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Board of Adjustment Minutes 08/07/2013
Chichester Zoning Board of Adjustment
Minutes of Meeting
Case # 2013-B
Wednesday, August 7, 2013

Members Present:  Chairman Mark McIntosh, Mike Paveglio, David Dobson, Ben Brown, Richard Millette, Steve MacCleery, and Secretary Jamie A Pike.

Others Present:  Atty Maria Dolder, Brian Kelly, Raymond Shea, Philip Hitchcock, Katherine Browall, Richard Grasso, and Ann Davis.

Chairman McIntosh called the meeting to order at 7:02pm.

Case# 2013-B  A variance is requested from Article 2.04 Section C(I), of the zoning ordinance to permit the establishment of two (2) lots, each with a minimum lot of size of two and a half (2.5) acres, where based on the property’s soil classification, a minimum of five (5) acres is required.

Maria Dolder, attorney for Brian Kelly introduced the case by reading a prepared narrative. (Attached)

Ms. Dolder submitted 13 letters of support from the abutting property owners in favor of Mr. Kelly subdividing the property.  Ms. Dolder also submitted photos of the two homes located on the property and their views from and towards the home from various points.

Mr. McIntosh asked if the subdivided property could be sold.  Ms. Dolder responded that yes the property could be sold, it was not the intent of Mr. Kelly to do so.

Mr. Brown discussed the points on how the application defined the property as unique with it containing two homes.  Mr. Brown argued that the property is not unique, as there have been several temporary second homes allowed throughout the town for elderly relatives.  Ms. Dolder countered by recognizing that the home that was constructed was not a trailer/mobile home as typical in other cases, and that their argument is that it is unique due to the extensive level of development in this scenario where a modular home was built, a driveway was constructed, and separate waste disposal and water supply systems were constructed.

Mr. Brown also expressed his desire to not create precedence for the other allowed elderly dwellings throughout the town.  Ms. Dolder expressed that most of the abutting lots in this scenario are residential and of 2 or less acres, and that this subdivision would not be contrary to the characteristics of the neighborhood.

Mr. Paveglio expressed that he feels considering the property unique is a stretch.  He explained that Mr. Kelly was fully aware that the home had to be removed upon its vacancy.  Ms. Dolder accepted the fact that the home was to be removed, but the Board must look at the property as it stands today regardless of any prior approvals of use.

Mr. Hitchcock requested to know if there were any other lots in town that had been granted a similar variance.  Mr. Brown responded that he does not recall any instances in the past twenty years other than a variance for a minimal frontage reduction which was for parcels of extensive size.  Katherine Browall stated that having the home there on a separate lot is not an inconvenience to the neighborhood, where the noise and sight pollution associated with the removal of the home would be.  Mr. Grasso stated that he has known Mr. Kelly for 20+ years, and that Mr. Kelly is very conscientious about maintaining the natural beauty of the land.

Mr. Shea, surveyor, stated that there is no scientific correlation between the 5 acre zoning requirement and the State issued rules and regulations regarding lot sizing and development of septic disposal systems.

Ms. Dolder pointed out that Lot 20 is only 1.7 acres.  There was no data available to determine why this lot was less than the standard acreage.

Mr. Millette stated that when an in-law (elderly housing unit) is granted, the Town is entering into a “contract” with the landowner that the house is temporary and will require future removal and does not feel that this property is unique from other lots of the same granting of use.

Mr. Paveglio and Mr. Brown agreed that, yes, there may be a limited short term adverse effect on the abutting properties during the removal of the home, but the long term benefits preserve the intent and purpose of the ordinance by maintaining larger parcels.

The Board discussed at length the five (5) criteria:

Mr. MacCleery thought that it would be contrary, because when the zoning was originally written, soils were used to determine appropriate lot sizes and allowed for the placement of future septic disposal systems should they fail.

Mr. Paveglio, citing, Chester Rod and Gun Club Inc v. Town of Chester, 152 NH577 (2005), that for a variance to be contrary to the public interest, it must unduly and to a marked degree violate the basic zoning objectives of the zoning ordinance.  In this instance the property is in the Agricultural Zone requiring a minimum of 5 acre lots with a purpose of protecting agricultural soils from intense development.  Continued long term use of this property for a residential dwelling unit, negates its permitted short term use, and places an undue continued burden of development upon the site.

Other discussion occurred with regards to the lack of natural/physical uniqueness of the property.

Being no further discussion, a motion was made by Mr. Brown and seconded by Mr. McIntosh to deny the variance based upon the following findings:

1.  Granting the variance would be contrary to the public interest, although the proposed subdivision does not alter the essential characteristics of the neighborhood, it does violate the basic zoning objective, that being to preserve the rural characteristics of the community as a whole.

2. The spirit of the ordinance would not be observed because the purpose of the Rural Agricultural Zone is to provide areas suitable for development within the limitations of the soils to accommodate individual on-site water supply and sewage disposal systems, to preserve the rural character of the community and to protect the better agricultural soils from intense development.  While it is acknowledge that there are two (2) existing approved disposal systems and water supplies, there still needs to remain adequate space for future replacement systems.  The spirit of the ordinance would also not be observed where the applicant had previously received a permit to construct the secondary home under Article 3 Section 3, E(III) (Formerly Article 3, Section C, Paragraph A (III), Subsection C), which states “[The Building Inspector May Permit] More permanent use of a house trailer or mobile home to an existing residence a temporary accessory solely for the purpose of elderly housing for relations, permitted during life of occupant, and thereafter removed.”  Mr. Kelly was fully aware at the time of this prior approval, that the removal of the home was required upon its vacancy by the occupants and the existence of the second temporary structure should not be reason to allow a substandard lot.

