Present: Frank Polito, Chairman; Bill Friel, Vice-Chairman; Kate Rochford; Hank Riehl

Alternates: Samuel Zannini;

Global change "Mr. Dzcheikowski" to "Mr. Dziechowski"

Mr. Polito explained the reasons for a granting a rehearing under RSA 677:2 and 677:3, are an error in law, an error in or incomplete written record, or the applicant has produced significant information that was not reasonably available to them at the time of the original hearing.

Mr. Polito asked if the Board, after reviewing the application for a rehearing, thought there were any issues that needed to be clarified in the record. There was a consensus of the Board that the record was complete and did not have any errors. Mr. Polito asked if there was any new information in the appeal that was not reasonably available to the applicant at the time of the original hearings. It would appear that the new information provided by the applicant in the request for rehearing was in regards to the diminution of value criteria of the special exception. In the request for the rehearing, the applicant has provided a letter from an appraisal company addressing this issue. The Board agreed this was not information that wasn’t reasonably available at the time of the hearings. The Board felt that the applicant could have provided this information at any time over the course of the three months that the application was under consideration by the Board. There was a consensus of the Board that there was no new information that was not reasonably available to the applicant at the time of the original hearings.

With regard to an error in law, Mr. Polito asked if all the members had a chance to review the most recent case from the NH Supreme Court on "Malachy vs. Town of Chichester". An opinion was issued on March 20, 2007, which addresses and further clarifies the Supreme Court’s definition of, substantial justice and public interest. The Board drew from case law on variances and other established definitions for variance criteria when reaching their conclusion in considering the original application., even though that application was for a special exception, not a variance. Mr. Polito thought that drawing on these definitions for guidance on 3 of the 4 special exception criteria requirements was reasonable. The Board agreed. He said that there is now this new case, which provides additional guidance in the areas of public interest, substantial justice and the spirit of the ordinance. Two of the three special exception criteria that were considered in the Mariner Tower hearing have been further clarified by the Supreme Court. Mr. Polito said the Board could ignore this new case law and have the applicant address it at the Superior Court level, which could be grounds for being remanded back to the ZBA. The Board could also grant a rehearing based on the change in case law. He said that it probably boils down to a matter of legal efficiency and fairness to both the applicant and the abutters. Mr. Friel believed the Board should grant a rehearing on the two criteria only. There was a consensus of the board that a rehearing should be granted to incorporate the new information from Malachy V. Chichester. The Board also agreed that the only issues to be heard should be substantial justice and public interest. Mr. Polito explained that the new case law did not add any definitions for diminution of value so there were no grounds for rehearing that special exception criteria. Ms. Rochford asked whether there was any point in rehearing just the 2 special exception criteria when the end result would be that the application will fail on not meeting the diminution of value criteria. Mr. Polito said that while the end result would be the same in that the diminution criteria, which failed and is not reconsidered, there is value to the applicant if the new information in the Malachy V. Chichester results in the public interest and substantial justice criteria passing. He said that if that is the result of a rehearing, and the applicant pursues an appeal with the courts, the appeal would be limited to only consideration of the diminution criteria. The Board agreed they would not open the discussion regarding the diminution as there is no grounds for reconsidering that criteria and that would be unfair to the abutters. Ms. Rochford disagreed and thought the rehearing should include all issues.

PUBLIC HEARING: Continued from April 11, 2007 – 8:00 P.M.

Abutters list was read with the following present: Mr. and Mrs. Mallon; Elaine Vaillancourt; Big Island Pond Corporation.

Ms. Rochford stepped down from the Board.

Mr. Polito asked Mr. Mallon if he received the letter sent to him, giving him a list of what he should have for the hearing. Mr. Mallon presented the Board with a packet including plans for a proposed dwelling and indicated he believed he provided all nine items that the Board requested. This packet included engineering plans, which showed proposed dwelling, building envelope and setbacks. Mr. Polito asked Mr. Mallon to tell the Board what he was looking for. Mr. Mallon said the structure was 54’ from the lake and that everything was move back to be 50’ from the lake. They have an approved three bedroom septic system and a plan for a three bedroom home with a two car attached garage, which they have brought tonight.

