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Board of Adjustment Minutes 11/08/2006
CHICHESTER BOARD OF ADJUSTMENT MINUTES
NOVEMBER 8, 2006

Case #206-Mark Blasko, Map 2 Lot 81,use/area variance to Article III, Section P. 4. to permit construction of batting cages within wetland & wetland buffer area.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; Ben Brown; Mark McIntosh; David Dobson.  (All will be voting members)  Alternate Lou Barker took the minutes.

The applicant submitted both a use and an area variance application because he was unsure which one the board would require.  The board unanimously voted to use the area variance application.

Applicant Mark Blasko and his partner Chuck Breton as well as engineer Anthony Costello presented the case.  Updated site plan was submitted.  This lot is on the corner of Route 4 & Bailey Road.  The Phase I proposal is for a mini-golf course, batting cage, and ice cream/snack bar.  The Phase II proposal would possibly be an indoor recreational facility but they are not ready for it yet.  They have already met with the Planning Board, Conservation Commission, DES, and abutters to come up with a plan that will make everyone happy.  This lot is an “L” shape with an existing building already on it with access from Bailey Road.  With the original plan the abutters weren’t happy with the buffer between their property and the parking lot as well as other issues.  They are now proposing to move the batting cages closer to Route 4 which will require them to fill in an existing small wetland area.  This will move the parking area and create a larger buffer for the abutters.  

Applicant met with Jocelyn Degler from the DES Wetlands Bureau and she stated that what they submitted was not an approval plan because there is buildable area in the back that can be used for the batting cages.  DES would look at the application again if they could show that the area was going to be used for something else then they would look at this type of wetland impact.  (Copy of meeting memo on file)  They now need an area variance before they can move on with the PB and DES.  They are scheduled to meet with the Conservation Commission on Nov. 13th to go over this proposal.

Planning Board member Stan Brehm stated that they had seen the original plan and had accepted their first application.  Since abutters had several concerns the applicant revised his plans which the PB has not seen or accepted yet.  Mr. Brehm felt this was a minor issue to fill the small area of wetlands.

The applicants made it clear to the BOA that they can’t move forward with the PB unless they receive a variance first.  If this request gets denied then they go back to the PB with the original design which the abutters were not happy with.  The original design did not require them to get a variance.  The overall concept has been before the PB, they are just trying to modify the project to make everyone happy.
The BOA added that by going forward with this variance request the applicant assumes the risk that he may need to come back to the board for another or different variance.  The application before them tonight is just for the construction of batting cages within the wetland & buffer area, not wetland crossing.  The board feels that it would be too much of an increase to the wetland area for the crossing, an additional 3800 sq. ft., for them to amend their application without proper notice to the abutters.  The BOA agreed to go forward with the application as submitted pertaining to the batting cages.

The applicants feel the proposed use would not diminish property values because all the noise, light and activity will be contained on the front lower part of the property with a large wooded buffer on the boundaries.  
This would not be contrary to the public interest because everything will be contained within their boundaries.
An area variance is necessary in order to allow the development as designed to avoid light and sound from spilling to abutters.  The only other option is to lower the entire parking lot on the original plan but there is ledge where the building is and would not be practical.
The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because all the other options looked at were unreasonable to the abutters.
This would do substantial justice because it allows them to use the commercial zone appropriately with minimal wetland impact.
The use is not contrary to the spirit of the ordinance because recreational use is permitted in wetlands anyway.  They are only requesting to impact about 1000 sq. ft. out of 2900 sq. ft. which was created artificially when leach field was built.
Letter and pictures from Christopher Danforth, Certified Wetland Scientist, were submitted.  (On file)  

Abutter Leslie Walker stated the applicant has been very good about their concerns and revising the plan.  The proposed project would keep noise and activity away from the homes.  She would like to see this approved.

Abutter Mike Cwikla is against the entire project because of more noise and traffic being generated on Bailey Road.

Abutters Diane & Bill Stevens were opposed to the first proposed plan but are more receptive to the new plan with the batting cages and parking being moved away from their boundary.  The applicant has been fair and forthcoming.

BOARD DISCUSSION
  There would not be a diminution in value of surrounding properties because of the small amount of wetlands being filled.
  This would not be contrary to the public interest because the plan as submitted this evening for Case #206, Map 2 Lot 81 allowing the wetlands to be filled and the location of the batting cages in this area mitigates the impact to abutters.
  Special conditions of the property that make an area variance necessary in order to allow the development as designed-existence of ledge and steep lands could be causing wetland saturation at this location on the property.
  Same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden-the undue financial burden of blasting ledge and lowering the parking lot.  Filling of the small area of wetlands is essentially the most cost effective alternative.
  Substantial justice would be done because this plan mitigates impacts to abutting residences.  
   The use contemplated by petitioner would not be contrary to the spirit of the ordinance because the filling of this wetland would not have a significant impact on town water resources according to the letter from Christopher Danforth that there is a question whether this is a functioning wetland.  Only 1 of 14 functions and values of wetland were identified.




MOTION
David Dobson moved to grant the request of Mark Blasko, Map 2 Lot 81, for an area variance to Article III, Section P. 4. to permit construction of batting cages within wetlands & wetland buffer approximately 1150 sq. ft. of wetland impacts 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 small filling in of this wetland of limited functionality is not going to diminish values of abutting properties.
2.  The granting of this variance would not be contrary to the public interest because the plan as submitted for Case #206, Map 2 Lot 81, allowing the wetlands to be filled and location of the batting cages in this area mitigates the impact to abutters.
3.a. Since the following special conditions of the property make an area variance necessary in order to allow the development as designed- existence of ledge and steep lands could be causing wetlands saturation at this location on the property.  The special condition is that this project intrusively abuts the residential area and the lessoning of impact to abutters out weighs minimal impact to the wetlands.
 b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because of the undue financial burden of blasting ledge and lowering parking lot.  This is essentially the most cost effective alternative.
4.  By granting this variance substantial justice would be done because this plan mitigates impacts to abutting residences.
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 filling of this wetland would not have a significant impact on the town water resources according to the letter from Christopher Danforth that there is a question whether this is a functioning wetland.  Only 1 of 14 functions and values of wetland were identified.
Motion was seconded by Ben Brown.

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

Motion carries 5-0.  Request is granted.

Respectfully submitted,


Holly MacCleery, Secretary


Edward Meehan, Chairman




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