3.  Granting the variance would not do substantial justice whereas the applicant chose to build a more permanent structure than permitted within the confines of the Zoning Ordinance and conversely allowed by the Board of Selectmen at the time of construction and whereas the applicant was fully aware and understood the fact that said structure was temporary and required future removal. It would also not do substantial justice to grant this variance to reverse the original violation of the zoning ordinance by the building of this more permanent structure when it was clearly not allowed.

4.  The values of the surrounding properties would not be diminished if the home was removed and the lot restored to an aesthetically pleasing state.

5.  The property, not have any special conditions that distinguish it from other properties in the area, would not result in unnecessary hardship from denial of the variance.  Also, there is not a fair and substantial relationship between the general public purpose of the ordinance provision and the specific application of that provision to the property and the proposed use is not a reasonable one because the property has no natural uniqueness where the arguments provided by the applicant provide such physical characteristics that were caused by the applicant and is no more unique than any other approved and developed temporary elderly residence within the Town of Chichester.  It is acknowledged that the applicant understood the restrictions and requirements placed upon the development of the second structure.

MOTION CARRIES by a unanimous vote of the members present.

Other business:

Mr. McIntosh questioned Mr. Paveglio as to the process for making a zoning complaint.  The complaint is in reference to the electronic message board at Bobcat of NH.  The message changes frequently and scrolls.  Mr. Paveglio stated that he shall use the minutes of the meeting as a formal complaint and bring such forward to the Board of Selectmen.
Mr. MacCleery provided the Board with an update as to the status of Holly MacCleery.  While there has been a recent set back, Ms. MacCleery still wishes to return as the Board’s secretary upon marked improvement in her health.

Being no further business, Mr. McIntosh adjourned the meeting at 8:50pm.

Respectfully submitted,



Jamie A Pike

Not approved until signed.


Mark McIntosh, Chairman

Attachment:     Narrative in Support of Variance Application of Brian P Kelly.
                Notice of Decision













 
 

Town of Chichester
Zoning Board of Adjustment
54 Main Street
Chichester, New Hampshire 03258
(603) 798-5350   Fax (603)798-3170




Notice of Decision

You are hereby notified that the request of Brian Kelly, Map 7 Lot 26-1 for a variance from Article 2.04 Section C(I), of the zoning ordinance to permit the establishment of two (2) lots, each with a minimum lot of size of two and a half (2.5) acres, where based on the property’s soil classification, a minimum of five (5) acres is required has been DENIED, based upon the following finding, by the affirmative vote of the five members of the Zoning Board of Adjustment.

1.  Granting the variance would be contrary to the public interest, although the proposed subdivision does not alter the essential characteristics of the neighborhood, it does violate the basic zoning objective, that being to preserve the rural characteristics of the community as a whole.

2. The spirit of the ordinance would not be observed because the purpose of the Rural Agricultural Zone is to provide areas suitable for development within the limitations of the soils to accommodate individual on-site water supply and sewage disposal systems, to preserve the rural character of the community and to protect the better agricultural soils from intense development.  While it is acknowledge that there are two (2) existing approved disposal systems and water supplies, there still needs to remain adequate space for future replacement systems.  The spirit of the ordinance would also not be observed where the applicant had previously received a permit to construct the secondary home under Article 3 Section 3, E(III) (Formerly Article 3, Section C, Paragraph A (III), Subsection C), which states “[The Building Inspector May Permit] More permanent use of a house trailer or mobile home to an existing residence a temporary accessory solely for the purpose of elderly housing for relations, permitted during life of occupant, and thereafter removed.”  Mr. Kelly was fully aware at the time of this prior approval, that the removal of the home was required upon its vacancy by the occupants and the existence of the second temporary structure should not be reason to allow a substandard lot.

3.  Granting the variance would not do substantial justice whereas the applicant chose to build a more permanent structure than permitted within the confines of the Zoning Ordinance and conversely allowed by the Board of Selectmen at the time of construction and whereas the applicant was fully aware and understood the fact that said structure was temporary and required future removal. It would also not do substantial justice to grant this variance to reverse the original violation of the zoning ordinance by the building of this more permanent structure when it was clearly not allowed.

4.  The values of the surrounding properties would not be diminished if the home was removed and the lot restored to an aesthetically pleasing state.

5.  The property, not have any special conditions that distinguish it from other properties in the area, would not result in unnecessary hardship from denial of the variance.  Also, there is not a fair and substantial relationship between the general public purpose of the ordinance provision and the specific application of that provision to the property and the proposed use is not a reasonable one because the property has no natural uniqueness where the arguments provided by the applicant provide such physical characteristics that were caused by the applicant and is no more unique than any other approved and developed temporary elderly residence within the Town of Chichester.  It is acknowledged that the applicant understood the restrictions and requirements placed upon the development of the second structure.



______________________________________
Mark McIntosh, Chairman

______________________________________
Date

Note:  The selectmen, any party to the action or any person directly affected has a right to appeal this decision.  See New Hampshire Revised Statutes Annotated, Chapter 677, available at the Chichester Town Offices, 54 Main Street.  This notice has been placed on file and made available for public inspection in the records of the ZBA on the ________ day of ________, 2013.  Copies of this notice have been distributed to: the applicant, Planning Board, Board of Selectmen, and Town Clerk.



_____________________________________
Jamie A Pike, Secretary



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