Mr. Polito said he talked to the State and the dwelling meets the Shoreline Protection Act provided that it is greater than 50’ from the lake. Mr. Mallon had copies of an email from the State confirming this. Mr. Polito said before they discussed the size of the structure, and the non-permeable areas, he wanted to know about the "bunkhouse" as listed on the plot plan. Mr. Mallon said the Board had asked for proof that this structure predated zoning. Mr. Mallon explained that the earliest tax card he could find was from 1972. Mr. Polito asked if he realized the Shoreline Protection act law went into effect in 1969. Mr. Mallon said there is no information available at Town Hall prior to 1972. Mr. Polito asked what the tax card listed this building as in 1972. Mr. Mallon stated it was a boathouse. Mr. Polito questioned if it were referred to as a bunkhouse or a shed/boathouse. Mr. Mallon said it was referred to as a boathouse. Mr. Polito asked if his proposal included keeping this structure or removing it. Mr. Mallon explained that it already existed and is used as a screen house to enjoy the lake. Mr. Polito again asked if Mr. Mallon had any evidence of a vested right that this existed before 1969. After 1969 a permit from the State would have been needed to build this. Mr. Mallon explained that the oldest record the Town had is from 1972. Mr. Mallon said he has been told that the boathouse existed before the house in 1952. Mr. Polito asked for evidence and said the State would say if you cannot demonstrate that this is preexisting, it would not be permitted. Mr. Polito asked Mr. Mallon if he had requested a permit from the State. Mr. Mallon asked how he was supposed to show evidence if the Town does not even keep records that date back that far. Mr. Polito asked about the lots and whether they have always been in common ownership. Mr. Mallon said they were.

Mr. Polito said when an applicant comes in for a variance and it includes a tear down, they are staring with a clean slate. It is his opinion and history of the Board to request that the lot become as conforming as is possible. This is an intensification of use, as the applicant is requesting to change the use from seasonal to year round and the size of the structure is increasing. It is within the Board’s purview to require other changes in exchange for this request. One of the considerations may be that the existing bunkhouse/boathouse/shed be removed. The other is that the proposed dwelling is now further than 50’ from the lake and has a State approved septic system.. Those three changes would tend to make the lot more conforming and would be consideration in balancing against the intensification changes to year-round usage and a larger dwelling.

Mr. Polito said if there was documentation showing this was a boathouse that existed before 1969 and it was being kept as a boathouse, it could be one set of facts in considering whether its removal was necessary to make the lot more conforming. What is before the Board is a tax card from 1972, which refers to this a shed/boathouse and a plan before the Board tonight labeling this as a bunkhouse with a deck. Mr. Polito said that what is on the plot plan would appear to be an intensification in use even if the boathouse were a legally preexisting structure. Mr. Mallon said the engineer called this a bunkhouse, but it could be a boathouse. Mr. Polito claimed a boathouse would not have a deck. Mr. Polito reiterated the Board would have to take this into consideration because of the proposed changes to the lot. Mr. Mallon said the house has been moved back out of the 50’ buffer, the septic system is 120 feet from the lake and they are removing the three sheds currently on the property. Mr. Polito said these are good things, but the proposed dwelling is larger and there are more non-permeable surfaces. Mr. Polito said the applicant could take more time to research the boat house, but there is presently no documentation to substantiate this having a legal existence, especially not with a deck nor as a bunkhouse. Mr. Mallon asked again, if the Town did not keep the records, he did not know where he would find information. Mr. Mallon claimed that just looking at it, one could tell how old it was. Mr. Polito claimed the tax card in 1972, did not indicate there was a screen house, so it must not be legal. Mr. Mallon said he has a tax card, which states the approximate age the structure was built was in 1952. Mr. Polito said it was unlikely the Board would approve a bunkhouse with a deck as part of this application.

