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BOA Minutes Plummer 8 10 05
CHICHESTER BOARD OF ADJUSTMENT MINUTES
AUGUST 10, 2005

Case #185 Carroll & Debra Plummer/Conservation Commission Map 4 Lot 8 requesting a use variance to Article II Section D. to allow the subdivision of an 8 acre parcel with existing house on Main Street to allow the town to acquire parcel that would provide access to Marsh Pond and the Sanborn/Cray conservation area.

Members Present:  Mark McIntosh, Vice Chairman; Steve MacCleery, ex-offico; David Dobson; Ben Brown; Lou Barker; Edward Meehan, Chairman.
Voting Members:  Mark, Steve, David, Ben, Lou

Conservation Commission:  Jeff Andrews, Bob Mann, Walter Sanborn

Abutters:  Madeline Sanborn, Ed Meehan, Shirley Kimball

Jeff Andrews will be representing this case.  A purchase and sales agreement has been signed by the Plummers and two of the Selectmen to purchase up to 6 acres of their 8 acres.  A colored map, which is a blow up of the National Resources Inventory, was presented to the board.  The shading around Main Street, which is darker than the remaining area, is based upon the scenic view along Main Street.  The darker the area on the NRI map the more significant the natural resources in the area.  The blue lined area on the map is the NRI delineation which is mostly significant wetlands throughout the country.  These wetlands have been identified on a national level.  These can be seen on an aerial photo.  The black dash lines are approximately the detailed wetland delineation which Globe Environmental went out and flagged behind the Plummer house.  It will leave the house with 1.5 acres of 5 acre soils.  With the exception of hilly area in the back, which is dryer, the remainder will be open space conservation wetland type soils.  Doesn’t see any down side to what is being proposed.  It will provide access to the townspeople to the conservation land.  We are planning on having a trail for people to go out to the peninsula on Marsh Pond with a few picnic tables.  Would like to also put a kiosk at the beginning of the trail which will have information about the conservation area and what is permitted.  In the future they may be a village zone in the area with businesses and residences and it would be nice to have a path around Marsh Pond of which this would be a link.  Also written into the deed there will be a reserved right to put in a gravel access road with a turn out.  There will be no parking lot.  Cars with small boats or kayaks would be able to access through this road.  The Town Hall parking lot would be used for parking once the boats were unloaded.  The CC tried to get access in other locations but this area is the first choice to pursue first.  There is a 17’ wide access next to Fred Shaw’s field.  DOT told them they would not be able to get a curb cut from this location unless more land were purchased and provided a 50’ radius turn out for better sight distance.  There is a 20’ access area next to the Plummer property which is the Meehan property.  You would be able to get in there but there are also a significant amount of wetlands between Madeline Sanborn’s property with the garage on it and the pond.  The other potential access would be at the fire station.  It is quite a hike to go back from the fire station parking lot to the pond.  There would be a couple of intermittent brooks that would have to be crossed with a road.  This would be a further distance than the proposed project with the Plummer property.  Jeff feels that this proposed project is in the best interest on the town, the Plummers and abutters.

Madeline Sanborn stated that nothing has been done with the property that she gave to the Conservation Commission back in 1992.

Steve-The land where the Plummer house sits has been designated as Rural Agriculture soils but only 1.5 acres?

Jeff-Yes, about 1.5 acres is our guess.  We went out and looked where it was flagged and taped and paced the area.

Steve-In this colored map it shows a light tan area that is RA soils?  According to the map it looks like more buildable soils then there really are.

Jeff-Correct.

Ben-How deep is the black dotted line off the road?

Bob-About 125’.  Their well and septic are well within that space.

A black line was drawn on the submitted colored map showing where the subdivision of the Plummer property will take place.  This will leave 3 acres remaining with the existing house.  

Ben-If our variance motion says 3 acres you can make that work?

Steve-You need 90% of 5 acres for RA.

