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BOA Minutes April 6, 2005
APRIL 6, 2005

MEMBERS PRESENT:  Edward Meehan, Chairman; Mark McIntosh; Jeffrey Jordan; Stephen MacCleery, ex-offico.
Jeffrey Jordan was sworn in by Selectman Stephen MacCleery before the public hearing.

APPLICANT:  Robert A. & Kathleen R. Gagne
ABUTTERS:  Robert Gagne, Jr., Richard & Dorothy Mackin, David & Mary Dobson,
PUBLIC:  David Noyes, Samuel Moore, Sr., Maribeth Moore, David Colbert

The Gagne’s are seeking an area variance to Article II, Section D-RA, and Section P-wetlands for a lot line adjustment to Map 7, Lot 12.

Surveyor David Noyes presented a plan of the lot line adjustment to the board.  (See file)  The Gagne’s were at the Feb. 6th Planning Board meeting and were denied.  They propose to create a new boundary line which would create a 5.62 acre lot with the house that has been there since 1977, a piece of backland that is steep and forest land and keep a right-of-way to get to that.   They would like to keep the backland as a woodlot.  When presented to the Planning Board they denied it on the basis that there are some wetlands that fall on intermittent stream.  The PB position is there can’t be any more than 10% wetlands in a 5 acre lot.  Mr. Noyes does not feel that is what the ordinance says.  The ordinance states what the zones are and is defined by soil types.  This is referred to by a 1965 map showing all the soils in the town of Chichester.  The zoning map shows no poorly drained soils on this lot.  In 1977 the septic system was designed and approved for construction and operation.  The Gagne’s hired Audra Klumb, NH Certified Wetland Scientist, to come out and look at the site and here letter states that if the septic system that is there now should fail, there is plenty of room on the lot to construct another system.  (Letter on file)  She also states that adding additional land to the 5+ acre proposed lot would not improve the functionality to the portion where the house sits.  It would be of no benefit to the lot.  According to the soils map, most of the 46 acres described as backland, is steep slope.  The average grade from the top of the hill is 22%.
Wetlands are discussed in Article III, Section P-d. of the zoning ordinance which states “any site plan or subdivision plan containing wetlands in the Chichester Zoning Ordinances, Section C Zoning Map, must show wetland areas determined by a Certified Soil Scientist or Certified Wetlands Scientist.”  If you look at e. Preexisting Uses, they are exempt from this ordinance.  However, they may not be expanded, altered or changed without a Special Exception provided by the BOA.  This exempts the requirement of a wetland scientist.
In seeking a variance several criteria must be met.  The surrounding property values will not be diminished because one lot will be 5+ acres and another 46 acres.  Does not feel this would hurt the town since the 46 acre lot would have no use but to remain vacant.  Substantial justice would be done by granting the variance lot 12 will stand by itself on the basis of the state water, supply and pollution control and function as a residential lot.  Granting would not be contrary to the ordinance because the health and welfare of the town’s people will not be hurt.  The inhabitants will not be affected, no new building lots will be created and will not add any crowding to the area.  Water and sewerage has already been approved.  The backland is being kept for their own recreation and firewood.  Denying the request would be an unnecessary hardship because of the special conditions of the property which is the strip of wetlands that follows an intermittent stream and is seasonably wet, does diagonally go across the property and the backland is very steep.  Applying Art. III P-wetlands are not going to make the lot any better.  It will not improve the functionality of the lot.  
The wetlands were drawn on the plan from a 1977 plan of the property when it was subdivided.  Mr. Noyes applied the same wet area to the drawing.  1.31 acres is designated wetland.  1.3 acres is high and dry.  The total buildable acres on this lot are 4.59.