Mr. Polito asked about the size of the proposed house. Mr. Mallon said the proposal was for a 2,500 square foot house with an attached 2 car garage. Mr. Friel was confused because the plan was a mirror image and he could not read the dimensions. Mr. Friel said that according to this plan there was approximately 1840 square feet of space on the first floor and 1490 square feet on the second floor. This was a total of about 3260 square feet. Mr. Mallon said he only had three weeks to put this together; they spent a lot of money on engineers and took time out of work. Mr. Mallon said they are only looking for a 2500 square foot house and not a 3200 square foot house. Mr. Mallon asked if the Board could limit the square footage in the approval and they would have to tweak this plan to fit into that. Mr. Polito said the Board had trouble in the past where a square footage was approved, but another plan was signed an accepted and the larger structure got built. Mr. Mallon said the Board did not need to sign this plan, but just limit the size in the buildable area.

Mr. Polito said the Board needed to look at non-permeable surfaces and the area used as a percentage of the lot. Mr. Friel said that based on these calculation there is a 2644 square foot footprint including the garage, but not including the driveway. This is a little more than 10% of the lot being non permeable. Mr. Polito asked if the Conservation Commission had seen the plan. Mr. Mallon said he just got it today. Mr. Friel said he was not comfortable with the proposal because he wasn’t sure what it was they were asking for. There is a discrepancy with the square footage of living space he calculates from the plan versus what Mr. Mallon claims he is us asking for. In addition they don’t know if the boathouse is a bunkhouse or a boathouse. Mr. Mallon suggested they approve a 2500 square foot dwelling and they would have to present a plan for that square footage as a condition. Mr. Polito claimed that 2500 square foot homes are built on 3 acres, which is required in this zone. Mr. Zannini agreed the other structures on the lot, including the boathouse, should be removed and that this is a reasonable request by the Board. He did not agree that 2500 square feet is too large. He believed there is case law that supports limiting the square footage as unreasonable. Mr. Polito thought 1800 to 2000 square feet with maybe a garage under would be more reasonable. Mr. Mallon contended that his lot was one of the larger and there were bigger additions and homes approved on smaller lots. Mr. Polito said there is legislation before the State right now to limit non permeable surfaces near water. Mr. Polito believed there is environmental science behind that proposal. Mr. Zannini did not agree and did not think this legislation would come to fruition. Mr. Polito said the Board and Town may have made mistakes in the past, regarding homes built that Mr. Mallon is referring to as justification for the size of his proposed house. Mrs. Mallon said when they were before the Board last month they indicated they were thinking of building a 3200 square foot house and that Mr. Polito suggested a 2200 to 2500 square foot house might be considered by the Board, so this is what they are proposing.

Mr. Polito said there is another issue regarding Valcat Lane and it not being a Town Road. Mr. Mallon said he has access to Kings Grant Road by deed and can put his driveway right out to the main road.

Mr. Polito opened the hearing to the public. Mr. Artis asked the Board to take a recess so he could speak to the Board. Mr. Polito told him if he had information that he wanted the Board to consider, it could not be private. The Board agreed this was dangerous. Mr. Artis believes there is a discrepancy in where the access is from Valcat Lane to the main road. Ms. Vaillancourt said there are problems with this land and need to be figured out. Mr. Polito said he knew there was an issue with the road access and the Board would need to have assurances that this property could be protected by the Fire Department for health and safety issues. Mr. Mallon said it needed to be protected whether it was seasonal or year round and that all of the other properties would have the same issues and they are already year round residences. Mr. Dziechowski said the Conservation Commission had not been invited for a site walk or seen any plans. Mr. Mallon contended there was someone on the site walk that claimed she was there as a representative from the Conservation Commission and that he had given her the information and was told it would be heard that night. She claimed to have been on the site walk as a neighbor because she saw it on television. Mr. Dziechowski said the Commission could not support any proposal without a site walk and without seeing a plan that dealt with water management from the dwelling. Big Island Pond Corp. was concerned with the type of buffer that would be between the dwelling and the lake as many new homes have the lawn all the way to the waters edge and in general they do not like homes to be converted from seasonal to year round.