Ben-If they had that, they wouldn’t be here.

David-This is an existing building anyway.

Jeff-On the map where it shows Madeline Sanborn’s lot with the garage that is all open space wetland soil.  Marked on the plan it is stated “non-buildable lot”.

Madeline-There is lumber on the property that I gave to the town.  I had plenty of opportunities to sell it before I donated it to the town.  It might be a good idea to sell some of it and use the money to finance what you plan on doing.  

Bob Mann-The town is going to be short on open space and recreational opportunities.  Public access land is becoming very scarce.  We looked at this project fitting in well with the village district.  We have worked extensively with the camp ground as well.  We look at this as a valuable asset to the town in the future.  We need safe public access and we didn’t see any other options along Main Street.  There wasn’t any DOT safe access in other areas that the town owns.  We have an ample parking lot that can be policed at the Grange Hall.  

Ben-How much land is there in the Sanborn/Cray conservation area?

Jeff-Including the pond there is about 37 acres of land with no adequate access.

Madeline-I am very disappointed in how this whole project has been handled.  There have been so many promises.  Years ago beside my garage you were able to go down to the pond and bring up ice, hay etc.  It was accessible then

Steve-Do you have any objections to this plan?

Madeline-No.  It sounds like they are going to spend a lot of money on the Plummer property but they won’t just cut a couple of tress to get access to the land I gave.

Steve-Years ago the fire department lot was purchased with the comment being made that this would be great access to the pond.  It was a big selling point to the townspeople.  They were told they needed to buy this lot; there would be a parking lot and a roadway to the pond.  Why aren’t we using that access?  I did not sign the purchase/sales agreement.  If we are going to put money into this project why not use it on property the town already owns?  It is already by the police department which would have ample coverage over the parking area.  Develop that roadway which was a big selling point for that piece of property years ago rather than taking on more land and taking it off the tax roll.

Lou-We have very little access at the fire station because of the impact on emergency vehicles.  The Town Hall location sounds like a better area to get it away from the fire and police station.  The Town Hall has an adequate parking lot.  This is the best access as far as I can see.

Ben-There is space to drive back down behind the fire station.  There is probably space enough out back to park so they wouldn’t be in the front of the station.  You would only have traffic coming in and going out.

Lou-Does the fire dept. want the traffic through their parking lot?

Steve-They were all for this thing because it helped them acquire this piece of property.  It was all part of the sales pitch.

Lou-Things have turned 180 degrees.  I think the fire dept. property is totally irrelevant to this project and is a reason why we should consider approving this variance.

Bob-There had been areas in town that were purchased that were thought to be able to provide access to the pond.  The present CC has been active about 3 years.  Prior to that several individuals were working on this but they didn’t have a lot of support from a town committee.  We plan on following through with this project.  Even if there isn’t immediate follow through I think it is important for the town to acquire these properties before they become unavailable.  Behind the fire station, it does go down to the pond, but you can’t access the Sanborn/Cray conservation area from there unless the water is very low or if bridges were built.  The best access, in our opinion, is through the Plummer property to get to the Sanborn/Cray area.

Ed-As an abutter, there is a small parcel across from my house and I would have no problem with using it for access.  When I was approached originally, they were talking about putting a parking lot there which I didn’t want across from my house.  If they want to put a parking lot below it I wouldn’t have a problem with that.

Jeff-With that lot the right-of-way isn’t the issue at the moment.  It is the wetlands in the back.

Ben-It isn’t just having access to the land but getting to the land.  You have fewer wetlands to go through if using the Plummer property.

Steve-Before the concept of purchasing land from the Plummers came about the CC was pursuing, to the DOT, a roadway which now Ed Meehan says he would be amenable to increasing through a right-of-way an easement so you would have the 50’ turning radius.

