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January 7, 2004 - BOA
CHICHESTER BOARD OF ADJUSTMENT MINUTES
JANUARY 7, 2004

Continuance from the 12/17/03 Public Hearing of James Mullaney Map 2 Lots 67 & 77.
Per the board’s request from previous meeting, received from applicant via mail the following:  Land Surveying Plan dated 7/1/99, Conceptual Road Layout involving the Fife & Mobbs property; letter from F. Webster Stout stating this conceptual plan for Malachy Glen-Phase II was created in 1999 and presented to the Planning Board in 1999 with the application for Malachy Glen-Phase I; application for subdivision for Lot 78 of Map 2 signed and dated by James Mullaney on 10/5/02; sales agreement & deposit receipt from Donald & Martha Fife dated 2/3/99; copy of $10,000 check made to Town of Chichester dated 11/12/02 for engineering escrow.

Members Present-Steve MacCleery, Chairman; Richard DeBold; Doug Hamel; Louis Barker; Ben Daroska; and Ed Meehan.
Applicant-James Mullaney
Abutters-Ewen MacKinnon, Robert Gray.
Planning Board-Tracy Scott, Andrea Deachman.

Meeting was called to order at 7:10 PM.

This meeting is a continuance of the BOA’s board discussion of 12/17/03.  They felt they needed more information from the applicant as well as the Planning Board before they could make a decision.

The board has been told by Mr. Mullaney that Malachy Glen-Phase II was presented to the Planning Board at the same time as Phase I so he shouldn’t be subject to the current zoning and wetland setbacks that were enacted at the March 2003 town meeting.

The Bailey lot, Map 2 Lot 77, is still its own lot with its own deed.  There is no signed subdivision plat for this piece of property.

The first notice of hearings was posted on 10/31/02 for the beginning of the wetland discussion.  

The Planning Board states that final approval of a subdivision is needed prior to any zoning changes.  Phase II was in discussion phase for several months.  These were strictly discussion meetings.  They feel there is no vested interest.  Phase II & III of this project were mentioned only as preliminary discussions.

Mr. Mullaney feels that when an application is under consideration you have a 4-year exemption period.  He said Phase I couldn’t be built without Phase II.  The Bailey lot should be considered because it is a modification of the same development.

Minutes from the Planning Board 11/7/02 meeting, pertaining to Map 2 Lot 78, Dexter Shoe,under discussion not design review, “the board requests written documentation from the State of NH Dept. of Transportation stating this area of highway is an acceptable entrance/exit onto Rt. 4/202/9.”  It was not the board’s decision to say that they could not go out onto Rt. 4; they wanted something from the Dept. of Transportation stating that this was a safe entrance/exit.  Planning Board never received letter from DOT.

Mr. Mullaney stated that getting a letter from the State would be a duplicated of the application process.

The Planning Board explained that it can take up to 3 months for a subdivision to be accepted and signed.  The application is filed, abutters are notified, questions are asked, changes are made, and missing things are added before final approval and signature of the plat.  Mr. Mullaney showed the board Phase I, II & III.  All he developed was Phase I.  He didn’t own the property for Phase II & III at the time.  Mr. Mullaney started talking about Phase II 1 month before zoning was being changed.  He was well aware that he would be subject to all zoning changes.

Planning Board time line:
Nov. 7, 2002 changes to wetland public hearing
Jan. 2, 2003 wetland changes were approved to be put on ballot for March 2003 Town Meeting
Mar. 6, 2003 Mr. Mullaney didn’t attend Planning Board meeting, no action taken
Apr. 3, 2003 discussion phase on Connemara Drive/Bailey Road lots 67 & 77
Apr. 18, 2003 abutters notified about May meeting
May 1, 2003 design review of lots 67 & 77
May 24, 2003 notice to abutters about June public hearing
June 5, 2003 didn’t have all the information he needed for town engineer
July 10, 2003 public hearing continued, tax map shows more wetland than his plan
Aug 7, 2003 public hearing continued

At this time the BOA was satisfied that they had enough information to make their decisions and motions.

Map 2 Lot 67 appealing the administrative decision of the Building Inspector-no vesting from growth management ordinance.
MOTION – Richard DeBold motioned to deny the appeal of the Building Inspector’s decision regarding Art. III-General Provisions, L. Growth Management Ordinance, Section II 1. c.  Building Inspector correctly interpreted growth management ordinance as applicable to Malachy Glen Phase II.  Ed Meehan seconded.  Vote was 5-0.  Motion carried.