Mr. Polito told the Mallons that they had the option of going through the application with the information as of tonight, including the discrepancies, to approve a house 2,500 square feet as proposed, or it could be continued and the concerns of the Board and discrepancies could be addressed. Mr. Mallon did not understand and thought they had addressed everything on the list. He took a lot of time out of work and spent a lot of money on what he has submitted. He has an offer on his current house and they do not know what to do because they have been before the Board for the past three months. Mr. Polito said for him personally, the issue of access needs to be addressed so he knows what that will look like on the property. It may have a material impact on the placement of the house and non permeable surfaces. Mr. Mallon believed the access will not be on the lot, but off to the side. Mr. Polito would like the Conservation Commission to look at this and take a site walk. Mr. Polito said it is not a requirement but the Board counts on the Commission for input and a double check of what the Board is looking for, especially around the lake. Mr. Polito needs to be convinced this is the best they could do as far as the footprint of the house. Mr. Zannini disagreed and said there are recent cases in which the Court has said that just because there is a wetland buffer, it is not necessarily reasonable to have an applicant downsize the project. Mr. Polito thought this was a very narrow definition and when talking about spirit and intent of the ordinance, the size does play into it. Mr. Polito again reiterated there is legislation before the state regarding non permeable surfaces around water. Mr. Zannini did not believe it was that likely. Mr. Riehl said they could show how they are going to protect the water and what they are planning to do to the lot from the house to the water. Mrs. Mallon said they are not going to make it lawn and they intend to leave it in its natural state. Mr. Riehl would like to see the size of the structure reduced, but did not have a problem with the boathouse/bunkhouse, but wanted it clearly defined. Mr. Friel said there is nothing definitive in the plans that would let him approve this as is.

Mr. Polito said he thought the footprint could be reduced. Mrs. Mallon believed there was an ulterior motive with the Conservation Commission and wanted to know who she could speak to with regard to this. Mr. Polito told the Mallons to come up with a house with the smallest possible footprint that meets their needs, with a garage. He would also like the boathouse torn down, or turned back into just a boathouse and got something from the State approving this. A condition of the approval might be the issue of the access to provide fire and police protection. Mr. Mallon agreed to continue the hearing until next month and address the issues discussed as well as having the Conservation Commission review this and provide a storm water management plan.

Chinh Nguyen request for Variance from Article IV, Section 410.8 to permit construction of a residential building 72+- (28’ variance) from wetland as opposed to the required 100’ on property located at 5 Orchid Springs, Map 14, Lot 83-4, TR2 Zone.

Abutters list was read with the following present: Mr. Nguyen

Mr. Polito said when the subdivision was approved; all of these lots had very limited building envelopes but showing them on the original plan was not a requirement of the Planning Board at that time. There are only two houses on the street. Most of this area is just a low area with very mucky areas. He did not believe it was a high value wetland.

Mr. Dziechowski said they reviewed the site and would just ask that there would be a no cut, no disturb restriction placed on the property on the other side of the stone wall which appears to form a clear boundary from the low value wetlands to the medium value wetlands.

The Board reviewed the criteria:

Gerald Marquis request for a Special Exception as specified in the Zoning Ordinance, Article IV, Section 460 to allow construction of a 40’ x 18’ garage with an Accessory Living Unit over on existing property located at 8 Coventry Road, Map 14, Lot 84-3, RR2 Zone.