Jeff-The turning radius wasn’t the issue on this access.  Next to Fred Shaw’s was the turning issue.  There are deed restrictions on the Sanborn/Cray area that prohibits structures and a gravel parking lot may be considered a structure.  The Management Plan for that area had three goals:
1)  Wildlife preserve
2)  Selective cuts of timber and timber management
3)  Passive recreational use

Madeline-How much area is needed for a parking lot?  I could give some more land behind my garage.  I wouldn’t have a problem with them putting in a parking lot there.  I want to retain land around my garage but could give them another piece of land down by the meadow.

Steve-That way there wouldn’t be a parking area within the conservation area.  It would be up to the CC and or Selectmen to determine who big a parking area needed to be.  It depends on how much land Madeline is willing to give.  It would have to be discussed.

Jeff-That is a generous offer but one of the main reasons we rejected that option is the wetlands that we have to cross.  We would still have to cross a lot of wetlands to get to the water.  Don’t know if we would get state approval to cross that much wetland.

Steve-To cross for what purpose?  On the fire station lot you have access to the pond if someone wants to put a boat in.  That is already town property.  Do you need access to the pond for boats, canoes, kayaks, or are you looking for passive recreation?  If you are looking for passive recreation people can park in a new parking area on that two acres and they walk where ever they want to go on the property.  You stated you could put a canoe in from the fire station access even though it wouldn’t be as easy.  You may not want to make it too easy since this is conservation land.  It depends on how much you want that land to be used.  You have stated that you can’t get to the land other than the Plummer property access.  We have just had an offer from an abutter about putting a parking area else where which would provide great access to the whole piece of property.  

Walter-As far as distance, it is shorter through the fire dept. property.

Ben-It does look closer to the pond from the fire station.

Comparing the two distances, it is less distance using the access from the fire station.

Lou-I still say you should away from the fire station.  I see a whole lot of advantage using the parking area at the Grange Hall with access through the Plummer property.  Main Street is a dangerous road so why put more access points on it?

Mark-Before we go any further, you have a couple options that have been offered this evening.  Do you want to pursue these options and table this application or do you want to go forward?  

Jeff-I would like to go forward with this application.

Bob-From the very beginning we knew there were other options to get down to the conservation land.  The decision was made to really pursue the one that was safest, best and easiest to maintain.  We feel the Plummer property is the best overall lay out.  



BOARD DISCUSSION

It was mentioned by Lou and Ben that there would not be a diminution in value of surrounding properties.  There are no impacts to the surrounding area.  Conservation land increases the value of abutting properties.

Ben said the granting of this variance would not be contrary to the public interest because it is in the town’s interest to preserve open space wetlands; it is in the town’s interest to have a credible plan to access the 37 acres of conservation land already owned by the town.

David felt that the uniqueness of this proposed project is the link between two town owed pieces of property.  The variance would provide a link between two currently owned town parcels and therefore, the zoning restriction as applied to the property interferes with the reasonable use of the property.

David, Lou and Ben felt there is not a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property because the existing substandard lot will not benefit from retaining the back portion since the soils are unsuitable for anything but conservation.

Ben felt the variance would not injure the public or private rights of others since abutter’s property values will be enhanced and the public will benefit by gaining a new access to town conservation land.

Lou felt by granting this variance substantial justice would be done because it will allow the town to obtain conservation land for recreational use.

Steve felt the use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because in RA soils you need 90% of a 5 acre lot and cutting it down to 1.5 acres, whether it’s what’s there already or not, is so far away from the 90% that it is against the spirit of the ordinance.

Lou feels it is not contrary to the spirit of the ordinance because it is the intent of the ordinance to protect and establish wetlands in perpetuity.

Ben said the answer to this comment depends on which ordinance you are referring to.  You are both referring to different ordinances according to our zoning.  Lou is referring to the section talking about conservation and wetlands and Steve is referring to the section about RA and general requirements.  When it says the spirit of the ordinance, be specific about which ordinance you are referring to.

