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Board of Adjustment Minutes 08/02/2006
CHICHESTER BOARD OF ADJUSTMENT MINUTES
August 2, 2006

Case #201 Map 2 Lot 24-Ann Fournier requesting a use variance to Article II, Section D-Residential to permit continued use of a single family dwelling on the same lot as a two family dwelling with 475’ frontage & 37+ acres.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; David Dobson; Thomas Wainwright; Mark McIntosh; Ben Brown.
Voting:  Ed Meehan; David Dobson; Tom Wainwright; Mark McIntosh; Ben Brown.

Applicant Ann Fournier, Gary Kerr, Selectman Richard DeBold, Joe Austin.

Ann Fournier stated that the trailer in question has been in its present location for 44 years with its own septic and water and she would like to continue to have the use of it until she dies.  She lives in the main farm house, which has an apartment, and rents out rooms as well to help with finances.  She also needs to rent out the trailer because she needs help keeping up the property.  There was never an issue with the trailer until there was a fire, repairs needed to be done, and it was brought to the attention of a previous Board of Selectmen.

Selectman DeBold added that this case is currently in litigation.  They have been trying to work with Mrs. Fournier and have gone to mediation.  

Mrs. Fournier added that she was advised to come before the BOA and ask for a variance to get permission to have the trailer stay where it is until she dies.  David Dobson asked how the trailer got in its present location in the first place.  She said that in 1964 Raymond Towle put one there and it was approved by the Selectmen at the time, which her in-laws lived in.  After Leon died in 1986 his son took the trailer off the lot and she got permission from the Selectmen to put another trailer in its place.  In 1992 she was told this was a substandard lot.  The “use” of the trailer is in dispute.  The lot previously had two deeds but a previous BOS urged her to have all the property on one deed, which she did.

Richard DeBold supplied a copy of an agreement signed by Ann Fournier and the BOS dated 1/21/92 stating that an occupancy permit would be given and limited to allow her and her present husband to occupy the trailer during their joint lifetimes and then removed after their passing.  (Copy on file)  Mrs. Fournier stated that the Selectmen were under the assumption that she would be living in the trailer which she never had any intention of doing.

Richard DeBold further added that through mediation a tentative agreement had been reached that Mrs. Fournier was going to make an effort to go before the Planning Board by May 4, 2006 to subdivide the property so the trailer would have its own lot.  There is plenty of acreage just not quite enough frontage.  Mrs. Fournier said she had agreed to subdivide until she realized she needs 300’ frontage because of the 2-family dwelling.  She would not have enough frontage for the trailer to have its own lot.  She does not want to lock in the back acreage.  Her daughter would not be able to give her additional frontage either.

Mark McIntosh wanted to clarify why the current BOS wanted this lot to become two at this time.  Richard DeBold said that this was previously a 150x150 substandard lot and a previous BOS wanted her to have one deed and make the entire property one lot.  The current BOS now has a zoning violation before them, which they need to address.  Mrs. Fournier was told that a separate lot needed to be created for the trailer and that a variance could be sought for the lack of frontage.  According to the Assented-To Motion To Stay Action, dated 1/17/06, Mrs. Fournier stated that she agreed to diligently pursue a zoning resolution to the property and file a subdivision plan with the PB on or before 5/4/06, which she has not done.  (Copy on file)

Ed Meehan said by looking at the signed agreement, Mrs. Fournier needs to live in the trailer, which she isn’t.  She is asking for the trailer to remain where it is, being used as it is, until she dies.  Mrs. Fournier said that there was another signed agreement with a previous BOS giving her permission to “use” the trailer not “occupy” it.  There is no such document in her BOS file nor could she submit one.

Tom Wainwright agreed that the trailer needed to be removed after Mr. Towle’s death if it did not comply with zoning and Mrs. Fournier wasn’t living in it.  He asked her what she had been doing with the trailer since 1986 and she stated, renting it.  The current occupant has been living there for 1 _ years.  It was clarified by the Selectmen that zoning was enacted in 1962 and the trailer was put on the property in 1964.

Richard DeBold informed the BOA that in her BOS file there is a handwritten not signed by Selectmen Earl Weir, Ed Frekey, & Walter Sanborn dated 6/9/87 in reference to Map 2 Lot 22, this appears to be illegally subdivided in 1967.  The board has required of the current owner, Ann Fournier that state septic approval be done prior to further use of land.  Currently land has trailer on it that was used be Leon Towle until his death.  It has septic but no well.  There is also a copy of the Selectmen’s minutes of Dec. 1988 stating that Ann Fournier appeared before the BOS as a direct cease & desist order which had been issued to her on 11/8/88.  Since the agreed upon terms had not been met, she was told again what was required of her.  The land that the trailer is on will be deeded back to the farm so that this will no longer be a substandard lot.  She will obtain a building permit from the BI and get appropriate water supply and pollution approvals from the state.  The 11/8/88 letter from the BOS to Mrs. Fournier states that it has come to their attention that she has installed and is occupying a mobile home on the property without a building or occupancy permit.  She was to cease all construction work and vacate the premises immediately.  Mr. DeBold feels this was the beginning of the process that led up to the 1991 agreement.