Steve-Would there be a problem moving the line enough to give you 90% of the 5 acres?
Robert A Gagne-Part of the lot would be getting into the district that is OSS which is not residential.
Steve-This 5 acres isn’t residential.  If it has to be a 5 acre lot it needs to be RA.
Mr. Noyes-According to the map that has been set as the standard there is 5.26 acres that is not poorly drained.
Steve-If we look on the tap maps, I was assuming this was RA soils which would need 5 acres and 300’, by the zoning we need 90% of 5 acres buildable soil.
Mr. Noyes-I feel it is not a classification.  District RA states up to 10% of the minimum 5 acre residential lot may contain soil cot classified RA or R.  According to the map, all the soils on the front part of this lot are poorly drained.
Steve-This is RA soils?
Mr. Noyes-Yes.
Steve-Why couldn’t this boundary be moved just enough to give you enough buildable soils rather than coming for a variance?
Mr. Noyes-Even doing that the PB would not accept the plan.  They have said that.  The last meeting we were at the question was asked and they said they would not consider anything else unless there was a soil scientist stamp on the plan.
Steve-What variance are you asking for, having a soil scientist stamp on the plan or the 90% rule?
Robert A. Gagne-Both.
Steve-An area variance would have to do with the size of the builable portion of the lot.  The soil scientist stamp is another issue.
Robert W. Gagne-Right off the back border of that land, probably another 100’, there is a drainage finger that comes down from that steep slope.  It comes down steep, has a little plateau and is a gradual slant down into the wetland.  The PB, when we came up with 1.5 acres of wetlands, said we would need 15 acres to off set the 1.5 acres.  That is the way the PB was reading it.
Steve-I believe a member of the Selectmen has discussed this with the PB since that time.  The way the zoning is written you need 90% of the 5 acres soils.  There may have been some miscommunication.
Robert W.-When Mr. Noyes used an example of a 100 acre building lot with a 20 acre swamp in the back corner, if someone wanted to subdivide into 2-50 acre lots with a 10 acre swamp on each lot they said it would not get approved as a building lot .  It would be considered a substandard lot.
Steve-I don’t know how that interpretation could have come about.
Dave Colbert-When I sat on the PB we always went with the 5 acre rule, 90% of the 5 acre lot needed to be dry or 90% of the 2 acre lot had to be dry.
Steve-You can come up with that in different places.  4.5 acres is 90% of a 5 acre lot.  They are okay on buildable soils.
Mr. Noyes-There is no soil scientist stamp on this guaranteeing they are buildable.  The PB will not approve this without it.  I and several others feel it is ridiculous to ask for it when it is not going to increase the functionality of the lot.
Steve-From what is presented to the BOA this is a buildable lot, they just don’t have a soil scientist stamp stating that.  Is that correct?  If there is enough buildable soil in this lot there is no reason to come before the BOA for a variance on the buildable soil.  It is a variance to  the wetland delineation of a soil scientist that you are looking for?
Dave Colbert-You are going on the opposite side of the wetlands to pick up a portion of the buildable soils.  You have a 5.6 acre lot which meets the minimum standards and you are looking for a variance to say you don’t want to add any more land on the opposite side on the wetlands that will not make this property any more usable.  You are 2/10th of an acre from being at a standard 90% dry lot.
Mr. Noyes- The PB has made it clear that they will not approve this if a soil scientist stamp is not on this.  Their last comment was we would need to go before the BOA.
Jeff-The water on here looks seasonal anyway.
Dave-When we looked at this as the Board of Selectmen I think they were 2/10th of an acre short of being a buildable lot.  If they could go to the center of the road you could pick up that 2/10th of an acre.
Mr. Noyes-The standard of practice is to stop at the stone wall.  The Gagne’s technically have ownership to the center of the road.
Steve-What I am hearing is that you are not able to come up with the 90% rule of buildable soils even if the lot line were changed.
Mr. Noyes-To satisfy the PB, no.
David Dobson, abutter-This dwelling has been here for 20+ years and hasn’t affected the environment or the town adversely in any way.  In my opinion what they are doing is the right thing.
Robert W.-The proposed use will not diminish surrounding property values because we are not creating a new building lot.  Granting this would not be contrary to the public interest because there is no impact to the services of the town.  Denial of this variance would result in an unnecessary hardship to the owner because the zoning restrictions as applied to the property interferes with the reasonable use of this property considering the unique setting of the property and its environment such that there is no practical way to move the lot line without including more wetlands.  Even by including the whole 51.5 acres that we currently own with this house the lot still remains substandard because of the maximum 10% wetlands requirement.  (According to the PB)  We feel this lot line adjustment provides the best scenario for our land.  This small lot makes an adequate house lot, it has been in effect for 28 years.  It has a house and a 3 car garage and hasn’t created any major problems.  The bigger backland is very much in the spirit of the zoning since there won’t be any further development.  It is being saved for our hunting and firewood use.  I’m still confused that when these 2 lots were created the smaller lot is considered the new lot when the house has been there for a considerable amount of time.  
Ed-You had 1 lot now you have 2 and one of them needs to be called the “new” lot.
Robert A.-According to your own ordinances, if this is granted, we have to on the deed say this is strictly backland and cannot be a buildable lot.  No one will be building back there.  There will be no further impact to the services of the town.

