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Board of Adjustment Minutes 06/28/2006
CHICHESTER BOARD OF ADJUSTMENT MINUTES
JUNE 28, 2006

Case #199-Joseph Austin, Bruce & Elaine Gatchell/Chichester Condominium Corp. requesting a Use Variance to Article III, L. Section II to permit the issuance of up to 10 building permits per year for their development on Map 3 Lot 68B located on Route 4.
Members Present:  Ed Meehan, Chairman; Stephen MacCleery, ex-offico; Ben Brown; Mark McIntosh; David Dobson; Tom Wainwright.
Voting Members:  Ed Meehan, Steve MacCleery, Ben Brown, Mark McIntosh, David Dobson.

Applicant was represented by Attn. Patrick McNicholas who feels that neither the use or area variance application fits this situation for the growth management ordinance.  This is a 17 unit, over 55, condominium project which was approved by the Planning Board last year.  They wish to obtain a variance to the growth ordinance which would allow them to receive up to 10 building permits per year so the project could be completed in a shorter period of time. Currently, the zoning ordinance allows 12 permits per year with only 3 per a single applicant in a calendar year.  By those standards this project could take up to 6 years to be completed, which they feel are too restrictive.  The have seen the agreement between the town and the Malaney development which allows them to use up to 6 of the 12 permits.  
They feel the proposed use would not diminish property values because the zone is residential and they are not asking for any change in what would be allowed, just additional permits per year to allow the project to be built sooner.  Six units versus three would not have a negative effect to property values.
This variance would not be contrary to the public interest because the town doesn’t have an over 55 project with a private road where there is less of a demand on increased town services relative to income generated by the increased tax basis.  
Denial would result in unnecessary hardship to the owner because of the zoning restriction because there is no rational basis to distinguish between this project which would take 3-6 years to fully construct and utilize all existing town permits and the same project on another parcel that was 7 acres larger that could be constructed in 2 years.  The 1.39% annual growth rate is too restrictive on its face.  The number is too low when a larger number was given to settle another case.
They also state that the town recognizes the distinctions in over 55 projects as evidenced by the changes to the GMO in 2006.  This project would be singled out in the over 55 area as not qualifying for additional permits.
This variance would not injure the public or private rights of others since there are no other approved over 55 housing projects in town.
Substantial justice would be done because the town would be well served by its first over 55 housing project to the benefit of its older residents.
The use is not contrary to the spirit of the ordinance because the negative aspects of growth are minimized and the positive aspects maximized by the earlier completion of the over 55 residences in the project.  If the over 55 developments are going to be treated separately, they shouldn’t be treated unfairly.  
Abutters Claire Merrill and Shirley Waters had no comments at this time.

Joe Austin added that each lot was about _ an acre.  The resident will only own the footprint which will have limited access around the building. The association hires someone to take care of the common area.  Each unit will be about 50’ square and the remainder of the 13 acres is common area.  They would not be able to get 17 units on this lot under the present ordinance.  They feel they are entitled to more permits because of the aspect of the new open space conservation ordinance.  There is no question that this type of project could not be built on less than 35 acres.

The board pointed out that this project has already been approved with the zoning that only allows 3 permits per year per developer.  They also asked if children would be allowed to live in this project to which the applicant said no.

Steve explained to the board that the town was taken to court over the growth management ordinance and a settlement was agreed upon with Mr. Mulaney that would allow him to build up to 6 dwellings in the development.  They had to be two different entities, 3 permits each entity.  Mr. Mulaney could build 3 houses and a builder could buy 3 lots and build 3 houses, Mr. Mulaney himself could not build 6 houses in one year.  This settlement was only for that development.  There is no doubt that it puts other residents at a disadvantage.  The current building permits are spoken for through the next 3 years.  This project was approved under multi-family uses, such as condominiums.  Because this is an elderly housing project they would like to be allowed to get 10 additional permits beyond the 12 that the town currently allows.  They want it to be fair according to open space and elderly housing.  The open space zoning came into effect after this project was approved.  They need 15 permits in all to complete the development.  The road and utilities need to be done before any permits can be accessed.

