room and then down a set of stairs on the outside. Mr. Meegan reminded them that the structure itself is to be bigger and will disturb more shorefront.
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THURBER VARIANCE continued:
Ms. Heaney stated that the ground floor is to be 10’ x 20’ with a 2’ overhang plus stairs of 3’ x 13’. This makes the project go from 48 sq. ft. to 250 sq. ft. When asked how large the lot was, Mr. French answered that it had 2,180 sq. ft. so this would be a total of about 10% (the Lake district allows 25%). Ms. Heaney stated that she is not sure that this is relevant where it is already a non-conforming lot.
Ms. Ambrose-Willey went on to say that the second part of this section is to update the present cabana and to improve the access. The lot is an unbuildable lot.
2. Minimum Variance – Once the setbacks are considered, this is not much of a
variance. It will also be more attractive.
3. Diminution of value – It will be enhanced esthetically and be safer. It will not
impact anyone’s view and will look nice from the water.
4. Benefit the public interest – It will not interfere with views, will blend with
others and be further from shore. This will be okay for the Shoreland Protection. It is the expected use of the property and will be re-landscaped.
5. Substantial justice – This is a fair and reasonable use. The applicant has been
here for six years and has been coming up for ages. The structures around are much larger. It will be safer and be better as far as the Shoreland Protection Act.
6. Spirit of the Ordinance – The plan is to relocate to meet their needs, will be
more attractive, be similar to the neighborhood and meet DES requirements.
The use will remain the same. The shoreland is a precious area and they are
trying to preserve it while still having the use.
Mr. French stated that this is an area where most residences are on the Lake and this is farther back and is only an accessory use. Mr. Meegan stated that it is not an accessory building per the Bristol Ordinance. Ms. Ambrose-Willey stated that DES has the same description but have based their opinion on the character of Newfound Lake. Mr. Meegan added that Bristol’s definition makes it a primary building as there is no other building on the lot. An accessory building is on the same lot as a primary building. Mr. French said that he calls this an accessory building as it is deeded an accessory use to their residence. A discussion followed.
Mr. Meegan explained that this lot could be sold separately. Mr. French stated that it says that it cannot be separated. Mr. Thurber stated that he would not have bought it if it wasn’t together. Mr. Meegan mentioned that Bristol has a case right now in which
property was not to be sold separately but it has been. A discussion continued.
Ms. Ambrose-Willey emphasized that it is an accessory use to the Red Fox property because of the make-up of deeded shore lots. She presented a copy of the DES definition. Ms. Heaney stated that what they said is contrary to their own definition. Ms. Ambrose-Willey answered that the lady she spoke with said that they would not need a State permit. They feel that Newfound is unique.
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THURBER VARIANCE continued:
Both Ms. Heaney and Mr. Meegan pointed out that the purpose of the property is to enjoy the Lake. Ms. Heaney added that, today, they would not be allowed to build anything there if this was a bare lot. Ms. Ambrose-Willey answered that they could if they got a variance.
Mr. Willingham said that the deed restriction will run with the land. Mr. Meegan pointed out that the minimum would be to repair the stairs and fix the current cabana. Ms. Ambrose-Willey stated that the applicants cannot get around as much as they used to. Mr. Willingham stated that the Board is struggling with the accessory building and they have an impervious surface problem. They are saying that you can repair or rebuild in the same footprint as what is there now is grandfathered.
Brackley Shaw, architect for the project, asked if the Board couldn’t grant the variance as an accessory building even thought it is not on the same lot. Mr. Meegan answered that he cannot blame the applicant from wanting to make it bigger but the Board has to consider the six criteria. Ms. Ambrose-Willey feels that it is a tough definition as the sole purpose is incidental. Ms. Heaney stated that the buildings are still on separate lots. Mr. Meegan asked what they would think if the lots were 10 – 12 miles away from each other. Ms. Ambrose-Willey stated again that it is an incidental lot.
The meeting was opened up for public comment.
Ms. Oranatto-Sullivan spoke as a resident and asked if this lot is part of an association. She was told that it is not part of Red Fox. She then asked about driving access or can they only get down by stairs. She was told that the only way is by stairs. She then asked what type of toilet it was and was told chemical. Ms. Oranatto-Sullivan then mentioned adding a second floor and said she was curious as to why they don’t just keep the 6’ x 8’ size.
With no other comment, Mr. Meegan summarized the applicant’s points:
1. The old structure is in need of repair, it will be of less impact, meets the State definition of accessory building and the lot is otherwise unusable. 2. Access will be safer. 3. Improvements will be increased and the view will not be blocked. 4. It will be similar to the surrounding properties and conform more to the Shoreland Protection Act. 5. It will allow for improvements and better access. 6. It will protect the shoreline and comply with what DES said.
