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Board of Adjustment Minutes 11/16/2005
CHICHESTER BOARD OF ADJUSTMENT MINUTES
NOVEMBER 16, 2005

Case #190 Tri-Share Development, LLC Map 4 Lot 165, located on Route 4.  Owner of record One Time Properties, LLC.  Applicant is requesting an area variance to Article III, Section P. c. to permit “land change” between 100’ and 50’ of wetlands.  The variance will allow the construction of a proposed commercial project commensurate to the Commercial Village District.

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

Representing the applicant:  Chris Stuart; Friedrich Moeckel, Attorney Bruce Gilday, Certified Wetland & Soil Scientist.

Chris Stuart stated he needed to have relief from the wetland ordinance in order to have businesses on the property that would fit the new Village District zoning.  Plans were presented to the board as to his intentions.  He spoke of having a bank, a light industrial building and another commercial type building on the property.  He would like to move the existing curb cut on Route 4 closer to the existing Hess station.  He cannot gain access to the property with the 100’ setback limitation.  He feels the land is basically unusable without a variance.  He also feels that this use will not have an impact on the wetlands and he will maintain a 50’ buffer.

Bruce Gilday added that the site has been clear cut within the last 10 years.  The lot has ruts created by the tree removal and top soil has been removed.  The lot is not pleasing to look at.  40% of the lot has some natural forest remaining.  Soils have been mapped out as Gloucester (sandy loam) soil series, which are well drained uplands and not wetland soils.  There are 3 types of soils on the property: Montauk (fine sandy loam) soil series; Woodbridge soil series that is moderately well drained, glacial till, with a hardpan present; and Ridgebury soil series that is poorly drained, glacial till, with a hardpan present.  (Report on file)  In 1999 Holden Engineering did a landscape plan for manufacturing homes but a certification of a wetland scientist certifying this lot in the past has not been located.  There is no flood flow potential on this lot and no deer moose etc. evidence was sighted.  Songbirds were witnessed on-site and he feels that these wetlands can be beautified.  There is a 6% moderate slope from front to back of the lot.  There are also two culverts that are not maintained and functioning properly.  Mr. Gilday feels the wetlands on this property are man made and the value and functions of them can be raised with this proposed project.

There was other discussion about the songbirds and other wildlife that abutters have witnessed.  They raised concerns about their habitat being disturbed.

Ed Meehan asked for clarification about the jurisdictional wetlands and the comment about them being man made due to the logging.  Bruce stated again that these were man made and not natural occurring wetlands.

There was more discussion from concerned citizens about the wildlife.  It was mentioned that the snow mobile club, in years past, cut down trees behind area homes to make their trail wider.  The trees on this lot were cut about 5 years ago.  It was asked if the lack of wildlife on the property were due to the run off.  They would like to see some safe guards and assurances that the drainage won’t be harmed.  It was explained that after the BOA’s decision, if it were favorable, the applicant would then go on to the Planning Board where all these concerns would be addressed.  The applicant will be confined by DES regulations.

Steve asked Jeff Andrews from the Conservation Commission if there was a copy of the tax map with an over lay of the commercial district showing soil types.  Jeff stated that they did not have a map that is specific for soils.  The current tax amp shows open space wetlands that are close to this lot but it can’t be determined if it continues onto this lot.  Mr. Gilday stated he had the 1960 and 1990 soil maps and that you have to take the understanding of the minimal area.

Ed questioned the use of culverts and the criteria.  Would the state put them in every so many feet?  Chris Stuart replied that when the state does highway design a study is done on water shed plus improvements.  Culverts would not be put in if they didn’t feel they were needed.

Chris continued to state that this project would be enhancing the wetland zoning that was enacted by the town.  If the variance is not granted the lot will stay as it is, it will not be attractive, and it will be more of a determent to the community.  They are focusing on the village district and small business which has access to Route 4.  The value of the land will go up if it can be developed commercially.  Partial relief will not help anything.  The dry land is in the back of the property which doesn’t make it financially feasible.  A reduction in the setback is needed or lot is virtually useless.  He does not feel that a 50’ setback will impact the wetland and they want to work with the CC on this project.  He further stated that the state has no setback buffers.

It was asked if this plan had gone before the Planning Board yet.  The answer was no.  Fritz Moeckel explained that traditionally they would go before the PB first and then seek a variance but since this lot can’t be built upon without a variance it was financially feasible to come before the BOA first.

It was mentioned that this project is in its beginning stages.  A road width of 24’ was mentioned but could be made narrower.  Also plantings of shrubs, trees, etc. are being planned to enhance the site and the wetland buffer within a 25’ area.

