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December 17, 2003 - BOA
Chichester Board of Adjustment Minutes
December 17, 2003

Members Present:  Stephen MacCleery, Chairman; Edward Meehan; Richard DeBold; Louis Barker, Douglas Hamel.

Abutters Present:  Ewen MacKinnon, Robert Gray, and Jeffrey Pullen

Applicant James Mullaney, Case # 166 Map 2 Lot 67 & Case # 167 Map 2 Lot77 requesting an appeal from an administrative decision of the Planning Board for vesting to wetland setback and an appeal from the Building Inspector for growth management ordinance and a variance from Article III, Section II, L to permit more than 3 lots per year, per development for building permits.

Meeting was called to order at 7:03 PM.

1.)  Mr. Mullaney is appealing the letter he received from the Planning Board in regards to the wetland setback.  This decision and the applicability of the entire subdivision  to the growth management ordinance have been appealed to Superior Court.  There were terms and conditions of the approval from the town we believe are not lawful.  This will be litigated sometime in January.  Mr. Mullaney feels Malachy Glen subdivision in its entirety is subject to the 4-year exemption from the adoption of the growth management ordinance.

Plan of the second phase was presented to the board.  With regard to the wetland setback the RSAs are pretty clear that if the property is under consideration by the Planning Board prior to the posting of the notice to a change in zoning, the subdivision has a 4-year exemption.  Application was filed in August of 2002 and a conceptional meeting was held.  Check for $10,000 was given to Andrea Deachman, Secretary to the Planning Board, which was cased in Sept. 2002.  First notice of setback regulations was posed in November.  Hearings were continued and didn’t reconvene until 2003.  Date on the subdivision plat is 8/7/03 written by the surveyor.  This plan has not been approved and signed by the Planning Board.  Plan has conditional final approval but Mr. Mullaney doesn’t like the conditions.  He is referring to the Planning Board letter from Tracy Scott, #8 which states “This parcel is subject to the new zoning ordinance regarding the 100’ setback from wetland because when the parcels are sold and the new owners begin to build upon them they will have to abide by this ordinance.:

Board feels that dates need to be established before a decision can be made.  These dates need to be obtained from the Planning Board or from copies that Mr. Mullaney may have.

Walter Sanborn mentioned that every subdivision goes to the conservation commission about wetland impact.  Wetland regulations come from the State Wetland Board.  

Mr. Mullaney said the first week after Christmas he is expecting approval from the wetland board.

Richard DeBold motioned to continue this hearing until such time as dates of approval and postings can be obtained from the applicant and/or Planning Board.  Doug Hamel seconded.  Motion carried 5-0.  This motion pertains to both lots 67 & 77 of map 2.

2).  Mr. Mullaney is appealing the letter from the Building Inspector dated Sept. 25, 2003, the paragraph which states “Your subdivision is allowed three (3) building permits in the calendar year 2004 as stated in the Chichester Zoning Ordinances.”  He feels his subdivision falls under the 4-year exemption of adoption of the growth management ordinance.  This plan was recorded in the year 2000.  At that time the town had a dead end street restriction of 650’.  As a result of this I went before the Planning Board and showed them Phase I, which was a 2850 lineal foot dead end street, which exceeded the zoning and/or subdivision regulations of 650’.  In a consultation with them I showed them the plans and the purchasing of abutting property, Phase II, and showed them where the road would be extended through Phase II.  The Planning Board approved Malachy Glen, Phase I even though it exceeded the 650’ dead end street restriction.  He feels he was vested well before the board made the existing changes.

Subdivision has not been approved yet, this is just a conception, zoning changed, nothing has been done on this plan.

Mr. Mullaney feels an equity decision has been made.  He showed the Planning Board his plans, purchased more property and gave a $10,000 impact fee for both parcels of land, which he made clear was for both phases.  He understands the concerns of the town with the growth management.

Robert Gray asked if a contract of purchase is the same as owning the property and are these two separate applications for Phase I & II.  Can they both be considered?

An applicant can present proposed plans to a board as long as they have the current owners consent.  Phase I & II are two separate subdivisions.  Phase I is a completed subdivision and Phase II is a subdivision that has been presented to the Planning Board but does not have final approval.

The question arose as to when the Bailey property was purchased.  Statement was made that it was acquire in April of 2003 and is still its own lot with its own deed.


Members felt better clarification was needed as to the impact fees being given for both Phase I & II.  Did Planning Board circumvent zoning by allowing dead end road?  May have to get opinion from town council.
Is a concept vested?  Is a concept of a subdivision vested?  Board would like to see the minutes when Phase I was presented to the Planning Board and Phase II was also shown.  Did they waive the subdivision regulations or change them?  If there is mention of this in their minutes are we bound by the implication?  
Specific notes on the plats need to be obtained.  Board feels they don’t have enough information at this time to make a decision on this case this evening.  They would like to see copies of approved Malachy Glen Phase I subdivision, minutes of discussion, if any, certified letter from engineer and all records that the town has on these two developments.

Doug Hamel motioned to continue this hearing on Lots 77 & 67, Map 2 until more information is obtained.  Richard DeBold seconded.  Motion carried 5-0.

3).  Mr. Mullaney is asking for a variance pertaining to the growth management ordinance.  If his subdivision is not vested it presents a hardship to the property and would require a 6-year build out because of the limitations of permits.  It would affect current owners because of 7 years of continuous building.  He is asking the board to make a decision that he is vested.  If not vested than a variance is needed. He would like to do the same as he did with Phase I and get 8 building permits.  Also it is hard to get into line for a permit because of the requirement of needing completed house plans.  Each individual owner wants to design their own home.

The question of vesting can’t be answered tonight.

Mr. Gray stated that they were subject to 2 years of development with Phase I.  Structure of the school system has been greatly affected as well as other services.  Growth management was put into effect to circumvent this.  The town voted on the ordinance and they should be the one to change it not the BOA.

Mr. MacKinnon added there was considerable discussion of building 3 homes per year and selling only 5 lots per year at the Planning Board meetings.


Board needs to determine if Mr. Mullaney is vested or not.  If he is, we don’t need to hear this.  Building permits are not transferable; it is difficult to submit what the Building Inspector requires because each house is custom built so you can’t get in line for a permit.  It was asked why the Selectmen denied this request when Mr. Mullaney went before them.  It was felt that the Selectmen wanted this to come before the BOA  Board would like input from the Building Inspector pertaining to this variance.

Richard DeBold motioned to continue this public hearing until January 7, 2004 at 7:00 PM.  Ed Meehan seconded.  Motion carried 5-0.
Meeting adjourned at 10:30 PM.

Respectfully submitted,

Holly MacCleery, Secretary
Chichester Board of Adjustment

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