BOARD OF ADJUSTMENT MINUTES
MAY 19, 2004
Members Present: Edward Meehan, Chairman; Ben Brown, Diana Calder, Ben Daroska,
Mark McIntosh, Stephen MacCleery.
Voting: Edward Meehan, Ben Brown, Diana Calder, Mark McIntosh, and Steve MacCleery.
Abutters: Joseph Austin-applicant, Arthur & Barbara Abbott, Bruce & Claire Merrill, James & Laura Rogers, Shirley Waters.
Case # 169, Map 3 Lot 68B, applicant Joseph Austin requesting a variance to article III, section P/c. wetlands, of the zoning ordinance to permit access road with associated drainage, together with the placement of wells and foundation drains within the 100’ wetland buffer zone.
Mr. Austin states that the wetlands run across his property and if a variance is not granted he will not have access to his property. The current contract for a right-of-way with his brother-in-law has expired. The house that is on this property now was built years ago. If the wetland setback had stayed at the 50’ mark, a variance would still be needed. According to the town specifications, a road can go on this property. Mr. Austin further mentioned that Bob Mann, member of the Conservation Commission, went to this site and feels that the variance would be a minimal impact. The zoning ordinance wasn’t intended to keep people from getting onto their property. According to Mr. Austin the State of NH has told him that this is a “minor” incidence and shouldn’t be a problem. Mr. Austin did not produce a letter from the state supporting this statement.
In July of 2001 Mr. Austin closed on the existing log home on this property. He had 2 years to start the driveway access before the contract expired in April 2004. He didn’t anticipate that the wetlands would be an issue.
Arthur Abbott, abutter, stated he didn’t know that the proposed project of an elderly development was in the works. He doesn’t want his property being used any longer for access to this abutting property. Even if Mr. Austin offered to purchase a right-of-way, he would not be interested in selling.
The BOA members felt that driveway access is different than building a road. Hardship is not having access to his present home, not a hardship for future roads and development.
Mr. Austin plans to get on the building permit list in March. His proposed development is for persons 50 years and older. This ordinance is very restrictive to land owners. The Planning Board has no other alternative but to send applicants to the BOA because of the new wetland setbacks. Right now this property is being used as residential even though it is in the commercial zone. The existing house is about 1000’ from Route 4.
Bruce Merrill-abutter, is concerned as a Volunteer Fire Department member about getting to alarms off of Trap Road because of the amount of traffic now. If another driveway access is added to Route 4 it is going to compound the problem.
Laura Rogers-abutter, wanted to know if the board was looking at this as just a driveway for access to his home or for the proposed project. They have property on Route 4 and are subject to the zoning changes just like anyone else. Just because you own property doesn’t give you the right to develop it.
The board feels, at this time, that everything is on the table pertaining to the application. The house has been there for quite a while. Some members feel it is more difficult to prove a hardship for wells and drainage rather than access to the existing home.
Mr. Austin used to own the property to get to his house. His brother-in-law bought it and now no longer wants to allow him to use it to get to his property. Current deed to property denies access to existing house.
The board was given copies of the Conservation Commission letter from Robert Mann, Driveway Permit from the State of NH Dept. of Transportation, letter signed by Arthur Abbott stating he no longer wishes to have his property used as a right-of-way to Map 3, Lot 68B and a letter of agreement by both parties agreeing that access would be obtained from Route 4 commencing as of April 1, 2001/April 1, 2003.
It was discussed that a driveway needs to be given to the residence, but that is all. The board understands what Mr. Austin is trying to do. If a driveway is put in and he wants to go forward to the Planning Board with his proposed project that is his right. Some felt that because of the length and expense of the driveway it would make sense to put the driveway in as a potential road. There are different specs for roads than there are for driveways.
Mr. Austin was allowed to comment that if a basic driveway were put in a retention pond would have to be put in also. This driveway can’t have runoff going into the wetland. This is going to cost about $180,000. The driveway will be better than a 1000’.
The board was uncertain if there is a minimum as to the length and width of a driveway. Maybe it would be better to consider if there is a maximum length. Would a driveway of this magnitude be considered beyond a residential driveway? The issue is the crossing of the wetland area. The hardship is for the use of the driveway to the house. Would it be less impact to wetlands by putting this access in once? It is not up to the BOA to give specs for this driveway. We can limit the usage of this road but not the specs of it. If he wants to spend $180,000 on this, it’s his money. It was again stated that the hardship is for access to his house. He is receiving a commercial exemption because he is using this piece of property as residential. The board
understands that some modification to the wetland zoning is going to be made in the future but they need to deal with the zoning as it is today.
Route 4 has been zoned Commercial to keep commercial uses in that area. It is a very busy and dangerous highway and the state will eventually have to address that issue. Mr. Austin has driveway access permission and needs to access his property from Route 4. Board feels that allowing a variance for a driveway to his existing home is fine. If he wants to add access off of the driveway it would be considered more than just a driveway.
Ben Brown motioned to change the wording on the application to read, “A variance is requested from article III, section P/c. wetlands, of the zoning ordinance to permit a driveway with associated drainage.” Steve MacCleery seconded the motion. Motion was agreeable with applicant Joseph Austin. Vote was 5-0 in favor. Motion carried.
Ben Brown moved to grant the motion for a variance of the amended application because all 5 criteria have been met as addressed in the application with the following changes:
Question 3. a. The word “property” was changed to “home”.
Question 3. b. The first instance of “property” was changed to “home”.
Question 5. The last instance of “property” was changed to “home”.
Diana Calder seconded the motion. Vote was 5-0 in favor. Motion carried.
Holly MacCleery, Secretary
Chichester Board of Adjustment