David added that the lot itself now is not in compliance with the RA zoning.  Ben said that this was an existing lot.  We are creating a substandard lot, which has been done in the past.

Steve-We have done it when it was close, but to be a third of what is required is really stretching it.

Ben-This is 1.5 acres of non wetlands, RA soils.  We had a discussion with the Planning Board about narrowing our focus on what the BOA was granting a variance to.  There are 8 pages in the zoning pertaining to Article II, Section D.

Steve-We need to name which district in Section D the variance is being granted or denied to.  As far as the town maps are concerned, this whole parcel falls within district OSW.  When the Planning Board has a subdivision come before them, they want to see wetlands delineated soil scientist stamps etc. so they see proof on the acres of buildable soil.  I understand you don’t want to spend that kind of money yet but we don’t have documentation in front of us stating there is actually 1.5 acres of RA soil there.  Even if there is 1.5 acres of RA soil that is less than 1/3 of what is required in the RA zone.

Ben-There is a special exception listed under RA that includes public recreational buildings and lands.

Steve-We are looking at 1.5 acres to stay with the Plummer’s house.  I am not disputing that down back is open space and is great for the public.  My problem is making this substandard lot a 1.5 acre lot with RA soils.

Ben-Couldn’t we treat the special exception as a reason to create a substandard RA lot?  The rest of the lot is being partitioned out for public recreational land.

Steve-If you use that interpretation I see any lot in town now, if someone has only 1 or 1.5 acres of buildable soil, they can ask for a subdivision and give the remainder of the land to the town.  Are we going to be setting that precedence?  The wetlands are being protected but the town is going to end up with non buildable lots that could come to us wanting the same things for their unusable land.

Jeff-We don’t want it.

Ed-I see what Steve is saying about creating a substandard lot and others coming forward to build on a non conforming lot if they give some of it away to the town.  We, as a board, don’t work on precedence.  I feel we have to look at the over all benefit to the town.

Ben-This substandard lot has already been built on.  There already is a house and septic on it.  We are not creating a substandard lot that would allow someone to build.  They are not asking for this variance in order to build.  We need to narrow exactly what we are granting a variance to.  It sounds like we should be granting a variance to Article II, Section D. Rural/Agriculture purpose which mentions the 5 acre minimum with 10% soil.  The result of this means we are not letting someone get away with not having a soil scientist stamped documentation of where the wetlands are.  It has been flagged just not drawn on the map.  Given that the board has narrowed its focus to the RA zone to Article II, Section D this would not be contrary to the spirit of the ordinance because one of the listed special exceptions is public recreation land and the intent of creating this substandard lot is to provide the remainder of the lot as public recreational land.

Steve-I still don’t think it affects the lot that the house is sitting on.  It is a good argument for using conservation land for the town.  

Ben-Once the subdivision is made then the remaining backland doesn’t need a variance for the town to use it.  It’s already open space wetlands therefore; it already conforms to the use of passive recreational use.  The whole idea of this variance is to create the substandard lot in order to make the back lot that allows this use.  The only way to do that is to make the front lot substandard.  To me that is a valid interpretation.  

Lou-This property will not change in its use.  What is being used as a residence will remain.
Steve asked the board to look at page 41 in the BOA Handbook under “Summary”.  It states, “The BOA must act on the evidence presented and base its decision on legal grounds.  The board cannot deny or approve an application based on a judgment of what it considers the best interest of the area or neighborhood.  The legislative body, in passing the ordinance and map, has already decided what zoning controls it believes to be best for the municipality and has determined what restrictions will be applied.  The BOA must act within the limits set by the ordinance and map and cannot enlarge, restrict, or disregard these limits.  The BOA cannot be given legislative powers.  It cannot do anything that would, in effect, be rezoning.”

Ben-Then how have we allowed several of the last decisions the BOA has made?

Lou-I don’t see that we are rezoning.  They will be getting credibility to an existing condition.