Jeff Andrews from the CC added that these wetlands weren’t considered significant wetlands.  This lot is not a critical resource for the town.
Fritz stated that specific findings need to be found to grant this variance.  The BOA should consider the zoning in its entirety.  This property sits in the Village District projects that are consistent with New England.  It would cost the landowner three quarters of a million dollars just to build a road to the buildable part of the lot.  A 50’ buffer on this site won’t have a negative impact on the lot.  The diminution will occur if a variance is denied.  The wetlands on the property are unique and the special conditions of the property are the wetlands.  The buffer makes this lot unbuildable.  You need to weigh the gain to the public.  It is now an eye sore, the songbirds are there because it is a vacant lot.  This request is consistent with the spirit of the ordinance.  

BOARD DISCUSSION
Lou brought up the fact that the applicant hadn’t been before the Planning Board yet.  Ben said they are aware of the ordinance and they are starting with the BOA first.  They have spent money already with a soil scientist survey.  No where in the zoning or BOA Handbook does it state that an applicant has to go before the PB before requesting a variance from the BOA.

It was felt that this would not be a diminution in surrounding property values; it would in fact probably increase property values for the entire section of town.

Jeff Jordan had a concern about the mention of poor logging practices in the applicant’s reasonings.  This is a highly visible lot on Route 4 and the state would not allow that to happen.  He doesn’t feel that these are man made wetlands.  He feels there were some wetlands but the logging didn’t create the problem.

Ed feels that the 100’ setback has made the lot virtually useless.  There is nothing else they can do, other than a variance, to use the property.    He also feels that substantial justice would be done because there are no alternatives because of the 100’ setback.

Jeff feels that granting this variance would be contrary to the spirit of the ordinance because variances granted in the past has been a small change and this is a huge change.  

Steve felt the width of the roads should be restricted to 20’ if we are looking at a minimal impact.  Lou felt that this was a PB issue and leave the 24’ road as is.  Drainage and swales should also be considered by the PB.  Ed still feels that these are not true wetlands.

MOTION
Ben Brown motioned to grant an area variance to Article III, Section P. c. to Map 4 Lot 165, located on Route 4, to permit “land change” between 100’ and 50’ of wetlands.  The variance will allow the construction of a proposed commercial project commensurate to the Commercial Village District, 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 the new development will add appeal to the site, compliment the business in the area and add to the tax base.
2.  The granting of this variance would not be contrary to the public interest because the public has an interest in developing the property since the property sits at the center of the Commercial Village District and a literal application of the wetlands ordinance makes development on the property impossible.  Thus, a literal application of the wetlands ordinance conflicts with the intent and goals of the Commercial Village District.  Also, the development of the proposed retail space and commercial flex space will compliment the Commercial Village District.  By granting a variance to allow land change between 100’ and 50’ of wetlands on the property, the public achieves its goal of allowing development in the newly created Commercial Village District.
Granting a variance is also not contrary to the public interest because the wetlands on the property are truly unique.  The wetlands on the property are artificial.  Unlike naturally occurring wetlands, portions of the wetlands on the property are the result of poor land management practices.  These poor land management practices long ago created unnatural ruts and other disturbances that altered the naturally occurring wetlands.  For this reason, granting a variance is not contrary to the public’s interest because the property will still employ a 50’ buffer to wetlands.  The poorly drained wetlands will be adequately protected with a 50’ buffer.
3. a. Since the following special conditions of the property make an area variance necessary in order to allow the development as designed; the location of the wetlands on the property causes an overlap in the setback area which does not allow for the usable area on the property, and therefore makes the property worthless.  The property sits in the Commercial Village District and the proposed development is permitted.  Thus, from a practical perspective, an area variance is necessary to engage in a permitted use.
   b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because due to the location of the pockets of wetlands, development is not possible by any other means than to develop between the wetlands in the 100’ setback area.  A 50’ setback will be maintained and property drainage methods will be used to protect the wetlands.  By not obtaining the variance, the property cannot be developed and will be, therefore, worthless.  Obviously this is a significant burden on the owner.
4.  By granting this variance substantial justice would be done because it would relieve the financial burden on the owner, compliment the Commercial Village District, add to the Town’s tax base, and still protect the wetlands.  By denying the variance, the property remains a vacant lot, useless to the owner and to the Town.  By denying a variance, the Town effectively frustrates the purpose and intent of the Commercial Village District.
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 wetlands will still be protected.  The development benefits the owner and the community.  Granting a variance also allows the property to be used in the spirit of the Commercial Village District.
David Dobson seconded the motion.