Abutters list was read with the following present: Mr. Marquis

Mr. Marquis presented drawings. The Board had conducted a site walk and understood what Mr. Marquis was asking for. Mr. Friel calculated the accessory unit to be 742 square feet. There will be an additional garage built, making it a three car garage. There will also be a dormer in the addition. There was direct access from the existing great room to the unit. There will be a small deck with a set of stairs leading down to the existing deck

The Board reviewed the criteria:

A. This condition is met

B. This will be a condition

C. This condition is met

D. This condition is met

E. This will be a condition

F. This will be a condition

G. This will be a condition

H. This will be a condition

I. This condition is met

J. This will be a condition

K. This will be a condition

Mr. Friel made a motion to approve the request based the conditions of a,c,d & i having been met and with the condition that b,e,f,g,h,j, and k will be met. The applicant understands that a State approved septic plan must be presented before a building permit can be granted. Ms. Rochford seconded the motion and it was unanimously approved.

Abutters list was read with the following present: David Brown; Big Island Pond Corp.; Kevin Camm

Mr. Brown is proposing a 10 x 28 foot deck that is not covered on the back of the dwelling and a 5 x 12 second floor balcony on the back of the dwelling. Neither deck has stairs so there is no access from outside of the dwelling. Mr. Polito explained that Mr. Brown was before the Board and received approval for the construction of a dwelling. Although the decks were depicted on the plan, they were not included in the approval.

The Board reviewed the criteria.

Abutters list was read with the following present: Lorraine C. Mullet Family Trust; Correspondence from David and Ellen Murphy.

Mr. Mullett explained that he had a lot that they are proposing to divide into two parcels. There is an existing structure on Lot 1, which has frontage of 150 feet. They are looking for a reduction in frontage. The applicant showed surrounding properties and their corresponding frontage. He claimed the existing frontages in the area were comparable to what he is proposing. Mr. Polito asked what the exiting boundaries are today. Mr. Mullett said there is currently one lot. Mr. Polito said there was a subdivision plan approved but never recorded. Mr. Polito told the applicant they would be creating a substandard lot for the existing dwelling because it would only have 150 feet of frontage. Mr. Polito said they could not approve a subdivision that creates a substandard lot. Mr. Polito explained that both lots would need to meet the requirements of TR2. The applicant would have to request a Special Exception. The applicant thought they were following the guidance of the Building Inspector. Mr. Polito stated this would require a separate application because it is not properly before the Board. Mr. Polito needs to confer with Town Council on whether restrictions could be placed on the larger lot regarding further development, if the Board approved relief for this subdivision. The applicant said he would also need to absorb this. Mr. Polito thought they needed a more complete package.

The applicant agreed to continue this to the next scheduled hearing and they will provide a new application.

Abutters list was read with the following present: Delores Seaward

Mr. Polito reminded everyone that this application had been approved before the new zoning went into effect, allowing 750 square feet for an accessory living unit. This request is to add additional square footage to the unit. The only change is to add a kitchen where the common laundry area was located. This will bring the proposal to about 584 square feet.

The Board reviewed the criteria:

A. This condition is met

B. This will be a condition

C. This condition is met

D. This condition is met

E. This will be a condition

F. This will be a condition

G. This will be a condition

H. This condition is met

I. This condition is met

J. This will be a condition

K. This will be a condition

Mr. Riehl made a motion to approve the alteration based the conditions of a,c,d, i and j having been met and with the condition that b,e,f,g,h and k will be met. The applicant already has a State approved septic plan, which is on file. Mr. Friel seconded the motion and it was unanimously approved.

Michael Saviano request for Variance from Article 410, Section 410:8 of the Zoning Ordinance to allow construction of a 24’x31’ garage 51’ from wetlands (49’ variance) as opposed to the required 100’ on property located at 33 Boulder Cove Road, Map 20, Lot 12, RR3 Zone.

Abutters list was read with the following present: Michael Saviano; Thomas Schwandt; Big Island Pond Corp.