Ben-We are not making a blanket statement for all property in this area.  This is a very particular instance that has unique conditions.

Steve-Yes, it has a unique condition but the only reason to grant it is to give access not to make that lot any more buildable or any less buildable or any better.  It is to grant access to get to the pond.

Ben-I totally agree.

Lou-In looking at the wetland map the usable property is next to the road, wetland is in the back.  We are not changing anything.  

Ed-In reading that summary, if you were to apply it verbatim, there would be no need for the BOA.

Ben-Each case is based on its own merits.

Ed-When you say that the BOA must act within the limits set by the ordinance, part of the limit set by the ordinance is the right to appeal.  

Steve-I agree. My argument is, we heard a case and looked at the amount of acreage needed and close they were.  We allowed it because they were already on the lot, they were real close to the 4+acres they needed (90%) this one is 1/3 of what is required.  It is so far out of balance.  Everyone is welcome to their own opinion.  This is how I see it.

There is still a difference of opinion to the use being contrary to the spirit of the ordinance.  Ben feels given that the board has narrowed its focus to the RA zone to Article II, Section D because one of the listed special exceptions is public recreation land and the intent of creating this substandard lot is to provide the remainder of the lot as public recreational land, the use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance.
Steve is still of the opinion that 90% of the RA soil is not being adhered to.  This is only about 1/3 of the required soil.

MOTION
Lou Barker moved to grant the use variance to Article II, Section D. Rural/Agriculture based on the discussion of #1-#4 and Ben’s answer to #5 of the BOA worksheet.  Ben Brown seconded.

DISCUSSION ON THE MOTION
Steve-It is not a use variance now.  It is an area variance because we are granting dimensional aspects.

Ben-Why was it a use variance before?

Steve-I believe it was before because at the time the applicant came to us they thought the whole lot was open space conservation, which you couldn’t even build a house in.  They have now disputed this.  It is no longer a use variance because it is a dimensional thing.  We are giving a variance to the criteria of the 90% factor of RA soils.  We need to be using the area variance worksheet.

Jeff-I don’t want to change the application.  I think it is a use variance.  It is all wetland soils.  Someone already built on it that is all wetlands.

Steve-But you had it determined that the 1.5 acres is not wetland soil.  You changed your application in determining that.

Jeff-I think my application is based on wetland soil being in this area of a substandard lot and I’m not making the lot any more substandard.  There is nothing they can do to rectify the situation.

Ben-It’s not as if the existing lot met the 90% criteria.  

Jeff-It was built between 1910-1915.  It predates zoning.

Steve-What you are asking a variance for is for the 90% of the RA soils which is a dimensional issue.  When other lots have come before us we used the area variance criteria of the percentage of buildable soils.  You can all vote the way you want but it has to be a legal variance.  If we grant a use variance and it should have been an area variance we have all wasted our time.  A use variance is for a use that is permitted in that zone but just doesn’t quite fit.

Ben-This should have been applied for as an area variance in the beginning.

Jeff-On the worksheet under an area variance it says “special conditions of the property make an area variance necessary in order to allow the development as designed.”  We are not doing a development.

Steve-The area variance is not that specific.  It deals with all dimensional.  We are not disputing that you have 1.5 acres of RA soils.  If you hadn’t found that you had RA soil and it was actually all open space wetlands then you would be here for a use variance because the house is not permitted in open space conservation wetlands.  A house is permitted in RA soils.  The problem is you don’t have enough RA soils.  This is information that has been found out.  It is just a matter of going through a different worksheet which most of the same questions are on.

At this time it was determined that an area variance would be sought and both Lou and Ben with- drew the previous motion and second.

According to the area variance worksheet under 3a. Ben feels the following special condition of the property make an area variance necessary in order to allow the development as designed because there is only 1.5 acres of RA soils instead of the required 4.5 acres.  He further stated under 3b. that the same benefit cannot be achieved by some other reasonably feasible method because there is no other piece of property.

