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December 29 2004 BOA Minutes
CHICHESTER BOARD OF ADJUSTMENT MINUTES
DECEMBER 29, 2004

This is a continuance from the previous public meetings of 12/8/04 & 12/15/04 for Mr. James Mullaney seeking a VARIANCE to the wetland ordinance.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; Jeff Jordan, Mark McIntosh; Ben Brown; Diana Calder.

Voting:  Ed Meehan; Stephen MacCleery; Jeff Jordan; Mark McIntosh; Ben Brown.

Applicant:  James Mullaney
Council:  Friedrich Moeckel

Mr. Moeckel presented the board with documentation that supported their request for a variance to the wetland ordinance which included Planning Board minutes, decisions etc. (see file).  The colored map of the subdivision for Map 2 Lots 67 & 77 was again presented to the board which shows the wetland areas on each lot.  (Mr. Mullaney will submit a copy of this map for our records).

The board was asked to use reasonableness in their decision this evening pertaining to this project.  This area is 59 acres and is an 18 lot subdivision zoned residential with only houses being built here.  It was stated that the Planning Board thought this was reasonable because they approved it.  Mr. Mullaney’s original plan exits out on Rte. 4.  Plans were shown to the Planning Board dated 11/12/02.  He said the Planning Board approved his subdivision with a dead-end street distance beyond what the town allowed.  Subsequently, zoning changed with the growth management and dead-end street distance.  He submitted four separate conceptual plans as requested by the Planning Board.  He states that the Planning Board told him he was vested because they accepted a $10,000 check for engineering purposes before the posting of the wetland ordinance change.  Time sensitive documents were not dated from the Planning Board.  Mr. Mullaney stated that he was not here to get vested.  $10,000 is a lot of money for him to put out for a subdivision to be reviewed by the town engineer that is supposedly illegal.  The Planning Board never told him that he needed to seek a variance for this subdivision.  The wetland ordinance and vesting affects everyone.  Vesting starts with the beginning of the subdivision and then goes for only 4 years after the plat is approved.

Mr. Mullaney and his wetland scientist met with the Conservation Commission and were willing to give the town a conservation easement.  They wanted $100,000 to purchase another piece of property instead.  He has put a 35’ conservation buffer on his lots.  Mr. Mullaney is requesting a variance for a road to his subdivision and on some individual lots.  All the lots are buildable, some would have common driveways and others the houses would have to be turned perpendicular to the street.  He is just asking for reasonable discretion.

It was asked who chose the location of the lots and the layout of the road of which Mr. Mullaney responded his surveyor.  It was also mentioned that the town engineer has reviewed this plan and has okayed it.

BOARD DISCUSSION ON THE ROAD VARIANCE

It was determined that this is an area variance that is being requested.  The intent of the ordinance was again discussed.  Was ground water going to be hurt by granting this variance?

Ben’s general opinion was that the town agreed on the 100’ setback on all wetland, any building in that area would harm wetland.  Another opinion is that the Conservation Commission said this was of no value and didn’t want a wetland easement.

Diana added there were some tests done that said chaotic wetlands would still serve the same purpose as the wetlands.

Ed stated that most areas the board has dealt with was access.  He assumes when going over wetlands you tend to disturb them as little as possible.  Doesn’t see a problem with a variance for the road for this subdivision.

Steve asked if a variance were granted could the board stipulate the use of salt restriction.

Ed understood what he was getting at but the salt issue affects the whole town.

Jeff feels that this is a low impact wetland area and the board needs to use reasonableness.  Doesn’t think the spirit of the ordinance is to be so restrictive.  According to the acceptance letter and the check that was taken, the Planning Board gave their okay for this project.  As to the salt issue, there are restricted salt areas all over the state.

Mr. Mullaney responded to a comment about DES approval and said that it was impossible to get state approval within 90 days because they are so backed up from employees resigning and being short staffed.

Steve feels that the notice of decision from the Planning Board is a conditional approval.  The plan is not signed and therefore is not an approved subdivision.  

Mark approves of the project and the road.  The engineer has gone over this and has okayed it.  This would at least get him started.

Ben wanted to remind the board that the things that happen at the Planning Board have nothing to do with what we are doing here tonight.  We’re looking at this regardless of litigation.  We’re looking at this project as submitted by the map.  Testimony has been given that the wetlands are of little value.  The impact the road will have is going to be minimal.  

MOTION

Ben Brown made the motion to grant a variance for the proposed road of Map 2 Lots 67 & 77 (otherwise known as Malachy Glen Phase II) as submitted by Mr. James Mullaney for the following reasons:
1.  There would not be a diminution in value of surrounding properties as a result of the granting of this variance because the proposed road would have minimal impact on the wetlands and wetland buffers and this is a conforming use which was approved by the Planning Board.
2.  The granting of this variance would not be contrary to the public interest because of the low value of the wetlands as mentioned in the testimony of the discussion with the Conservation Commission and the wetland scientist’ opinion.
3. (B)(1) An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property because the road will have minimal affect on the low impact wetlands.
   (B)(2)  The applicant cannot achieve by some other method reasonably feasible, other than an area variance because the location of these roads have been chosen as the best location by the town engineer.
4.  By granting this variance substantial justice would be done because it provides access to a subdivision approved by the Planning Board that would otherwise be inaccessible and it would increase the land value and the accessibility to property for future use or usage.
5.  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance because this is a low impact wetland area.

