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Minutes BOA 5 4 05 Mulachy Glen
BOARD OF ADJUSTMENT MINUTES
MAY 4, 2005

Case #178 Malachy Glen Associates, Inc Map 4 Lot 168-A requesting an area variance from the wetland ordinance.  Friedrich Moeckel will be representing the applicant.

Members Present:  Edward Meehan-Chairman, Steve MacCleery-ex-offico, Ben Brown, Diana Calder, Mark McIntosh, Jeff Jordan, David Dobson.

Voting Members:  Edward Meehan, Steve MacCleery, Ben Brown, Mark McIntosh, Jeff Jordan.

Mr. Moeckel read from the court order which states that the BOA needs to grant a new hearing on this case.  The court felt that there was sufficient evidence that warranted a new hearing.  Part of the argument made to the court was that, when motion was made for a rehearing, we submitted in the motion new law and new facts to the board.  The applicant made the argument that he was vested and that the wetland ordinance didn’t apply at all.  The board denied the variance based on those facts.  In the motion for rehearing the applicant suggested and argued that statuary vesting is a distinct issue outside the scope of a variance.  You’re either vested or you’re not.  The court agreed with us and said “The ZBA stated that is was denying MGAI’s variance on the ground that the five criteria for a variance were not met.  However, the ZBA provided no reasoning for its decision.  When MGAI requested a rehearing, it laid out fully the reasons for its request including the failure of the ZBA to address Simplex.  Rehearing was denied on the ground that the project was not substantially begun within 1 year of site plan approval.  The Court finds that the ZBA’s decision was unreasonable.  There is no evidence that the ZBA considered the Simplex requirements during MGAI’s request for a variance or its motion for rehearing.  The only finding relating to the Simplex factors is the bald assertion that MGAI did not sufficiently meet its obligation under the criteria.  Such an assertion, with no evidence that the criteria were actually given weight or consideration, is unreasonable.  Accordingly, the decision of the ZBA is REVERSED and the matter is REMANDED to the ZBA for proper consideration of the Simplex criteria for the issuance of a variance.”

Mr. Moeckel also added that the board needs to conduct an analysis.  He submitted a letter from Beaver Brook Environmental Consultants and a site plan of the proposed project.  (On file)  If the board feels Malachy Glen is vested than a variance is not needed.  If they disagree with the vesting than an area variance is needed for the storage facility.  When this plan was approved the town had no wetland ordinance.  The state’s requirements were being used.  They plan to use a series of open drainage systems, with swales and a detention pond.  The runoff from the paved area is directed into the swales which are open and have vegetation so it will slow down the water.  The concept is by creating open drainage systems you protect the wetlands outside of the system from any harmful chemicals that may or may not be in the runoff water.  There are jurisdictional wetlands.   The project does not go into wetlands, it does run very close in one section.  With this system in place, as long as it’s properly installed pursuant to the permit, the impact on the wetlands will be zero.  Access to the lot is needed.  DOT doesn’t want a curb cut close to the intersection and the wetland is prohibiting access.

Jeff-Who would monitor the detention pond?

Mr. Moeckel-The state will inspect if to make sure it is constructed properly.  It is also designed so that the basin and the detention pond can hold more water than we would get from a regular rainfall.  Tremendous rainfall would be the only reason that there would be an overflow.  This project is something that Chichester needs.  It will not diminish surrounding property values.  Granting this would not be contrary to the public interest.  Toxic chemicals will not be allowed in the facility.  I have walked this property and I have found garbage on it.  Having a business there would deter this.  The drainage system meets the public interest of protecting the wetlands.  The buffers prohibit the proposed project on this site.  The ordinance itself is prohibiting this project.  The applicant cannot achieve this by some other method reasonably feasible other than an area variance.  Substantial justice would be done since the public gains nothing by prohibiting a structure within 100’ of wetlands on the property while allowing septic systems at an even closer distance.  You cannot get to the buildable part of the lot without a variance.  The use is not contrary to the spirit of the ordinance because the wetlands are still protected.

Diana-How many units are proposed?

Mr. Moeckel-There are 8 separate buildings but am not sure of the number of units.

Diana-No trees will be cut?  Buildings will not be seen from the road?

Mr. Moeckel-No.  In the winter they will probably be seen.  The vegetation that is there will create a barrier between the structures and the road.  The wetland scientist talks about the wetland system in its entirety.  He notes that over time it has been fragmented, mainly with Route 4 going through.  Culverts and drainage systems have been put in along Main Street.  All the projects have diminished the macro wetland system so that it doesn’t support wildlife any more.  The projects that are going in next to this one and the fire station behind this one have altered the wetland system.  We are encroaching the buffer but not harming wetlands.  This project is the least impact for the site.

