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August 4, 2004-BOA

August 4, 2004

Joseph Austin, Map 3 Lot 68B requesting a VARIANCE for well, foundation drains, grading & fire pond within the 100’ wetland setback.

Meeting began at 6:10 PM at the applicant’s property located on Route 4 so the board could see exactly where the wetlands in question were located.

Members Present: Ed Meehan, Chairman; Stephen MacCleery; Mark McIntosh; Ben Brown.

Applicant: Joseph Austin and designer Web Stout

Abutters: Bruce Merrill

Discussion phase of the meeting was continued at the Town Hall at 6:55 PM with BOA member Ben Daroska and abutter Shirley Waters also in attendance.

Mr. Austin stated that the model homes can’t be moved closer to Route 4 but the well for this home could be outside of the wetland setback, thus eliminating the need for a variance for the well.  (At this time the applicant rescinded the requested variance for a well).  At the present time, the grading would run 15’ inside the wetland buffer.

A board member mentioned that our zoning has no jurisdiction as to the distance a home needs to be from a private (internal) road.  Perimeter drains are required but don’t have to go to light, a sump pump could be used.  House could go on a frost wall and not have a full foundation.  Frost wall eliminates the need for perimeter drains.  Also, drain could go under the road.

The BOA granted a variance on this property for a driveway to get to the applicant’s existing home on May 19, 2004.  There was a question as to why the driveway has yet to be put in.  The motion made by the board and the notice of decision clearly states that this was a variance for a “driveway” to his “home”.  This driveway is now being referred to as a roadway and the board wants it clarified that a variance was not given for a roadway.

Mr. Austin explained to the board that his brother-in-law said he would allow his property to be used as a right-of-way to his property until the Planning Board accepted his proposed project.

Steve MacCleery feels that at this time all avenues have not been pursued, Mr. Austin has other options open to him, and that a variance is not needed nor does he feel that the board has justification to grant the requested variance.

At this time Mr. Austin withdrew his application for a variance requesting a well, foundation drains and grading within the wetland buffer for his model home on Map 3 Lot 68B.

The variance for a fire pond is the only matter being considered this evening.  Mr. Austin sketched in the area on the enclosed plan (see file) where the pond is going to be located.

Ben Brown’s motion from the 7/28/04 meeting, to deny the variance request, was withdrawn.  Steve seconded the motion.  Motion carried.


Steve MacCleery motioned to grant a variance for a fire pond that would be beneficial to the town, to be located on Map 3 Lot 68B with access for fire trucks that would have the least amount of impact on the wetland buffer.  Mark McIntosh seconded.


It was asked who would maintain this pond and if dimensions and access needed to be addressed by this board.
Mr. Austin said he would maintain the area around the pond.  The association will not have ownership of this pond.  He will retain use of this pond and allow the town to use it in the event of a fire.  Turn a bouts would be needed.  The fire dept. and town engineer would be the ones to ask questions of if the board needed more clarifications on this.
Mr. Austin doesn’t want to spend a lot of money on this project if the engineer doesn’t feel it is feasible.


Vote was 5-0 in favor of motion to grant a fire pond on Map 3 Lot 68B.  Motion carried.

Reasons for granting the motion:
  There would not be a diminution in value of surrounding properties as a result of the granting of this variance because of the benefit for fire safety.
  The granting of this variance would not be contrary to the public interest because of the benefit for fire safety.
  Since the zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property in its environment such that it is a spot for a fire pond and drainage;
  Since there is not a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property because the public good out weighs the private harm.
  Since the variance would not injure the public or private rights of others since this would be a benefit to the safety of the community.
  By granting this variance substantial justice would be done because the interest of the town and surrounding area would be served by the fire pond.
  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance because of public safety.

Respectfully submitted,

Holly MacCleery, Secretary
Chichester Board of Adjustment

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