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Board of Adjustment Minutes 05/23/2007
CHICHESTER BOARD OF ADJUSTMENT MINUTES
MAY 23, 2007

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

Continuance of Case #209-Brent Moses, Map 2 Lots 57A & 57B requesting an area variance to Article II, Section D-RA for a lot line adjustment to permit the reduction of a non-conforming lot with an area of 4.615 acres to an area of 4.17 acres.  Lots are located on Horse Corner Road.

Ed Meehan informed the board that he had received a letter from town council, Barton Mayer, pertaining to their question about the need for a variance as well as other concerns they had.  (Letter on file)

It was moved and seconded to go into non-public session to discuss client attorney privileged information according to RSA 91A:3, II.  After reading through RSA 91A:3 and much discussion, it was determined that client attorney information was not a consideration to go into non-public session since this case is not in litigation.  Both motion and second was rescinded, meeting will stay public.

It is town council’s opinion that the applicant needs to prove that a variance is needed before the BOA can grant one.  Ed Meehan also spoke with town council about the board’s concerns over the phone.  It appeared that Bart Mayer was not too familiar with our zoning as he asked if our zoning was based on soil types.  He was more focused on the soil type of the lots and did not answer the questions about “grandfathering”, lot of record status or self created hardship.  Bart was adamant about not making a non-conforming lot more non-conforming.

Ed also spoke with Chris Northrup from the NH Office of Energy & Planning who was very familiar with our zoning.  Under Article III, Section E. I. which states, “Where a lot of record at the time of passage of this ordinance does not conform to the area and frontage requirements, such lot may be occupied by any use permitted by this ordinance”, Mr. Northrup’s opinion is a non-conforming lot that is a lot of record wouldn’t need a variance and would not lose its lot of record status.  He feels that the Planning Board has the authority to grant the lot line adjustment.

In other words, a lot line adjustment to a lot of record does not make the lot lose its lot of record status, in Mr. Northrup’s opinion.  You still have to adhere to setbacks and other zoning requirements.

Brent Moses stated that at his last Planning Board meeting Stan Brehm said he would make a recommendation to the BOA about his intent and that this could probably be taken care of without attending a BOA meeting.  From the beginning the PB didn’t know if they could take care of the lot line adjustment or if Mr. Moses would need to go to the BOA.  

The BOA received a letter from the PB dated 4/6/07 stating they had a discussion with town council and it is the opinion of the town that any change to size of a non-conforming or substandard lot would need a variance granted from the BOA.  It also said that if the lot line adjustment is made without changing the acreage, a variance isn’t needed. (On file)

At the previous BOA meetings, uniqueness of the lot was mentioned.  Steve MacCleery felt that the uniqueness is that both lots are lots of record and by increasing the road frontage on the smaller lot, both lots would then comply with the minimum frontage requirements.  Mr. Moses said he was decreasing one lot from 345’ to 300’ and the other lot would be increasing frontage of 45’ for easier access because of the slope.  The further downhill you go the more damming the slope becomes.  Both lots currently meet the minimum frontage requirement so the uniqueness does not apply.  Are they unique because they are substandard lots of record?

Mr. Moses added that he already has two driveway permits and has walked the area with the road agent.  There is some leeway to move the driveway but not much because of the slope if he is not able to do the lot line adjustment.  Mr. Moses further added that Peter Schauer tested the soils and they are agricultural soils.  He is not contesting his findings.

The board feels that the two lots are both buildable as they are now with no changes.  The hardship to the property is still in question.  A variance cannot be given if one is not required.  As long as lots can support a house, well, septic etc. the lot line can be done by the PB.
A letter of opinion from the BOA to the PB should be sent stating that a variance is not needed.  The PB can do the lot line adjustment because the lots are lots of record and any use is permitted by the ordinance.
The definition of a lot of record, Zoning Ordinance pg. 62, is “Land designated as a separate and distinct parcel in a legally recorded deed and/or plan filed in the records of Merrimack County, New Hampshire.”  These are two lots now and will still be two lots once the line adjustment is made and recorded.

BOARD DISCUSSION
There would not be a diminution in value of surrounding properties because the lots are buildable now and by changing the size of the lots, with one house each, surrounding property values would not be effected.  

This would not be contrary to public interest because the lots are buildable now and by changing the size of the lots, with one house each, it would not be contrary to public interest.

There are no special conditions that make an area variance necessary.

The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden:
   Zoning Ordinance-Article III, Section E. I. Where a lot of record at the time of passage of this ordinance does not conform to the area and frontage requirements, such lot may be occupied by any use permitted by this ordinance.  Since lot line adjustments are permitted to lots of record, regardless of size or date of creation, a lot line adjustment should be allowed for these lots without a variance as defined on page 62 of the Zoning Ordinance, Article XI - Lot of Record.

Substantial justice would not be done because the board does not feel a variance is needed as both lots are buildable as they are presently.

The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because these lots can be built upon as they are presently without changes and they can also be built on with a lot line adjustment by changing the frontage without changing the area of the lots.

MOTION
Ben Brown moved to deny the request of Brent Moses, Map 2 Lots 57A & 57B,
Article II, Section D-RA for a lot line adjustment 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 lots are buildable now and by changing the size of the lots, with one house each, surrounding property values would not be effected.
2.  The granting of this variance would not be contrary to the public interest because the lots are buildable now and by changing the size of the lots, with one house each, it would not be contrary to public interest.
3. a.  There are no special conditions of the property that make an area variance necessary.
   b. The same benefit can be achieved by some other reasonably feasible method that would not impose an undue financial burden-Zoning Ordinance Article III, Section E.
I. “Where a lot of record at the time of passage of this ordinance does not conform to the area and frontage requirements, such lot may be occupied by any use permitted by this ordinance.  Since lot line adjustments are permitted to lots of record, regardless of size or date of creation, a lot line adjustment should be allowed for these lots without a variance as defined on page 62 of the Zoning Ordinance, Article XI – Lot of Record.
4.  By granting this variance substantial justice would not be done because the board does not feel a variance is needed as both lots are buildable as they are presently.
5.  The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance because these lots can be built upon as they are presently without changes and they can also be built on with a lot line adjustment by changing the frontage without changing the area of the lots.
Motion was seconded by David Dobson.




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

Motion carries 5-0.  Request is denied.

Letter will be sent to the Planning Board, Selectmen, and applicant explaining why the BOA feels a variance isn’t needed for a lot line adjustment in this case.

Next BOA hearing has been scheduled for June 6, 2007 for Ann Fournier on Horse Corner Road.

Respectfully submitted,



Holly MacCleery, Secretary
Chichester Board of Adjustment



Edward Meehan, Chairman
Chichester Board of Adjustment









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