The following amendments/corrections were made:

Page 6, change "Dianna" to "Diana"

Incoming

Timothy Climo, 17 Hemlock Shore Drive, Map 22, Lot 74 Home Business Application. The Board reviewed the application there was a consensus that this business was exempt. Mrs. McGrath made a motion that the business was exempt, Ms. Rochford seconded and it was unanimously approved.

Attorney Bernard Campbell dated 9/15/05 re: Rehearing request on Variance Application for Casey, 37 Stickney Road, Map 23, Lot 32.

State of NH, Dept. Safety, Div. Of MV dated 10/6/05 re: Clinton Teague request for Retail Vehicle Permit for 6 Industrial Way, Atkinson, NH – Map 16, Lot 53, CI Zone.

Memo to Town Clerk from Planning Board w/Subdivision Regulation Amendment change for Regulation and Use Book holders.

Planning Board Legal Notice for meeting 10/19/05.

Zoning Board Budget printout dated 9/30/05.

Copy of letter to Bernard Campbell from State of NH, Dept. of Environmental Services re: Casey property, 37 Stickney Road.

James M. Lavelle, Associates for William Carpenter request for Variance from Article IV, Section 410:7 of the Zoning Ordinance to permit areas designated as poorly or very poorly drained soils to be used to satisfy minimum lot size on property located on Westside Drive, Map 17, Lot 30, RR2 Zone.

Abutters list was read with the following present: Mr. Lavelle, representing Mr. Carpenter; Richard and Harratt Houde; Commons Condominium Association

Mr. Lavelle explained this was a lot line change plan, between Mr. Carpenter and the Houdes. Mr. Carpenter would like to take 8/10^ths of an acre and transfer it to the Houde’s property. They will be leaving two acres with the Carpenter parcel, reducing it from 2.83 acres and increasing the Houde parcel from 8.02 to 8.85 acres. There is a wetland area on the Carpenter parcel that dissects the property. The area is a wooded wetland that provides a buffer between the two parcels. Mr. Carpenter has his house for sale. The Houdes would like to acquire this 8/10ths of an acre parcel to preserve the buffer that is there prior to the sale. Mr. Lavelle has been before the Conservation Commission and the Planning Board. The Planning Board was fine with the proposal but because the lot line change results in Mr. Carpenter’s property not meeting the 2 acre high & dry land requirement, it was referred to the Zoning Board. Mr. Polito read a letter from the Conservation Commission, which did not have a problem with the proposal. The Board reviewed the plans. Mr. Polito asked why there couldn’t be an easement on the property instead of changing the lot line. Mr. Polito’s concern is that you are taking a lot of record that may not meet the minimum acreage for current zoning and rendering it less adequate. Somewhere down the line the Houde’s can possibly use this additional acreage as part of subdivision of their parcel. It may not be the intent today, but there are many lots in town that have acreage behind their home that they could sell with a variance. Then this acreage could be used in the density calculation for new a subdivision. Essentially it gets counted twice. Mr. Polito thought if the Houdes wanted to protect their land they could have a use easement, which would be a lot cleaner. Mrs. McGrath disagreed and thought it would be more difficult for Mr. Carpenter to sell his property with an easement. It makes it less valuable. Mr. Lavelle agreed that it is cleaner without an easement and that Mr. Carpenter would by selling a two-acre parcel of land. Mr. Lavelle said the Houdes could speak to what they were intending to do with the property, but could not say what someone in the future would do with it. It is not sub dividable as any kind of a cluster. Mr. Polito said the Houde’s property was close to meeting the 10 acre requirement for cluster and that all they had to do is obtain another acre and one eighth of property from someone else and then they would have enough for a cluster subdivision. Mrs. McGrath said that that wouldn’t automatically make the Houde’s property suitable for a cluster subdivision. It would have to meet other criteria.