Ms. Ambrose-Willey added that for #1, this has area use along with the proposed use of the property. The special conditions are the size of the property, the Shoreland Protection along with the slope and conditions of the property. #2 There is no other way to achieve this without a variance. #5 It is a reasonable and responsible development of the property and #6 It is for better protection of the shoreland and still use the property as they see fit. They will do what they can to blend it.
Mr. Belbin asked if this has electricity and was told that it does. He asked if it has its own meter and was told that it does. He then asked again what kind of toilet it has and was told an electric toilet.
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THURBER VARIANCE continued:
Mr. Meegan closed the public comment portion of the hearing. The Board then addressed the six criteria needed for a variance.
3. No Diminution – Mr. Meegan jumped to this criteria as the minimum variance
had been covered when they spoke about Hardship. He felt that it would not
diminish any values. The Board agreed unanimously.
4. Benefit the public interest – The discussion of it being a primary structure was
held. Ms. Heaney stated that a primary residence needs a 50’ setback.
Mr. Belbin then stated that he is hung up on #6 Spirit of the Ordinance. Ms. Heaney felt that the problem is that we are supposed to look to make things less non-conforming. Mr. Meegan read the Zoning Ordinance for non-conforming being rebuilt as long as it did not increase on the setbacks. He then read Article IV, 4.12 which states that the ordinance shall be administered so that deleterious effects on non-conforming lots, buildings, and uses shall be reduced and eventually eliminated. Mr. Belbin again asked if we could go with a 6’ x 8’ moved back and with a 2nd floor screen room and the ramp to it. Mr. Willingham felt that the new cabana improves the lot. More discussion followed.
Ms. Heaney felt that it cannot be less compliant. Mr. Meegan said that this is not a change of use whether it is a bigger cabana or not. Mr. Belbin felt that he could go along with it if it is a new 6’ x 8’ that is set back. Mr. Meegan asked how we reduce the non-conforming requirement. Ms. Heaney added that there will be more drainage to the Lake due to its being larger. Mr. Willingham agreed that it is non-conforming but it would improve the look and it is still a cabana. Mr. Meegan again read the sections on non-conforming (from the ordinance). Ms. Heaney stated that, in making it larger, they are making it more non-conforming. Mr. Willingham felt that the new one, placed farther from shore, would be less non-conforming. He also questioned a cabana being a structure as he thought that this description would refer to a primary building. Mr. Meegan read the definition of “Structure” from the ordinance. Mr. Willingham felt that the purpose of the ZBA is to sometimes look at what’s reasonable.
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THURBER VARIANCE continued:
The Board decided to take a vote on the criteria at this time. They addressed the Spirit of the Ordinance first: There were 3 no, 1 yes, and 1 thinking probably no. Mr. Willingham said that, if the applicant lived on the lot, he would agree but this is just a cabana which they are to move back from the Lake. Mr. Belbin felt that there would be no hardship if he kept it at 6’ x 8’. Ms. Hardy stated that the minimum variance would be to repair what is there.
#1. Special Features/Hardship – 1 for, 4 against.
#2. Minimum variance – 2 yes, 3 no.
#3. Diminution of value – 5 yes.
#4. Benefit to the public interest – 2 yes, 3 no.
#5. Substantial justice – 2 yes, 3 no.
#6. Spirit of the ordinance – 1 yes, 4 no.
The Variance was denied. With the Board’s permission, Mr. Meegan will write up the Denial form. He then explained that there is a 30 day time slot for an appeal.
COMMUNICATIONS:
Mr. Meegan read the notification for a seminar June 20th and for workshops on updated FEMA maps June 21 & 22. The May and June issues of Town & City magazine will be held in the office.
NEW BUSINESS:
Mr. Bouchard expressed that the Board might have been remiss in a decision and he cited Vignault vs. Hudson. Mr. Meegan explained that this case dealt with a 5-apartment building. A discussion was held as to how the two could tie in. Ms. Heaney pointed out that when we had the seminar with the Town Attorney, he had disagreed with this case.
The Board then discussed general procedures. Mr. Meegan stated that we look at them different when it is a proposed use versus an existing use. The Board can set conditions (and he pointed out that the Board did so in the Cliff Lodge case). Mr. Bouchard said that he did not realize that a cabana is not an allowed use.
A discussion was held as to members speaking from the audience unless they are an abutter or an interested party in particular. This could be reason for them not to be allowed to serve on the Board for the case if necessary.
With no other business, M. Willingham made a motion, second by S. Heaney, to adjourn at 10:30 pm.
Respectfully submitted,
Jan Laferriere, secretary