Mr. Saviano indicated he wanted to construct a 10 x 16 breezeway and a 24 x 24 garage with living space above it. The Board reviewed the site plan. The breezeway is part of what was already approved by the Board. Mr. Polito asked if the construction from the previous approval was completed yet. Mr. Saviano said it was framed, but he does not have an occupancy permit. This proposal is off the back of the house and away from the lake. The garage level is elevated because of the slope of the land. Mr. Saviano said he has an approved six bedroom septic plan on a 3.3 acre lot. Mr. Saviano said that back in 1998 he was before the Board and received a variance for a plan with a garage that had two bedrooms above it, but it was never built. Mr. Polito thought the only issue was going to be the water management from the roof of the addition. Mr. Saviano said that he would be willing to implement any drainage solution deemed necessary.

Big Island Pond Corp. stated that the main concern was water runoff, especially because this lot has grass down to the edge of the lake. Mr. Dziechowski agreed the issue was the water runoff but indicated Mr. Saviano has been willing to work with them on any issues they have had. Mr. Dziechowski said a good water system with French drains and a catcher system on the corners would be good.

Mr. Polito didn’t think it was unreasonable to ask Mr. Saviano to get a licensed engineer to design a set of drainage plans that can be part of the building permit and inspection process for the garage and breezeway. This would ensure that the water from the structure would be drained away from the lake Mr. Friel wanted to be careful not to set a precedent that would then require future applicants to obtain this documentation. Mr. Polito said this is a substantial project, but it is on a 3 acre lot. He said that the size of the structure would be comparable to those on other RR3 residential lots. In any event, the structure is within the 100’ wetlands buffer so requiring that water from additional non permeable surfaces be dealt with by an engineering plan and corresponding construction, is not unreasonable.

Mr. Saviano said he would be willing to do what the Board wanted, but he is under construction with the breezeway area and cannot proceed any further until he is approved for the additional area. He was approved for 9 feet in the last proposal and this request is for 16 feet. He cannot complete the construction of the breezeway until this is approved. He would like to make the engineering plan a condition. Mr. Polito suggested they bifurcate the application to be able to construct the breezeway. Mr. Riehl did not understand why this breezeway and garage wasn’t part of the original application when it was approved. This was a long drawn out process and he is questioning why the Board is being asked for more. He believed Mr. Saviano must have known this was what he wanted all along. Mr. Saviano said he did want this, but because of the history, the perceived prejudices and the time spent, he thought it would be too much to ask for all at once. Mr. Saviano said he would have Mr. Camm provide the water management plan. Mr. Saviano said he would just put in the foundation for the breezeway. The Board verified the breezeway conforms to the Shoreline Protection Act. Mr. Polito said that since they are bifurcating the application to allow Mr. Saviano to construct the breezeway first, they need to add a condition to the approval so that if the garage is not constructed, there will be a drainage plan completed for the breezeway only as a condition of the OC.

Mr. Saviano said he needs to get the footings and the foundation for the breezeway. The Building inspector will not let him get a frame inspection on the house, which stops him from getting a plumbing and electrical inspection. Mr. Saviano said he will frame only the first 8 feet, which was already approved. Mr. Polito said the Board could approve the construction of the breezeway and that Mr. Saviano should return with the engineering plans for drainage so that the garage portion of the application can be considered at the next meeting. Mr. Polito told Mr. Saviano if he required more than one month to get those plans completed, he should request a continuance to July.

Mr. Riehl made a motion to bifurcate this application into the construction of a breezeway approximately 10’ x 16’ and the construction of a garage approximately 24’ x 24’ with living space above; conditioned on development of an engineer’s drainage plan for the entire application. If the garage is not approved or constructed, the breezeway OC will not be issued without construction of an engineer’s drainage plan. Mr. Friel seconded and it was unanimously approved.

For consideration tonight is a 50’ variance for the breezeway only.

The Board reviewed the criteria for the breezeway.

Minutes transcribed from tape. Respectfully submitted

Rebecca Russo

Approved________________________