BOARD DISCUSSION
Ben Brown asked if the variance to the appropriate section of zoning is being requested.  It seems the BOA is addressing the use of a mobile home.  He feels that the application fits better under Article III, Section C. Trailers, Mobile Homes.  The applicant agreed to change her application request to the above Article & Section which was dated and initialed.  

The BOA agreed that this application is being treated as a rental property which the trailer has been used as for several years.  They also agreed that there needs to be some very special conditions that allow this variance to be granted where other requests could be denied.

David Dobson feels that the applicant has other options available to her that have not been pursued.  

   There would not be a diminution in value to surrounding properties because the trailer has been there for so long and it would have decreased property values long before now.
  Granting of the variance would be contrary to the public interest because it goes against previous and current zoning.
  The zoning restriction as applied to the property does not interfere with the reasonable use of the property given how the property is being used and can be used in the future; the occupation of the trailer does not impact that usage.
  There is a fair and substantial relationship between the general purposes of the zoning and the specific restriction on the property because the purpose of the zoning is to allow elderly relatives to occupy trailers/mobile homes but not non-relatives.
  The variance would injure the public or private rights of others considering the use that it is being used for that goes against our present zoning.  It would not injure the public/private rights because the use does not create a private or public nuisance.
   Substantial justice would not be done by granting the variance because the owner still has additional options that can be pursued.  The loss of rental property would impact the applicant but not the property.
  The use contemplated by petitioner would be contrary to the spirit of the ordinance because the ordinance is very clear that this is for the purpose of elderly housing for relations and not as a rental property.

After further discussion the board agreed to strike all references to rental property from the motion.

MOTION
Ben Brown moved to deny the request of Ann Fournier to Article III, Section C. Trailers, Mobile Homes on Map 2 Lot 24 for the continued use of a single family dwelling which is on the same lot as a two family dwelling with 475’ frontage & 37+ acres for the following reasons:
1.  There would not be a diminution in value of surrounding properties as the result of the granting of this variance because the trailer has been there for so long, it would have decreased property values long before now.
2.  The granting of this variance would be contrary to the public interest because it goes against previous and current zoning.
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 given how the property is being used and can be used in the future, the occupation of the trailer does not impact that usage.
  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 purpose of the zoning is to allow elderly relatives to occupy trailers/mobile homes but not non relatives.
  c. That the variance would injure the public or private rights of others considering the use that it is being used for that goes against our present zoning.
4.  By granting this variance substantial justice would not be done because the owner still has additional options that can be pursued.
5.  The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because the ordinance is very clear that this is for the purpose of elderly housing for relations and not non relations.
Tom Wainwright seconded the motion.

VOTE ON THE MOTION
Ben Brown – Yes
Tom Wainwright – Yes
Ed Meehan – Yes
Mark McIntosh – Yes
David Dobson – Yes
Motion carries 5-0.  Request is denied.

Respectfully submitted,


Holly MacCleery, Secretary



Edward Meehan, Chairman

CHICHESTER BOARD OF ADJUSTMENT
NOTICE OF DECISION
AUGUST 2, 2006

Case #201 - Ben Brown moved to deny the request of Ann Fournier to Article III, Section C. Trailers, Mobile Homes on Map 2 Lot 24 for the continued use of a single family dwelling which is on the same lot as a two family dwelling with 475’ frontage & 37+ acres for the following reasons:
1.  There would not be a diminution in value of surrounding properties as the result of the granting of this variance because the trailer has been there for so long, it would have decreased property values long before now.
2.  The granting of this variance would be contrary to the public interest because it goes against previous and current zoning.
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 given how the property is being used and can be used in the future, the occupation of the trailer does not impact that usage.
  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 purpose of the zoning is to allow elderly relatives to occupy trailers/mobile homes but not non relatives.
  c. That the variance would injure the public or private rights of others considering the use that it is being used for that goes against our present zoning.
4.  By granting this variance substantial justice would not be done because the owner still has additional options that can be pursued.
5.  The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because the ordinance is very clear that this is for the purpose of elderly housing for relations and not non relations.
Tom Wainwright seconded the motion.  Motion carried 5-0.  Request denied.



                                                ____________________________________
                                                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 Town Hall.  This notice has been placed on file and made available for public inspection in the records of the BOA on 8/7/06.  Copies of this notice have been distributed to the applicant, Planning Board, Selectmen, Town Clerk and Building Inspector.








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