Jeff was still concerned with the logging issue.  Mr. Gilday explained that the stumping of trees with bulldozers on the property caused the problem.  It’s not just the cutting and clearing, it was the entire process in which it was done.  Jeff feels it is not fair to say the wetlands were created by the logging operation without ample proof.  Bruce further added that with the excavation, natural resources were taken and top soil was disturbed.
VOTE ON MOTION
Yes-Ben Brown
Yes-David Dobson
Yes-Ed Meehan
Yes- Steve MacCleery
No-Jeff Jordan

Motion carried 4-1.

Respectfully submitted,



Holly MacCleery, Secretary




















made wetlands.  He feels there were some wetlands but the logging didn’t create the problem.

Ed feels that the 100’ setback has made the lot virtually useless.  There is nothing else they can do, other than a variance, to use the property.    He also feels that substantial justice would be done because there are no alternatives because of the 100’ setback.

Jeff feels that granting this variance would be contrary to the spirit of the ordinance because variances granted in the past has been a small change and this is a huge change.  

Steve felt the width of the roads should be restricted to 20’ if we are looking at a minimal impact.  Lou felt that this was a PB issue and leave the 24’ road as is.  Drainage and swales should also be considered by the PB.  Ed still feels that these are not true wetlands.

MOTION
Ben Brown motioned to grant an area variance to Article III, Section P. c. to Map 4 Lot 165, located on Route 4, to permit “land change” between 100’ and 50’ of wetlands.  The variance will allow the construction of a proposed commercial project commensurate to the Commercial Village District, 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 the new development will add appeal to the site, compliment the business in the area and add to the tax base.
2.  The granting of this variance would not be contrary to the public interest because the public has an interest in developing the property since the property sits at the center of the Commercial Village District and a literal application of the wetlands ordinance makes development on the property impossible.  Thus, a literal application of the wetlands ordinance conflicts with the intent and goals of the Commercial Village District.  Also, the development of the proposed retail space and commercial flex space will compliment the Commercial Village District.  By granting a variance to allow land change between 100’ and 50’ of wetlands on the property, the public achieves its goal of allowing development in the newly created Commercial Village District.
Granting a variance is also not contrary to the public interest because the wetlands on the property are truly unique.  The wetlands on the property are artificial.  Unlike naturally occurring wetlands, portions of the wetlands on the property are the result of poor land management practices.  These poor land management practices long ago created unnatural ruts and other disturbances that altered the naturally occurring wetlands.  For this reason, granting a variance is not contrary to the public’s interest because the property will still employ a 50’ buffer to wetlands.  The poorly drained wetlands will be adequately protected with a 50’ buffer.
3. a. Since the following special conditions of the property make an area variance necessary in order to allow the development as designed; the location of the wetlands on the property causes an overlap in the setback area which does not allow for the usable area on the property, and therefore makes the property worthless.  The property sits in the Commercial Village District and the proposed development is permitted.  Thus, from a practical perspective, an area variance is necessary to engage in a permitted use.
   b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because due to the location of the pockets of wetlands, development is not possible by any other means than to develop between the wetlands in the 100’ setback area.  A 50’ setback will be maintained and property drainage methods will be used to protect the wetlands.  By not obtaining the variance, the property cannot be developed and will be, therefore, worthless.  Obviously this is a significant burden on the owner.
4.  By granting this variance substantial justice would be done because it would relieve the financial burden on the owner, compliment the Commercial Village District, add to the Town’s tax base, and still protect the wetlands.  By denying the variance, the property remains a vacant lot, useless to the owner and to the Town.  By denying a variance, the Town effectively frustrates the purpose and intent of the Commercial Village District.
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 wetlands will still be protected.  The development benefits the owner and the community.  Granting a variance also allows the property to be used in the spirit of the Commercial Village District.
David Dobson seconded the motion.

Jeff was still concerned with the logging issue.  Mr. Gilday explained that the stumping of trees with bulldozers on the property caused the problem.  It’s not just the cutting and clearing, it was the entire process in which it was done.  Jeff feels it is not fair to say the wetlands were created by the logging operation without ample proof.  Bruce further added that with the excavation, natural resources were taken and top soil was disturbed.
VOTE ON MOTION
Yes-Ben Brown
Yes-David Dobson
Yes-Ed Meehan
Yes- Steve MacCleery
No-Jeff Jordan

Motion carried 4-1.

Respectfully submitted,



Holly MacCleery, Secretary












































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