Motion was seconded by Jeff Jordan.  

DISCUSSION ON THE MOTION

Jeff agrees that the board should mention something about the salt usage.

Mr. Moeckel stated that the wetland scientist’s letter speaks to this issue of salt and wetlands.  No buffer will ever protect salt from water.  Doesn’t know that a condition would do any good.

It was felt that discussions from this meeting should generate a letter to the Selectmen about limiting salt usage on the roads to protect the town’s drinking water.

VOTE

5-0 in favor of the motion.  Motion carried.

INDIVIDUAL LOT VARIANCES

Mr. Mullaney is requesting a variance on the following lots for the following reasons:
Lot 77-5 relief of 50’ for a lawn
Lot 77-6 50’ for building and lawn, will keep the septic away from the wetland
Lot 77-11 limited access, access NW portion of this lot for a driveway
Lot 77-12, 77-13, 77-14 for a lawn
Lot 77-15 limited access and lawn
Lot 77-16 for a lawn
Mr. Mullaney stated that this variance would give the people the use of their yard.  They can’t use it all but will have a country feel to what they can use.  A conservation buffer is written into the deed restrictions.  Mr. Mullaney read to the board what the restrictions say (map will be on file when submitted by Mr. Mullaney).  The definition of “lawn” is landscaping, swing set etc.

Steve feels that a patio is different from a lawn.

Mr. Mullaney added that the land has already been changed.  The damage has already been done.  Let them have a swimming pool.  If you give us 50’ and say no well or septic in that area, fine.  The terrain has already been changed.

Jeff asked Mr. Mullaney if he volunteered this conservation easement.

Mr. Mullaney responded yes.  You can do everything except a septic system within 50’ of the wetland.

Diana felt that referring to this as a “lawn” was not sufficient.  It should be considered as landscape.

Mr. Mullaney stated that septics will not interfere with the wetlands.  He is asking the board to use reasonableness.  This is sloppy runoff land with fingers of drainage.

Mr. Moeckel added that what makes a lawn is landscape.  90% of the contaminates are being taken care as the land sits.  The 35’ easement is written into the deed restrictions.

BOARD DISCUSSION

Mark-lawn area should be defined as landscaping, shrubs, grass, flower beds, fencing, and monuments.  Landscaping should be permeable.  Walkways and patios should be on a permeable surface.

Steve-comment has been made that all these lots are buildable as is.  Whether the houses are pretty on the lots or not is not our concern.  Some of the lot lines could be reconfigured.  They may not be the prettiest lots but they are all buildable.
Mr. Mullaney-you can’t be forced to go back to the Planning Board.

Mr. Moeckel-this is the same situation as the road issue.  The Planning Board approved this.  This is the most reasonable use of this property.  We are putting in landscaping.  Evaluate the merits.  We have already studied moving the lines and it is not feasible.  They approved an 18 lot subdivision.

Landscaping variance would be for lots 77-5, 77-12, 77-13, 77-14, 77-15 & 77-16. (6 lots)

Diana feels that you can’t have a $400,000 house without landscaping.

Ed doesn’t have a problem as long as “lawn” is defined.

This variance request is also an area variance.

MOTION

Mark McIntosh motioned to grant an area variance to lots 77-5, 77-6, 77-12, 77-13, 77-14, 77-15 & 77-16 on Malachy Glen Phase II subdivision within 50’ to 100’ of the wetlands with landscaping defined as permeable including lawn, shrub, trees, grass, flower beds, gardens, fencing & monuments for the following reasons:
1.  There would not be a diminution in value of surrounding properties as a result of the granting of this variance because landscaping typically increases the value of property.
2.  The granting of this variance would not be contrary to the public interest because landscaping will not have an impact on the wetlands.
3. (B)(1)  An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property because the landscaping will have minimal affect on the low impact wetlands.
   (B)(2)  The benefit sought by the applicant cannot be achieved by some other method reasonably feasible, other than an area variance because adjustment of lot lines or loss of a lot would not be feasible for the applicant.
4.  By granting this variance substantial justice would be done because the landscaping will increase the value, the Planning Board approved the subdivision and didn’t intend the lots not to have lawns.
5.  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance because the landscape would have minimal impact on the low impact wetlands.
Ed Meehan seconded the motion.

DISCUSSION ON THE MOTION

Steve-they are talking about landscaping and high end houses.  The value of the lot may not be as high without the landscape.  You could use a lot or 2 and increase the value of the other lots because you could then build and landscape without a variance.  I don’t believe a variance should be granted for landscaping.

Ben-the approach of moving lines would eliminate more than 2 lots and that isn’t feasible to the applicant.