Mark-I would have to disagree with that.  There has been a proposal already offered tonight of other property.

Ben-There is no other piece of property that ties the Town Hall parking lot to the other 37 existing acres of conservation land.

MOTION
Lou Barker moved to grant an area variance for Map 4 Lot 8, to Article II Section D. Rural/Agricultural contingent upon the town purchasing the property and leaving no less than 3 acres with the existing Plummer property 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 there are no impacts to the surrounding area.  Conservation land increases the value of abutting properties.
2.  The granting of this variance would not be contrary to the public interest because it is in the town’s interest to preserve open space wetland; it is in the town’s interest to have a credible plan to access the 37 acres of conservation land already owned by the town.
3.a. Since the following special conditions of the property make an area variance necessary in order to allow the development as designed; because there is only 1.5 acres of RA soils instead of the required 4.5 acres.
 b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because there is no other piece of property that ties the Town Hall parking lot to the other 37 existing acres of conservation land.
4.  By granting this variance substantial justice would be done because this will allow the town to obtain conservation land for recreational use.
5.  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance given that the board has narrowed its focus to the RA zone to Article II, Section D because one of the listed special exceptions is public recreation land and the intent of creating this substandard lot is to provide the remainder of the lot as public recreational land.
Motion was seconded by Ben Brown.

DISCUSSION ON THE MOTION
Steve-I still disagree on #3 and #5 because other offers have been given tonight by abutters and we do have access through the fire station lot.  Although it is a good reason I just don’t feel it is a credible one.

Ben-We have heard discussion about not wanting increased traffic at the fire station.  Also comments were made against another driveway or parking lot access off Main Street.  I think the unique feature of this lot is that it provides access to that land using an existing parking lot.  The fire station lot, Madeline’s lot and Ed’s lot don’t provide that.

Mark-We have heard other offers on the table tonight that I feel should be pursued and checked out to see if they are feasible.

Steve-I think the board has ruled in the past that if there are any other options a variance is the last thing to pursue.  A variance should be a last resort.

Ben-By having this variance in place don’t they then have to go before Town Meeting and get permission to spend the money for this land.
Steve-That has nothing to do with it.  The CC has the money and they can spend it.  This only has to go through a public hearing.

Lou-I would argue that they have already scoped out other options.  How far do you want them to go?

Mark-We have just had acreage offered here tonight by two different parties.

Steve-There was an argument as to the access through Madeline Sanborn’s lot about wetland in a certain spot.  They statement was they didn’t want to build a parking lot in the conservation land and probably couldn’t do it anyway.  I agree with that but Madeline made an offer that the parking lot could be in her two acres that goes with the garage.  Also Ed Meehan mentioned access through his piece of property.  This is a last minute offer by both parties.  Perhaps the CC should look into those offers a little more.

Ben-I think the CC responded to both of those offers by saying that they were considered along with this one and this is the one they chose to pursue because this was the best of the three.

Steve-I would ask the CC members here had Madeline offered a parking area within the two acres that stays with her garage before this evening.

Jeff-No, this is the first we have heard of it.

Steve-Okay.  That is what I am getting at.  We have only 3 members here tonight from the Conservation Commission and this is an offer made by an abutter and it has not officially come before the CC to be decided at a meeting by the entire board.

Ben-That doesn’t necessarily mean that the option wasn’t considered even without the offer being on the table.  I thought they had said the option had been considered whether or not to pursue that.  

Mark-This is totally new this evening.

Ben-This offer is new but I thought they said they had considered should we ask if they could put parking up there and they decided not to.

Lou-I feel they did consider all their options.

VOTE ON THE MOTION
Yes-Lou Barker, David Dobson, Ben Brown
No-Mark McIntosh, Steve MacCleery
Motion carried 3-2.

Respectfully submitted,



Holly MacCleery, Secretary
Chichester Board of Adjustment
 

 



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