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July 28, 2004-BOA
JULY 28, 2004

Case #170, Joseph Austin, Map 3 Lot 68B requesting a VARIANCE for wells, foundation drains, grading and fire pond within the 100’ wetland setback.

Proposed project:  Over 55 association development.

Members Present:  Ed Meehan, Chairman; Stephen MacCleery, Ex-Offico; Mark McIntosh; Lou Barker; Ben Brown.  Alternates:  Jeff Jordan & Ben Daroska.

Applicant:  Joseph Austin
Abutters:  Tom Kenneally, Bruce & Claire Merrill, and Shirley Waters
Conservation Commission:  Bob Mann

Mr. Austin submitted 2 maps for the board to look at as well as some pamphlets.  After the BOA requested his variance for driveway access from Route 4 for this property on May 19, 2004 he went back to the Planning Board.  His perimeter drain and wells for his proposed project would fall within the wetland setback area.  The demo building is outside the wetland setback but the grading around it would not be.  A building permit cannot be obtained without perimeter drains.  Mr. Austin would like to grade and have the perimeter drains in the wetland-zoned area.  Mr. Austin states that the Planning Board would like the proposed well for the demo model put in an area that is within the wetland setback.  Zoning calls for a 75’ minimum from well to septic system, which will have to be a pumped system.  The house has to be so many feet back from the center of Route 4.  A septic system can be put within the state setback but not a structure.  The demo home will eventually be sold and need its own well and septic.  The fire pond needs to be engineered and he isn’t proposing that in his project tonight.  This would put him back 4 months with the Planning Board which he is going before for final approval on August 5th.  At this time Mr. Austin doesn’t want to invest the money for engineering the fire pond.  He wants to make sure the town really wants and needs a fire pond before proceeding.  The board did not feel comfortable considering a variance for a fire pond without seeing the actual location on the site plan.  If a variance is given for a pond, permits will be needed from DES.  They supposedly are in favor of the pond.  Putting in this pond will not disturb the marshland.

Mr. Austin said that it was the Planning Board who suggested the well for the demo home be placed closer to the house than originally planned which would encroach on the wetlands   He was not sure of their reasoning.  It could not be placed closer to the road on other side of home because of ledge.

A sump pump instead of perimeter drains was a suggestion by a board member since it would not encroach upon the wetlands.  Also placing the home on a slab without a full cellar would take care of the perimeter drain issue.  There was also a suggestion of moving the home closer to the private roadway for this project since nowhere in zoning does it state that the town has jurisdiction on private roads pertaining to the distance a house has to be from the road.  This would be of less impact to the wetland area and may move it away from the wetland buffer altogether, thus eliminating the need for a variance pertaining to grading and perimeter drains.


Ben Brown was of the opinion that the denial of this variance would not create a hardship to Mr. Austin and keep him from using his property.  A variance was just given to him to put in a driveway to his existing home.  He already has a reasonable use of this land.  Steve MacCleery agrees and is not convinced of a hardship here.

Mr. Austin stated that this property falls within the Com/Ind zone and he meets all the criteria for this project and several Planning Board members have said this is a good use of the land.  He feels he is impeded by the wetland setback.  As it is he is not allowed to get 2 homes that he is entitled to because of the wetland setback.  He feels since he owns commercial property he has the right to develop it.  Where the model will be placed is covered in pine trees and is not wet in the least.

Jeff Jordan stated that Mr. Austin is losing one house already because of the restriction.  This looks like a reasonable use of the property and there is a need for this type of project in town.  

Mark McIntosh brought up the issue of parking at the model home.  Mr. Austin said there would be a 30’ driveway and only 2 people at a time would be coming to look at the model.  

Ed Meehan felt that above the house it slopes up and drops off on the west side.  It is his opinion that a model home, encroaching on the wetlands, is not needed to make a go of this project.  He would like to see the well out of the buffer zone and that way they would be looking at a little bit of grading for a variance.

It was asked of Mr. Austin who would retain ownership of these homes.  He said that the association would own the land.  Each member of the association will own 1/17 if 17 homes are built.

At this time Lou Barker excuses himself from the proceedings due to illness.  Ed appointed Ben Daroska as a voting member in his absence.  


Mark McIntosh made a motion to discuss the criteria needed pertaining to a variance.  Steve MacCleery seconded.  Motion carried 5-0.

1.  There would not be a diminution in value of surrounding properties as a result of the granting of this variance because none of the four proposals would diminish surrounding properties – well, drains, grading & fire pond.  The pond would help surrounding area.  
2.  The granting of this variance would be contrary to the public interest because the wetland setback ordinance was put into affect to protect ground water and run off for the public interest.  Granting the variance, which impacts the buffer, violates the zoning therefore, is contrary to the public interest.  The life safety issue will impact police and fire department down the road although putting a pond in this buffer zone would be a benefit to the public.

Some members felt the public good more than out weighs the determent to the public as far as the pond is concerned.  This is minimal impact to the community.  No abutters were against this project.

3a.  What makes this property unique?  The proposed project is a reasonable use but is it the only use?  Since the zoning restriction as applied to the property does not interfere with the reasonable use of the property, considering the unique setting of the property in its environment such that 16 of the 17 proposed homes could be built without effecting wetlands.

3b.  A balance between public good v. private harm.  There is a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property because private harm would outweigh the public good.

3c.  The variance would not injure the public or private rights of others since this is not a nuisance given the use of the land.

4.  By granting this variance substantial justice would be done because of the larger loss of selling the model as a livable house.  His private gain would outweigh the public loss.

5.  The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because property is not completely restricted from other uses, and in a unique way.

According to the Planning Board this would not be contrary to the spirit of the ordinance.  Steve doesn’t believe it addresses the wetland issue.  If the PB is in favor of the well is it favor of the other issues.

A wetland variance was granted on the other side of Route 4 because the zoning made that piece of property useless.  The variance requested here are not the same circumstances.  Mr. Austin can still use the land for other things.  His project can still be done.  If the zoning was so strict that it couldn’t be used at all then yes, a variance should be granted.  It is not crucial to do all the things he wants to do.  He could still put 16 homes on this lot.  Does the whole project hinge on this one model?  A model can be put there and then removed and not sold as livable.  Certain areas in town are zoned commercial but not necessarily all of the property is usable.


Ben Brown motioned to deny application for a variance on Map 3 Lot 68B for a well, foundation drains and grading within the wetland setback.  Seconded by Steve MacCleery.  Reason for motion, because use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because it does not interfere with the reasonable use of the property.  Since the zoning restriction as applied to the property does not interfere with the reasonable use of the property the variance can be denied.  16 of the 17 proposed homes can be built and sold.


Jeff brought to the board’s attention that it had granted a variance to a piece of land that was short 15’ of frontage because it was the best use of the land.  This project is the best proposed use for this property.  The board should be physically looking at these properties and not just a site plan before making decisions.

Ben Brown motioned to postpone the above motion because the board feels they need further information before a vote can be taken.  Mark McIntosh seconded.  Motion carried 5-0.

Information needed:

1.  Can well be placed out of the wetland buffer zone?
2.  Can model home be placed closer to the private roadway, thus taking it further away from the wetland area?
3.  Possibility of retaining wall or some other way of disrupting less ground area around the house.

It was decided that the board would meet at Mr. Austin’s property, located on Route 4, at 6 PM on August 4, 2004 and then continuing public meeting at the Town Hall.

Meeting was adjourned at 9:50 PM until August 4, 2004 at 6 PM.

Respectfully submitted,

Holly MacCleery, Secretary
Chichester Board of Adjustment

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