Mr. Polito said you would be taking a lot that is either in compliance or almost in compliance, render it less adequate by taking land away and adding it to the Houde’s property, and create a situation where down the road, someone could now create a cluster, by acquiring another acre or so in a similar fashion. Or, they may just be able to subdivide what they have now under RR zoning. The problem is that if this happens, they are using the land transferred from Mr. Carpenter in a density calculation, essentially counting it twice, and this creates housing density beyond what would have been allowed had you left the lot the way it was. Mr. Polito said there is other land close by to the Houde’s that could be obtained to meet the criteria for a cluster subdivision. Mrs. McGrath thought that was a stretch. Mr. Polito said the point was does the Board want this acreage to ever be used in the calculation for a subdivision given that it was already used and needed for Mr. Carpenter’s lot. Mrs. McGrath said the abutter’s lot would have to acquire additional acreage from somewhere else in order to accomplish this. Mr. Polito contended that this land could be counted twice. Ms. Killam asked if the Board was concerned; why not ask that a deed restriction be in place. Mrs. McGrath said that this would be asking the Houdes to never acquire any additional land and that would be inappropriate. Mr. Polito said that the deed restriction would only say that this slice of land would never be used in the calculation of density for further subdivision. Mrs. McGrath believed that that would be way beyond the scope of the Board’s authority. Mr. Lavelle said he believed the Planning Board saw this as a relatively simple lot line change, with the exception of the less than 2 acres high and dry soil on the Carpenter’s lot. The Conservation Commission had no problem with the proposal. Mr. Lavelle thought that Mr. Polito was overcomplicating a simple thing. Mr. Polito said again that if everybody in a particular subdivision had more than two acres and decided to sell off land on the back of their property, and they got the variance to do that, then someone could use that land again to create a subdivision. Mrs. McGrath said that Mr. Polito was trying to do Master Plan growth. Mr. Polito did not agree because this property needed a variance. He repeated that the ZBA would be rendering a lot less adequate by making it smaller and then allowing the transferred land to be used in a density calculation again. Mr. Polito is going to ask the Houdes if they would be willing to put a deed restriction on this parcel. Mr. Polito read part of the zoning that dealt with the Board being able to place conditions on approval of variances. Mrs. McGrath argued that this was in connection with the permits and had nothing to do with the deeds and restrictions on future development. Mr. Polito asked that the Board move forward to the 5 criteria, because he felt the Board is going to have a hard time that this is a hardship. This is a legal lot and for no particular reason, the Board would be cutting a piece off to give to someone else, with no restrictions.

Mr. Lavelle asked if he could have a few minutes to confer with the Houdes. Mr. Polito granted the time. Mrs. McGrath thought the Board should not discuss anything further until the applicant returned. The Board agreed.

Mr. Polito asked Mr. Lavelle if he wanted to go through the five criteria.

1.) There was a consensus of the Board that based on the discussion this criterion was met.

2.) There was a consensus of the Board that based on the discussion this criterion was met

3.) This is an area variance.

1.) Mr. Polito did not believe this met the hardship criteria. Ms. Rochford; Mrs. McGrath and Mr. Rockwell agreed this met the criteria.

2.) Mr. Lavelle said the Chairman suggested an easement be put on the property, but this would be an encumbrance on the property, and they believe would make it less valuable and not as clean as the variance. Mr. Lavelle reiterated the applicant was trying to preserve the wooded wetland buffer between the Carpenter parcel, which is for sale to the Houdes. The Houde’s home is close to the stonewall. The request is from the Carpenters but it is for the benefit of the Houdes. Mr. Polito opened the discussion to the public, which he had not done yet. Ms. Killam said the Planning Board had a general sense that this was a reasonable request and there was no compelling reason not to allow it. The slice of land is useless to Mr. Carpenter. Mr. Polito asked if there were anything to prevent this transferred land from being used in a density calculation if the Houdes subdivided, which would mean it got counted twice. Ms. Killam asked if it really would get counted twice. The Carpenter lot probably got carved out 100 years ago and predated the 2-acre zoning. Mr. Polito said that according to law that doesn’t matter because once the zoning is changed you are not allowed to shrink the lot without a variance. They are stuck with what they have right now. Mr. Polito is concerned with setting a precedent where people just start carving off useless land or the rear of their lot, which could be collected up to form parcels for new subdivisions. This means the land was counted twice for density and the whole purpose of zoning will be defeated. Mr. Polito asked how the Board could approve this and if so, it leads the Board down the path of how do they deny anyone else. Ms. Killam said that every case is based on it’s own merits. A suggestion was made to put a Conservation Easement on the property. Ms. Killam was not sure if a piece of property with a conservation easement could be used in a calculation for a subdivision. The variance is being given to Mr. Carpenter and Mr. Polito does not understand what use Mr. Carpenter is not able to have without this variance, what is his hardship. Not making money on a parcel of land is not a hardship. Mr. Lavelle said this was getting twisted. The purpose is to give the Houdes a buffer. Mr. Lavelle stated that none of the other Board members had spoken and it seemed that only Mr. Polito was against it. Mr. Polito said that Mr. Carpenter is asking for relief in the calculation of lot area and would argue that he already has a single-family lot. What hardship does he have? Mr. Lavelle said the hardship could be that the zoning took his right away to sell a portion of the property. Mr. Polito said that a lot of people in Town would be in the same situation. Mrs. McGrath asked what other reason could an applicant come and ask for a lot line adjustment if it would not benefit one property more than the other. Any time there is a lot line adjustment one person will make money and one person will spend money. Mr. Polito asked why they would not put a restriction on the deed if it is not the Houde’s intention to subdivide. Mrs. McGrath said they were discussing the hardship criteria. Mr. Polito does not understand where the hardship is for Mr. Carpenter. Mrs. McGrath said the hardship is that the Houdes want to maintain a buffer by purchasing land from Mr. Carpenter. Mr. Polito said Mr. Carpenter needs the variance, not Mr. Houde who is seeking to purchase a buffer. To say that the Houde’s not being able to purchase a buffer is a hardship and it somehow creates a hardship for Mr. Carpenter is incorrect. Mr. Rockwell said that this is going to remain a two-acre parcel and he is fine with that. Mr. Lavelle said the adequacy of this lot is not changing because the wetland area separates any dry land being transferred. Mr. Polito did not believe this met the hardship criteria. Ms. Rochford; Mrs. McGrath and Mr. Rockwell agreed this criterion was met.