Ed-would you really increase the value of the lots by rearranging them?

Diana-go back to the fact that the Planning Board approved this and didn’t intend for these people not to have a lawn.

Steve motioned to go into executive session under RSA 91-A:3P.2, Sub P.E.  Motion was seconded.  Members were polled.
Ben-yes
Mark-yes
Jeff-yes
Ed-yes
Steve-yes
Board went into executive session and the room was cleared.

Motion was made and seconded to resume public meeting with no decisions being made while in executive session.

VOTE ON MOTION TO GRANT AREA VARIANCE FOR LANDSCAPE
In favor-Ben Brown, Mark McIntosh, Jeff Jordan, Ed Meehan (4)
Opposed-Steve MacCleery (1)

Motion carried 4-1.





LOT 77-11 50’ SETBACK FOR DRIVEWAY ACCESS

Mr. Mullaney suggested putting in a 9” earth burm.  A very marginal house can be built on this lot as it sits now.  He doesn’t want to see a perpendicular home on this lot.

Diana doesn’t see a hardship to having a shared driveway.  It is not uncommon and doesn’t see it having a significant difference on resale value.

Mr. Mullaney stated that there are limited cuts on state highways.  There is a drainage ditch in this area as well.  This is a high end subdivision.  Doesn’t want to have a shared driveway.

Ed stated we can’t demand that he move a lot line but doesn’t see a problem with a common driveway but it should have the least setback.

Steve suggested you could limit the width of the driveway to a maximum of 12’ wide and 0’ from the property line.

MOTION

Ben Brown motioned to grant an area variance on Lot 77-11 for the traveled surface of a driveway to be within 12’ of Lot 77-12 through the wetland buffer for the following reasons:
1.  There would not be a diminution in value of surrounding properties as a result of the granting of this variance because having a driveway would not diminish the surrounding property values.
2.  The granting of this variance would not be contrary to the public interest because it would not have a significant affect on the low impact wetlands.
3. (B)(1)  An area variance is needed to enable the applicant’s proposed use of the property in order to provide access to the property.
   (B)(2)  The benefit sought by the applicant cannot be achieved by some other method reasonably feasible because adjusting lot lines is not feasible to the applicant.
4.  By granting this variance substantial justice would be done because it allows access to a lot approved by the Planning Board.
5.  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance because it would have minimal impact on the low impact wetlands.
Mark McIntosh seconded the motion.
VOTE

In favor-Ben Brown, Mark McIntosh, Jeff Jordan, Ed Meehan (4)
Opposed-Steve MacCleery (1)
Motion carried 4-1.

Because of the lateness of the hour it was suggested that the board recess before considering the building variance request for Lot 77-6.
In favor-2
Opposed-4
Board will take a 10 minute break and resume.

LOT 77-6 VARIANCE FOR A BUILDING

Ben did not feel that there would be any diminution in property values if this variance were granted.  It would have limited affect on the low impact wetlands.

Diana feels that granting the variance would allow this lot to be developed homogeneously with the rest of the subdivision.

Steve disagrees with the limited affect on the wetlands.  We have allowed a variance for landscaping but a structure is a different story within the buffer.  A structure has greater impact.  

Diana felt that the building doesn’t need to be put in the buffer zone.

Steve stated that the board could give a variance to the 15’ setback from the sidelines so the house could be closer.

Ed suggested turning the house so it didn’t face the road.  Not all the homes are going to look the same.

There are no regulations saying which way you should position your home.

Mr. Mullaney would like to keep this subdivision traditional and not reposition the home.  He would like to keep the subdivision homogenous.

Mr. Moeckel suggested putting in a burm.

Ed stated that the petitioner himself has said that these are all buildable lots.  If that is the case granting the variance would be contrary to the spirit of the zoning.

MOTION

Ben Brown moved to grant a 20’ variance on lot 77-6 for a building which will include at least a 6” burm between the house and the conservation buffer for the following reasons:
1.  There would not be a diminution in value of surrounding properties as a result of the granting of this variance because granting the variance would allow this lot to be developed homogenously with the rest of the subdivision.
2.  The granting of this variance would not be contrary to the public interest because of the limited affect on the low impact wetlands.
3. (B)(1)  An area variance would be needed to put a structure that is complimentary to the subdivision.
   (B)(2)  The highest and best use being sought by the applicant is to improve the lot with a dwelling that is of similar size and style of the subdivision.
4.  By granting this variance substantial justice would be done by allowing a homogeneous structure on this lot.
5.  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance because granting a 20’ variance would allow them to build a homogeneous structure that would not be contrary to the spirit of the ordinance.
Mark McIntosh seconded the motion.

VOTE
In favor-Ben Brown, Mark McIntosh (2)
Opposed-Jeff Jordan, Ed Meehan, Steve MacCleery (3)

Motion denied.

Meeting was adjourned at 12 midnight.

Respectfully submitted,


Holly MacCleery, Secretary
Chichester Board of Adjustment














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