BOARD DISCUSSION

The board agreed that they could grant this request as stated, deny it, or compromise some where in between.  The applicant currently has 3 permits for 2007, 3 permits for 2008 and has permission to build the model home which no one is allowed to live in at this time.  A total of 15 permits are needed for this project.  There was discussion about granting 3 permits for 2006, 6 permits for 2007, and 6 permits for 2008.

Board agreed there would not be a diminution in surrounding property values because this would allow the project to be completed in less time and have less impact to the neighborhood because construction would be over and done with.

Steve felt this variance would be contrary to the public interest because the public voted a growth ordinance to limit growth.  This project was developed with full knowledge of the growth ordinance.  Ben added that where the town has put exceptions to the growth ord. it hasn’t been just for over 55 developments, it has been for open space and over 55 even in the new zoning.  David doesn’t think that was taken into consideration with the Mulaney agreement.  Ben didn’t feel that the agreement gave that case any extra permits.  If an entity is no longer a subdivision they are not doing anything else different except perhaps going to the head of the line.  Steve wanted to make it clear that the settlement was a court settlement; zoning was not changed because of the decision.  That settlement should not have any bearing on this case.  Some members have a problem with the fairness issue.  The purpose of the growth management ord. is to allow for infrastructure to be built without a huge impact to town services before they are able to handle it.  
Mr. Austin was asked if they were subject to the impact ordinance.  He said the Regional Planning Comm. came up with figures for condos.  On the plat it states condominium development and they would be assessed $1600 per unit.

David feels this would not be contrary to public interest because of income generated by the increased tax base and the lesser impact on town services than that of a single family dwelling.

Tom felt the variance would not injure the right of others since it is in a commercial zone where traffic is already being generated.  Mark stated that the town is entering a new field with condos and 55+.

Steve commented in looking at the uniqueness of the property, now that the project has received approval from the PB, if the applicant had come to the BOA after discussion phase and said the zoning was too restrictive that would be one thing.  Present town zoning was used when approval was given which included the growth management ord.  They felt this was a feasible project, now they want to get as many permits as they can, where is the uniqueness?  Ben added that there is nothing special about this property in its environment that makes it a hardship for them.  The acreage requirements are not met to allow 10 permits in open space conservation.  It seems they are picking and choosing different parts of the zoning to their advantage.  It fit the zoning at the time is was proposed, how can our zoning be unfair when this particular development doesn’t have anywhere near the open space that it should have by the present zoning.

Just because this is an over 55 development it doesn’t make the property unique.  Ben feels that if the board can’t find that this property is unique, then granting the variance on this piece of property would require the BOA to grant a variance on every property and that would frustrate the purpose of this ordinance.  This project was crafted to fit our zoning under Art. II, Sec. D. t. multi-family uses.  The original variance granted to this property was to allow Mr. Austin to cross wetlands to access his current residence from Route 4 which was an area variance.  Uniqueness of the property did not have to be established.  It was questioned if the board should be looking at the uniqueness of the project or the property.  The application clearly states “the unique setting of the property in its environment.”  The applicant is now using the new zoning as a reason why the BOA should grant their request.  They have created their own hardship because they received approval without coming to the BOA for a variance to the growth ord. in the first place.

The board questions if the applicant needs to be here because of the grey area pertaining to a use variance versus an area variance in relation to the growth management ord. and the limit of building permits, not the property.  Steve feels they should be challenging the growth ord. in court unless the BOA is directed differently from town council.
Attn. McNicholas clarified that the only way the applicant can go to Superior Court is to get denied by the BOA first.  This case doesn’t fit the criteria under the current BOA standards.  There hasn’t been a Supreme Court case on growth that gives you the criteria needed.