Map 2 Lot 77 appealing the administrative decision of the Building Inspector-no vesting from growth management ordinance.
MOTION-Richard DeBold motioned to deny the appeal of the Building Inspector’s decision regarding Art. III-General Provisions, L. Growth Management Ordinance, Section II 1.c.  Building Inspector correctly interpreted growth management ordinance as applicable to Malachy Glen Phase II.  Lou Barker seconded.  Vote was 5-0.  Motion carried.

Map 2 Lot 67 requesting a variance from Art. III, Section II, L to permit more than 3 lots per year to be eligible for building permits, completed application not to include driveway permit, septic design, building plans as it refers to first come first serve.  (The board feels they can only vote on the 3 lots per year, as the other requirements are procedural and not part of the zoning regulations.)
Work Sheet:  Statement of Reasons
1.      Property values are not going to be impacted.  Construction schedules do not have permanent, long lasting affects.
2.      Granting this variance would be contrary to the public interest because ordinance was enacted to limit and manage growth.
3.      a.  The zoning restriction as applied to the property does not interfere with the reasonable use of the property because the board feels the applicant was aware of the restrictions of the growth ordinance at the time of his application for Phase II.
b. There is a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property because the restriction on the property is necessary in order to give full effect to the purpose of the ordinance.
c.      The variance would not injure the public or private right of others since the values of surrounding property would not be affected.
4.      In the opinion of the board there is no injustice done to the applicant in the denial                 of the variance due to the fact that all subdivision applicants are treated equally and the applicant was cognizant of the current zoning at the time of his application.
5.      The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because it would be opposite to the intention of the Townspeople through their adoption of the current Growth Management Ordinance and the guidelines as established by the Town Master Plan.

MOTION- Lou Barker motioned to deny the request for a variance to Map 2 Lot 67 on the basis of the above stated reasons.  Ed Meehan seconded.  Vote was 5-0.  Motion carried.

  
Map 2 Lot 77 requesting a variance from Art. III, Section II, L to permit more than 3 lots per year to be eligible for building permits, completed application not to include driveway permit, septic design, building plans as it refers to first come first serve.  (The board feels they can only vote on the 3 lots per year, as the other requirements are procedural and not part of the zoning regulations.)
Work Sheet:  Statement of Reasons
1.      Property values are not going to be impacted.  Construction schedules do not have
permanent, long lasting affects.
2.      Granting this variance would be contrary to the public interest because ordinance was enacted to limit and manage growth.
3.      a.  The zoning restriction as applied to the property does not interfere with the reasonable use of the property because the board feels the applicant was aware of the restrictions of the growth ordinance at the time of his application for Phase II.
b. There is a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property because the restriction on the property is necessary in order to give full effect to the purpose of the ordinance.
d.      The variance would not injure the public or private right of others since the values of surrounding property would not be affected.
4.      In the opinion of the board there is no injustice done to the applicant in the denial                 of the variance due to the fact that all subdivision applicants are treated equally and the applicant was cognizant of the current zoning at the time of his application.
5.      The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because it would be opposite to the intention of the Townspeople through their adoption of the current Growth Management Ordinance and the guidelines as established by the Town Master Plan.

MOTION- Lou Barker motioned to deny the request for a variance to Map 2 Lot 77 on the basis of the above stated reasons.  Doug Hamel seconded.  Vote was 5-0.  Motion carried.

Map 2 Lot 67 administrative appeal to lack of vesting to wetland setbacks.  
Board feels Phase I has nothing to do with Phase II.  This parcel is subject to the new zoning ordinance regarding the 100’ setback from wetlands.  First notice for wetland proposal was posted on 10/31/02.  Planning Board accepted subdivision application and design review on May 1, 2003.

MOTION-Richard DeBold motioned to deny the appeal of administrative decision by the Planning Board pertaining to the wetland setback.  Doug Hamel seconded.  Vote 5-0.  Motion carried.

Map 2 Lot 77 administrative appeal to lack of vesting to wetland setbacks.
Board feels Phase I has nothing to do with Phase II.  This parcel is subject to the new zoning ordinance regarding the 100’ setback from wetlands.  First notice for wetland proposal was posted on 10/31/02.  Planning Board accepted subdivision application and design review on May 1, 2003.

MOTION-Lou Barker motioned to deny the appeal of administrative decision by the Planning Board pertaining to the wetland setback.  Ben Daroska seconded.  Vote 5-0.  Motion carried.

Meeting adjourned at 10:30 PM.

Respectfully submitted,



Holly MacCleery, Secretary
Chichester Board of Adjustment

Minutes posted on 1/12/04.


  



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