4.) Mr. Polito said he would argue that an easement would accomplish the same goal as a variance. Mr. Polito contended that nobody here was a real estate agent and could say if an easement would affect the value of the property. He believes there is another way to achieve what is asked for. Mr. Polito argued that this land split off from Mr. Carpenter could be used toward a future subdivision density calculation. Mr. Lavelle agreed but said Mr. Houde’s land could be used for a subdivision without this land. Based on the discussions, Mr. Polito did not agree this criterion was met. Mrs. McGrath, Ms. Rochford and Mr. Rockwell agreed it did meet the criterion.

5.) Based on the discussions, Mr. Polito did not agree this criterion was met. Mrs. McGrath, Ms. Rochford and Mr. Rockwell agreed it did meet the criterion.

Mr. Polito recommended that a condition be placed on the approval that a deed restriction indicating that the parcel that has been transferred can never be used in a density calculation for further subdivision.

Mrs. McGrath did not agree that you could or should require an applicant to put that type of restriction on a deed. Mr. Polito said she did not know that and the only way to find out was to put it on and let someone sue the Board. Mr. Polito questioned why the Houdes were not agreeing to it. Mrs. McGrath said she would not add a deed restriction to her motion.

Mr. Polito said, as the Chairman, this was the dumbest thing he had ever seen the Board do.

Christopher Mastriano request for Variance from Article IV, Section 410:8 of the Zoning Ordinance to permit construction of a 26’x80’ addition to existing dwelling, 78’ from wetlands (22’ variance) as opposed to the required 100’ on property located at 5 Twin Oaks Drive, Map 6, Lot 71, TR2 Zone.

Abutters list was read with the following present: Mr. and Mrs. Mastriano

Mr. Polito opened by saying that the Board made an error at the last hearing and forgot to address the issue of the Variance. Mr. Polito then asked about the changes to the accessory living unit plan approved at the previous meeting. Mr. Mastriano had the dimensions for the accessory unit, which was under the 500 square foot maximum allowed. He showed that the only change was a bump out for a couch. Mr. Polito said that provided that the change was minor and did not affect any of the criteria for granting the original special exception, there was no need for a new application for the accessory livening unit approved previously. Mr. Jones agreed the couch bump out was a minor change and that it still met the 500 square foot requirement. It was a consensus of the Board that this was a minor change.

Mr. Mastriano explained he was requesting a 22-foot variance. There is a 5’ x 8’ area of poorly drained soil. Mr. Polito read a letter from the Conservation Commission, which could not justify denying the variance based on the value of the wetlands. The Committee did have concerns about storm water runoff and drainage being affected. Mr. Dziechowski stated that the variance was one of the most minimal requests, but there were concerns because the lot will be built up and he is not sure about adding to the perimeter drains and dumping more water into the wetland. Mr. Polito asked about the non-permeable surface. Mr. Mastriano drew the proposed additional driveway area on the proposed plan, which only increased to accommodate the doors of the garage.

The Board discussed the size of the addition and Ms. Rochford asked why they needed so many garages. The Mastrianos said they have protective covenants in their deed and are not allowed to park any cars, boats, or RVs in the driveway. With the addition of their mother-in-law they need the space to park the cars and other things that are not supposed to be in the driveway due to the restrictive covenants. Mr. Polito calculated that even if they went with a three-car garage, it would only shave off about 10 feet of the required variance. The Board did not feel that it was material and it did not provide the wetland with any greater protection. Part of the addition includes the accessory unit that was already approved.

The Board reviewed the criteria:

Based on the discussions, the Board agreed this criterion was met.

Based on the discussions, the Board agreed this criterion was met

1.) Based on the discussions, the Board agreed this criterion was met.

2.) Based on the discussions, the Mrs. McGrath, Ms. Rochford and Mr. Rockwell agreed this criterion was met. Mr. Polito did not agree this criteria was met.

Based on the discussions, the Board agreed this criterion was met.

The Conservation Commission agreed these were not high value wetlands. Based on the discussions, the Board agreed this criterion was met.