Diana-Have you looked at the cost effectiveness of making the buildings smaller so that they don’t go into the buffer?

Mr. Moeckel-No.  The project was submitted as before you and the State agreed that it was appropriate for the site and the buildings were reasonably sized.  The Planning Board agreed also that they were reasonably sized before the town had a 100’ wetland buffer.  

Mr. Moeckel informed the board that the DOT is planning on installing sidewalks.  He showed the board a plan of their intentions.  The state wants to fill wetlands for this project.  Malachy Glen is not asking to fill any wetlands.
BOARD DISCUSSION
Ed-There are several things we need to consider.  We have already ruled that Malachy Glen is not vested.  Should this be broken into 2 separate variances?  Access to the property and then the development?

Steve-I believe that access is one part to vote on and then consider the project getting a variance.  I believe they should be granted access but question the size of the project.  The question was just asked about making the buildings smaller.

David-This is a sensitive issue.  We have had troubles with wetlands that feed Marsh Pond and the overflowing of the pond.  If there is a large area that is paved it will diminish the absorption of rainwater.  

Mr. Moeckel-There will be paving.  That is the reason for the open drainage system with the detention pond to take care of runoff from the paved area.  You can replicate what nature is doing on its own.  

Ed-Is there a problem with addressing one issue and then the other?

Mr. Moeckel-What is before you is an approved plan.  If we make changes I think it would have to go back in front of the Planning Board which may have different views now.  The project is reasonable and the impact is the same.  The wetlands and the project haven’t changed.  All that’s changed in the 100’ setback and land change.  By separating those two issues, the access and the project, in my opinion is a self-serving decision.  You grant the applicant access you resolve any potential constitutional issues and say good luck.  We would like you to treat this as one.  If we get access who’s to say the Planning Board will agree with you and then we are back in front of you again.  Impact to the buffer is minimal.  If you say paving is okay to gain access to the project but it’s not okay in another area I think it is ingenuous.

Steve-I think part of their argument to the court was they were denied access to the property as well as being able to build the project of the size that was approved by the Planning Board.  We have a plan before us which shows the least infringement to the wetlands for access.  If that access area is approved by this board it will not change even if they go back before the Planning Board for project changes.

Mark-I feel this should be treated as 2 separate variances.

Jeff-I feel we should honor the applicant’s request.  If they wanted to do it in two they would.  

Ben-I agree with Jeff.  It may be easier to do it in two cases.  I think you can accomplish what you want with a single variance process.

Steve-If you are proposing one variance which would include access and then sizing down this development then my vote would be different by leaving it the same size and encroaching on the buffer.

Diana-Don’t know a lot will be accomplished by splitting this up but I understand why you want to do that.  It is cycle of going from one board and then another.  I don’t want to get into the vesting issue but could you tell me why this isn’t vested?  Maybe they need to rethink the size of their project.

Steve-The project was not substantially started within a year of approval and then zoning changed.

Jeff-What bothers me about this project is how the boundary line is so far into the 50’ area.  The project needs to be modified or scaled down to some degree.

David-The road is less than 10’ from the wetland.

Steve-I believe they should be granted access to the property but the footprint of the development needs to shrink.  Zoning has changed, nothing has been built, there is no infrastructure there.  Plenty of storage can still go in this area.

Mark-I agree with that statement.  Looking at the septic system area I don’t see where leaching is going to go.

Steve-The septic tank is not within the buffer area.  If an office is going to be on the property they will need a well and septic.  The well falls within the buffer but there is no reason that they couldn’t move the well.  This is just a proposal.

Mr. Moeckel-My understanding is that there will be no toilet facilities.  

Steve-Then there will be no office with this project?

After looking at the proposed plan more closely there is reference to the new lot being serviced by onsite septic and well.  The septic is not within the buffer, the well could be moved or could be part of a variance.  It falls within the 100’ buffer.
Mr. Moeckel retracted his statement about the toilet facilities.

Ed-Is there any particular reason why some storage facilities are going to be close to the boundary and others are further away?

Mr. Moeckel-To allow for the flow of traffic and fire safety.

WORK SHEET STATEMENT OF REASONS
1.  There would not be a diminution in value of surrounding properties because this is a commercial project in a commercial area with minimal impact to town resources.
2.  The granting of this variance would not be contrary to the public interest because everyone deserves access to use their property.