Ben feels by granting the variance substantial justice would be done because denial of the variance would be an injustice, it is not out weighed by a gain to the general public.

Steve stated that the use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because the petitioner created this development with full knowledge of current zoning and felt this was a viable project and now wants to change the rules.

MOTION

Ben Brown moved to deny the request for a use variance requested by Chichester Condominium Corp. to Article III, L. Section II to permit the issuance of up to 10 building permits per year for their development on Map 3 Lot 68B 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 allow the project to be completed in less time and have less impact to the town because construction would be over in a shorter length of time.
2.  The granting of this variance would be contrary to the public interest because the public has voted a growth ordinance to limit growth.  This project was approved with the growth ordinance in place.
3.a. Since the zoning restriction as applied to the property does not interfere with the reasonable use of the property, considering the unique setting of the property in its environment such that the board feels there is nothing unique about the property.
  b. There is a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property because the project was crafted to fit our zoning under Article II, Section D. t. multi-family uses.  This property is not unique and if we can’t find that the property is unique, granting the variance would require the BOA to grant a variance on every property and that would frustrate the purpose of this ordinance.
 c. That the variance would not injure the public or private right of others since it is in a commercial zone where traffic is already being generated.
4.  By granting this variance substantial justice would be done because denying the variance does not provide any offsetting gain to the general public.
5.  The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because with full knowledge of the current zoning the petitioner created this development and felt this was a viable project and now wants to change the rules.
Motion was seconded by Mark McIntosh.
VOTE ON MOTION

David Dobson – Yes
Mark McIntosh – Yes
Ed Meehan – Yes
Steve MacCleery – Yes
Ben Brown – Yes

Motion carried, request is denied.

The board discussed the possibility of adding to the Rules of Procedure about having plans, reports etc. reviewed by town engineer at the expense of the applicant.  Also, that the BOA minutes are reviewed by board members for any error or omissions before being signed by the secretary and chairman and then posted.  This will be discussed again at the next meeting on July 12, 2006.

Respectfully submitted,


Holly MacCleery, Secretary


Edward Meehan, Chairman

CHICHESTER BOARD OF ADJUSTMENT
NOTICE OF DECISION
June 28, 2006

Case #199 - Ben Brown moved to deny the request for a use variance requested by Chichester Condominium Corp. to Article III, L. Section II to permit the issuance of up to 10 building permits per year for their development on Map 3 Lot 68B 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 allow the project to be completed in less time and have less impact to the town because construction would be over in a shorter length of time.
2.  The granting of this variance would be contrary to the public interest because the public has voted a growth ordinance to limit growth.  This project was approved with the growth ordinance in place.
3.a. Since the zoning restriction as applied to the property does not interfere with the reasonable use of the property, considering the unique setting of the property in its environment such that the board feels there is nothing unique about the property.
  b. There is a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property because the project was crafted to fit our zoning under Article II, Section D. t. multi-family uses.  This property is not unique and if we can’t find that the property is unique, granting the variance would require the BOA to grant a variance on every property and that would frustrate the purpose of this ordinance.
 c. That the variance would not injure the public or private right of others since it is in a commercial zone where traffic is already being generated.
4.  By granting this variance substantial justice would be done because denying the variance does not provide any offsetting gain to the general public.
5.  The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because with full knowledge of the current zoning the petitioner created this development and felt this was a viable project and now wants to change the rules.
Motion was seconded by Mark McIntosh.  Motion carried 5-0.


                                                
                                                _______________________________________
                                                Edward Meehan, Chairman


                                                _______________________________________
                                                Date






Note:  The Selectmen, any party to the action or any person directly affected has a right to appeal this decision within 30 days.  See NHRSA, Chapter 677, available at the Selectmen’s office.  This notice has been placed on file and made available for public inspection in the records of the BOA on July 3, 2006.  Copies of this notice have been distributed to the applicant, Planning Board, Board of Selectmen, and Town Clerk.



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