The board went over the zoning ordinance pertaining to special exceptions which can be granted by the BOA.  Under the wetland section e. it states preexisting uses cannot be expanded, altered or changed without a Special Exception from the BOA but there is not a list of special exceptions to grant or deny.  The BOA feels that perhaps this is an oversight and needs to be addressed with the PB.  There should be a list of special exceptions to this article.

Steve-In my interpretation of the zoning I feel we can hear this case for a variance but not a special exception.
The other board members agreed.

Mr. Noyes-The PB refers to the wetland issue on every one of the other uses, whether commercial or residential.  Item e. says “Preexisting Uses” are exempt.
Dave-In my opinion they are not making any change.
Steve-The change is the lot line.
Kathleen Gagne-When we met with the PB in October we were told this would be a simple lot line adjustment and the very next meeting it would be approved.
Mr. Noyes-I do the same thing on all subdivisions, go in for a preliminary discussion and ask what needs to be done so I can let the client know how much work needs to be done.  They stated that the stamp would not be required and they backed away from that when we came back with the plan.

There is no evidence of this since it was not in the PB minutes but several abutters in the attendance stated they were present at the meeting when discussions took place.  

Steve-When you originally went to the PB with the conceptual plan they told you what you needed to do, you did what they asked you to do, came back the next month and then they said what?
Robert A.-They hit us with 5 other issues.  
Robert W.-It was told to us at the 3rd meeting that the soil stamp would be required because everyone else in the last year had one.  We did some research and found that not every plan had a soil stamp.
Steve-Andrea submitted to the board this evening, minutes from the last year, and it was told to the Selectmen, that every lot was required to have the stamp.
Dave-From January 1 to present.  Not from October to January 1.  
Kathleen-We went to the Registry of Deeds and did not find the soil stamp on the plans.
Steve-With the 10% rule it is actually talking about 90% buildable area.
Mr. Noyes-By reading the ordinance as it is written the plan satisfies all the requirements.

Mr. Gagne feels that if meetings are going to be taped, the tapes need to be kept for a period of time.

Ed-Do we really have wetlands here?
Jeff-They are very minimal.  
Steve-When you look at our town maps it doesn’t say wetlands.
Jeff and Mark felt there would not be a diminution in value of surrounding properties because there would not be as many houses.  Values of the other homes would probably increase due to the non-buildable backland.
Jeff stated by granting the variance it would not be contrary to the public interest because there is no impact on the town services.  This lot also provides a suitable area for on site water supply, sewerage disposal system and buildings.  It also contains more than 5 acres which is required in the RA district.
Mark feels the net usable area of 4.3 acres within Map 7 Lot 12 has supported a dwelling without adversely affecting the environment which is the special conditions that makes this area variance necessary.
Ed added the same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because the lot line adjustment still would not qualify under the 90% stipulation.
Steve stated by granting this variance substantial justice would be done because 5.626 acre house lot presently supports residential structures.  We still have a lot, acreage wise that meets the intent and purpose of district RA but creates recreational hunting fishing for the public and firewood for their own use.
The board feels the use contemplated by petitioner for this variance would not be contrary to the spirit of the ordinance because it meets the intent of the purpose of the RA district.

Steve MacCleery motioned to grant the requested area variance to Article II, Section D. District RA-Purpose & Article III, Section P-Wetlands for Map 7 Lot 12 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 it would increase the value of surrounding properties due to reduced development because of non-buildable backland.
2.  The granting of this variance would not be contrary to the public interest because there is no impact to the town services and this lot provides a suitable area for on-site water supply, sewerage disposal system and buildings.  It also contains more than 5 acres which is required in the RA district.
3.  Since
 a.the following special conditions of the property make an area variance necessary in order to allow the development as designed because the net usable area 4.3 acres within Map 7 Lot 12 has supported a dwelling without adversely affecting the environment.
 b.the same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because the lot line adjustment still would not qualify under the 90% stipulation.
4.  By granting this variance substantial justice would be done because the 5.626 acre house lot presently supports residential structures.
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 meets the intent of the purpose of the RA district.

Motion was seconded by Mark McIntosh.

4-0 in favor of the motion.  Motion carries.

Meeting adjourned at 9:10 PM

Respectfully submitted,

Holly MacCleery, Secretary
Chichester Board of Adjustment

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