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Board of Adjustment Minutes 09/19/2007
CHICHESTER BOARD OF ADJUSTMENT MINUTES
SEPTEMBER 19, 2007

Case #211- Thomas & Susan Dennison, Map 1 Lot 17A, requesting a Use Variance to Article III, Section L. sub-section 2.I.A. of the Growth Management Ordinance to permit the issuance of a building permit in 2007 for construction of a single family dwelling as there are no permits available until 2009.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; Ben Brown; David Dobson; Tom Wainwright; Richard Millette; David Hartley.
Voting:  Ed Meehan, Steve MacCleery, Ben Brown, David Dobson, and Tom Wainwright.

Mr. Dennison felt that this variance would not diminish surrounding property values.  He did not anticipate that his family would be coming back to the area as they have been in the Philippines for the past 20 years.  He was not aware of a growth management ordinance and the need to wait for a building permit until 2009.  He also feels that this use would not negatively impact any natural or agricultural resources and that waiting for 2-3 years for a building permit is an injustice.  He stated that the result of a single family dwelling on his property would not burden any of the town’s resources including the school system as their children will be home schooled.  His family of 6 is currently living in a small apartment in Pittsfield and he feels that paying rent until he can obtain a building permit for his property in Chichester is clearly a hardship.

Abutter Fred Ruoff asked if the lot was buildable.  This lot, located on the corner of Blackman & Short Falls Road, was subdivided from the original Dennison property years ago and is an established buildable lot.

Abutter Nancy Fraher commented about the children not attending the public school system isn’t a 100% guarantee.  She does not feel that a hardship has been proven and that the growth ordinance should be adhered to by everyone.

Lucinda Reed asked if this type of variance had been requested in the past and what was the outcome.  The board stated that one developer requested more than the permitted building permits under the elderly housing zoning and was denied by the BOA as well as by the court.  Another developer appealed to the BOA, was denied, took the town to court and a settlement was determined by the court & town.  Another applicant appealed to the BOA because he had lost his building permit due to the fact that he did not build within the required time limit.  He was denied the re-issuance of his permit.

Todd Hammond stated that he had to wait 6 months for his permit before he could build.  He feels that the ordinance has been established and should be adhered to.




BOARD DISCUSSION
The variance would not diminish surrounding property values because the intention is to build a single family dwelling in a residential area.

This would be contrary to the public interest because it goes against the ordinance voted on by the town.

The zoning restriction applied to the property does not interfere with the reasonable use of the property.  The board does not find uniqueness with this piece of property with respect to the growth management ordinance.  This is an equal hardship for everyone that is also waiting for a building permit.

There is a fair and substantial relationship between the zoning ordinance and the specific restriction on the property because the ordinance applies equally to all building lots and those who are waiting for building permits; and have waited for building permits since the growth management ordinance was enacted.

The variance would injure the public or private rights of others who are currently on the list for a permit.  The town’s wishes would be upheld pertaining to the growth management ordinance if the request were denied.

On the other hand the variance would not injure the public or private rights of others because of “no harm-no foul.”  This use would not be creating a nuisance.

By granting the variance substantial justice would not be done because of the injustice that would be created to those that are currently on the waiting list for a building permit.  The applicant’s injustice does not out weigh the justice to the town’s people.

This variance would be contrary to the spirit of the growth management ordinance by allowing an additional permit now without waiting until one is available.

If the growth management ordinance, as well as other zoning, has been established for several years it is the public’s responsibility to be aware of said zoning.

MOTION
Tom Wainwright moved to deny the request of Thomas & Susan Dennison for a Use Variance to Map 1 Lot 17A, Article III, Section L. sub-section 2.I.A. of the Growth Management Ordinance to permit the issuance of a building permit in 2007 for construction of a single family dwelling as there are no permits available until 2009 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 intention is to build a single family dwelling in a residential area which would not decrease surrounding property values.
2.  The granting of this variance would be contrary to the public interest because it goes against the ordinance the town voted for.
3. a. 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-the board does not find a uniqueness with this piece of property with respect to the Growth Management Ordinance.  This is an equal hardship for everyone that is also waiting for a building permit.
  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 ordinance applies equally to all building lots and those whom are waiting for building permits; and have waited for building permits since the Growth Management Ordinance was enacted.
  c. The variance would injure the public or private rights of others who are currently on the list for a permit.  The town’s wishes would be upheld pertaining to the Growth Management Ordinance if the request were denied.
4.  By granting this variance substantial justice would not be done because of the injustice that would be done to those that are currently on the waiting list for a building permit.  The applicant’s injustice does not out weigh the justice to the town’s people.
5.  The use contemplated by petitioner as a result of obtaining this variance would be contrary to the spirit of the ordinance by allowing an additional permit now without waiting until one is available is contrary to the spirit of the Growth Management Ordinance.
Motion was seconded by Ed Meehan.

VOTE ON MOTION
Tom Wainwright – Yes
Ben Brown – Yes
David Dobson – Yes
Ed Meehan – Yes
Steve MacCleery – Yes

Motion carries 5-0.  Request is denied.

Respectfully submitted,



Holly MacCleery, Secretary



Edward Meehan, Chairman
Chichester Board of Adjustment





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