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Board of Adjustment Minutes 11/16/2005
NOVEMBER 16, 2005

Case # 191 Barloe Properties, Map 1 Lot 5A located on Short Falls Road.  Applicant is requesting an area variance to Article III, Section P. c. to permit access to the subject property via minimal impact to a seasonal stream and Burnham Brook for a subdivision road as on submitted plan.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; Jeff Jordan; David Dobson; Ben Brown; Lou Barker.
Voting Members:  Ed, Steve, Jeff, David, Ben.

Applicant Leo Dumont of Barloe Properties presented his case.  On 9/22/04 an area variance was granted to Map 1 Lot 5 to cross the seasonal stream across Burnham Brook.  He is now proposing a town road to allow a subdivision for 4 lots at the back on this property.  He has been before the Planning Board for a preliminary discussion and they didn’t see any problems with this project.  This is the only feasible access to the back lot.  Burnham Brook spreads out into a wetland.  He is in the process of getting state permits.

A board member brought up the previous decision of 9/22/04 as being a variance to allow driveway access to a home, not road access.

Tom Hammond, previous abutter, was present at the Sept. public hearing and stated that the second crossing being asked for that evening was taken out of the variance application.  There was a discussion of future access to the property at a later time.

Mr. Dumont feels this would comply with all other zoning ordinances and would protect the public interest.  No public or private rights are being violated.  It was explained at the previous hearing that he would be seeking future access once his plans were firmed up.

Mr. Hammond stated that there is always something on this property pertaining to running water.  It is more than a seasonal stream.

Mr. Dugas was concerned about the protection on the animals and the posting of the land which it currently is.  Mr. Dumont said that would be up to the individual landowners.

There was also concern from abutters about additional water flow on to their property.  Steve suggested that a water shed study would be done to determine the size of culverts that would be needed for water flow.

Mr. Dumont said that this proposed project was for 4 lots and that this would be it.  He is planning on using regular culverts with a pre-cast open bottom bridge going over Burnham Brook, A 16’ span not touching the stream.  He said the state does not allow culverts in running streams.

Ed stated that the variance was dealing with two crossings.  Steve felt state approval should be given for both.  Mr. Dumont replied he is seeking state approval but didn’t need it if he wasn’t touching the stream.

Jeff feels this would devalue the surrounding property with this road going in right beside existing homes.  Steve added because of the change in the dynamics of the area.  Lou feels the road is not going to make a huge difference to the surrounding properties and will have minimal impact.  The impact will be the type of homes being built.  Ed asked if all the houses would be built away from the 100’ setback and Mr. Dumont replied yes.

This variance would not be contrary to the public interest because the area is zoned for the intended use.  The entire parcel is 35 acres that is being subdivided.

The proposed crossing of a seasonal stream and Burnham Brook is the only feasible access to the parcel without impacting a much larger wetland area.

Ben stated that with regards to the hardship of the property owner we were concerned at the time about lots of record being accessible without a variance.  A variance was granted to insure access to the area.  It was felt the lots were already approved.  This is only a single lot that already has access; the proposed lots are not lots of record now.  Without a variance this subdivision can’t occur, does that mean we need to grant it now?  The lot is being used without subdividing it.  Steve commented that it comes down to what is reasonable use of the property.  He wants to turn the big lot into a subdivision.  Ben further stated that the board already granted a variance to the big lot so a house could be built.  What is our drive tonight to expand this and allow both crossings?  You don’t have to have access to all property.  Ed replied that the applicant could put one house on the lot and use the rest for backland.  Ben concluded that the board was satisfied with limiting access last year and wondered why that had changed now.

Ed didn’t feel that Mr. Dumont would be dredging and filling.  Lou added that other access points would be more costly and impact the wetlands more.

Jeff felt that justice would not be done by granting the variance because there is already access to the property.  Ed said you have to consider the impact to the wetlands.  He felt substantial justice would be done by granting the variance.

Ed feels the spirit of the ordinance is to minimize the impact to the wetlands.  We are talking about access that is environmentally sound.  This would have minimal impact.
David asked is it the only feasible access point?  Ed replied with respect to the open water, they are not impacting the stream.

Steve asked Jeff Andres from the Conservation Commission if they had reviewed the plans before them now.  Jeff stated that if there were going to be wetland filling then the CC would review them.  Steve also asked if the Planning Board had the CC look at plans being proposed to them.  Jeff replied not currently.  The CC will see the plans when he crosses the seasonal brook.

Ben referred to the BOA Handbook, page 16.  A development is a permitted use; a single house is a permitted use.  He didn’t believe there is a gain to the public by denying this request.  It would be an injustice to the individual.

Ben Brown motioned to grant an area variance to Article III, Section P. c. to Map 1 Lot 5A, located on Short Falls Road, to permit access to the subject property via minimal impact to a seasonal stream and Burnham Brook for a subdivision road as on submitted plan, subject to all state approvals, 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 any improvements to the area would increase all the property values.
2.  The granting of this variance would not be contrary to the public interest because the area is zoned for the intended use.
3. a. Since the following special conditions of the property make an area variance necessary in order to allow the development as designed because crossing the brook is the only feasible means of access to the property.
  b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because the landowner would need to purchase other property in which to access his current lot which is unreasonable.  There is no way to access the lots without crossing the water somewhere and this is a defined brook and not a large swamp.
4.  By granting this variance substantial justice would be done because the use is permitted in this zone and it would be an injustice to deny because there is no gain to the general public that would out way the injustice to the landowner.
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 spirit is to minimize the impact to the wetlands and this is an access that is environmentally sound which will have minimal impact.
Motion was seconded by Ed Meehan.  

Yes-David Dobson, Ben Brown, Ed Meehan
No-Steve MacCleery, Jeff Jordan

Motion carried 3-2.

Respectfully submitted,

Holly MacCleery, Secretary

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