Jeff-I think it would be contrary because it infringes into the state wetland buffer.

Steve-Even though they received state approval?  I understand what you are saying.  I feel they should be granted access but that the project should be scaled down to meet today’s zoning.  

Ben-It is not against public interest to allow them access, but it is against public interest to encroach on the wetland buffer that was enacted 3 years ago and reaffirmed this March.  I feel it is against the public’s interest to grant a variance on the entire lot.  One question that was asked was, how many units will there be?  If it is scaled down, how many units will there be?  Would building that many units, and the rent on those units, make this project economically unsound?  That information wasn’t given.

3. a. The special conditions of the property make an area variance necessary because access to the property should not be denied.
Ben-I’m not sure that there are special conditions that prohibit it from being used.  Even though there are some that prohibit it from being used as designed, there aren’t any that prohibit it from being used except you have to cross it to have access to it.  

The Boccia court case was referred to relating to scaling this project down.  Ben felt it was saying you don’t have to prove the land can’t be used for anything you just have to say this is a reasonable use of the land.
Ed-We don’t know if we can determine if this project were scaled down if it would be feasibly possible.
Diana-We can’t if the applicant hasn’t considered it.  They can’t tell us how many units will be in this project.  They can’t prove a financial burden which is considered in question 3 b.
Steve-They have implied that they don’t want to scale it down but we haven’t seen the figures as to why.

Ben read from the BOA Handbook referring to the town of Hudson referring to 3 b, under the second factor of the Boccia test, there must be no reasonable way for the applicant to achieve what has been determined to be a reasonable use without a variance.  We have to decide if this is a reasonable use.  Is it permitted in the town zoning ordinance?  I believe so.  Therefore, it is a reasonable use.  Making this determination the financial burden on the landowner considering the relative expense of available alternatives must be considered.

Ed-What is economically feasible?  
Ben-This certainly is a reasonable use of the property.  We can consider that they can down size this project and not need a variance.
Diana-To keep it out of the 50’ area there is not a lot of shrinkage.

3. b. The same benefit can be achieved by some other reasonably feasible method that would not impose an undue financial burden because  the development as designed so encroaches on the wetland buffer to the extent that it does and the applicant hasn’t given any consideration to amending this plan.  

4.  By granting this variance substantial justice would be done by granting access to the property but would not do substantial justice because there is no evidence that scaling the project down would make it economically unviable.

5.  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance because the ordinance was not intended to deny access to ones property but would be contrary to the spirit because the wetland ordinance was put in place 3 years ago and reaffirmed in March 2005.

Ben-Most of the comments made tonight lean toward giving access to the property.

MOTION
Ben Brown motioned to grant a variance to provide access only to Map 4 Lot 168-A as proposed on sheet 2 of 6 #15233 recorded Sept. 20, 2000 and to deny the area variance request permitting land change within 100’ of wetlands outside the access area.
Edward Meehan seconded.  Motion was made 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 this is a conforming commercial project in a commercial area with minimal impact to town resources.
2.  The granting of this variance would not be contrary to the public interest because everyone deserves access to their property however, it is contrary to the public interest to encroach on the wetland buffer that was enacted 3 years ago and reaffirmed in March 2005.
3.a. The following special conditions of the property make an area variance necessary in order to allow the development as designed because access to the property should not be denied, this is an allowable and reasonable use of the property but the project should not infringe on the zoning ordinance of the wetlands.
  b. The same benefit can be achieved by some other reasonably feasible method that would not impose an undue financial burden because the development as designed encroaches on the wetland buffer to the extent that it does and the applicant hasn’t given any consideration to amending this plan.  Because no evidence has been presented, it seems reasonable that the scope of the project could be reduced to conform with today’s zoning.
4.  By granting this variance substantial justice would be done because it allows the property owner access to the project but, would not do substantial justice because there is no evidence that scaling the project down would make it economically unviable.
5.  The use contemplated by petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance because the ordinance was not intended to deny access to one’s property, but would be contrary to the spirit because the wetland ordinance was put in place three years ago and reaffirmed in March 2005.

VOTE
5-0 in favor of the motion.  Motion carried.

Edward Meehan was elected Chairman and Mark McIntosh was elected Vice Chairman for the ensuing year (March-March).

The Board of Adjustment Rules of Procedure were approved and adopted by a 5-0 vote.  They will be reviewed and/or revised in a year’s time.

Respectfully submitted,



Holly MacCleery, Secretary
Chichester Board of Adjustment






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