Ms. Rochford made a motion to approve the request for a variance based on all of the criterion having been met and with the condition that any drainage will not increase the flow into the wetland. This design is to be approved by the Building Inspector. Mr. Rockwell seconded the motion and it was unanimously approved.

Daniel & Margaret Osborn request for Variance from Article IV, Section 400:4 of the Zoning Ordinance to permit a portico 21’ from front lot line (9’ variance) as opposed to the required 30’ on property located at 40 Hemlock shore Drive, Map 22, Lot 57, RR3 Zone.

Ms. Rochford recused herself. Mr. Polito explained to Mrs. Osborne that because there were only three members of the Board, the vote had to be unanimous and that she could ask for a continuance. Mrs. Osborne understood and wanted to go forward with the hearing.

Mrs. Osborne explained that when they requested for the original variance they forgot to allot for the staircase from the front of the house. This was on the original house plans but not on the plot plan. It is not a part of the footprint, but they had to build an area to exit the house from the front door. One corner of the proposal is 21 feet from the front setback as to the required 30’ setback. Mr. Polito asked how far the proposed roof comes over the steps. Mrs. Osborne explained that the roof only extended as far as the furthest bump out on the house, which is 26.4’ from the street (and which the variance was granted for). The roof does not extend to the end of the concrete landing. Mr. Jones agreed the roof over the entry met what the variance was granted for. Mrs. Osborne explained there would be two steps that exit from the front door to the concrete landing/platform and then the additional stairs will come off the side and do not require any variance. The landing only encroaches at the corner because of the curve in the road. Mr. Polito asked what the building code was. Mr. Jones said the landing had to be three feet by three feet at the minimum in area. Because of the two steps that come out the front door, the landing has to be wider than just three feet. AEH asked how the driveway in the front affects the build out. Mrs. Osborne said the driveway is off to the side and has always been that way.

The Board reviewed the criteria:

1. Based on the discussions, the Board agreed this criterion was met.

There is a huge drop off from the road to the property and the road curves around. Otherwise it

would meet the setback. There could be a safety issue cutting 18 inches from the proposal. Based

on the discussions, the Board agreed this criterion was met

3. 1.) Based on the discussions, the Board agreed this criterion was met

2.) Based on the discussions, the Board agreed this criterion was met

Based on the discussions, the Board agreed this criterion was met

Based on the discussions, the Board agreed this criterion was met

 

Beaumont & Campbell Professional Assoc. for Mary Ann Casey request for Variance to Article IV, Section 410:8 of the Zoning Ordinance to permit construction of a septic system to within 50’ of the high water mark of Island Pond replacing an existing septic system 33’ from shoreline; where 100’ is required on property located at 37 Stickney Road, Map 23, Lot 32, RR3 Zone.

Abutters list was read with the following present: Attorney Campbell; Mary Ann Casey; Big Island Pond Association

Attorney Campbell explained that this matter was originally tabled because they did not have Mr. Chamberlain’s ruling or determination. Attorney Campbell subsequently met with officials at the State of New Hampshire, including the person responsible for the administration of the Subsurface Bureau, Mr. Evans. Attorney Campbell said it was pretty clear that the reason Mr. Chamberlain did not sign the plan, was because of the regulations of zoning, which say the septic must be 100 feet from any wetlands. The applicant is here seeking the Variance. Attorney Campbell contended that Mr. Evans has a different view on some of the facts and he believed the State was very positive on whether they would get approval of this plan from them. Mr. Polito said that was Attorney Campbell’s commentary and that they did not have that in writing. Mr. Polito said that he had talked to Mr. Chamberlain a couple of times before they had received the letter from the State, but had not spoken to him since then. He spoke to Attorney Sumner Kalman and was told that the State of New Hampshire DES has been instructed by the Courts that DES cannot render a lot totally unusable by saying you cannot put a septic system on it. Mr. Polito said that DES do grant waivers under certain circumstances but for a lot such as the Campbell’s he has been told that it would be limited to a two bedroom system since the soil area does not even support that loading. The burden is on the applicant to demonstrate that there is a real need to do what they are doing and that it is within the purview of the ZBA to put whatever restrictions on that they deem necessary.

Mr. Polito wanted to point out that this lot also had zoning violation issues. The plan shows that there is a plumbing connection from a garage to the septic system. The code enforcement officer will tell the Board that the town assessor claims the garage is not a garage, but is a cottage. The Board has to be careful because the applicant is before them for nothing more than a septic system approval. This is a seasonal house with a working cesspool. Mr. Polito does not want to see the Board do this in stages. If the applicant wants to convert this to a year round property, then the board should look at the big picture of what is going to be on this property. All of these things are pertinent to the granting of this variance in order to consider the total impact on the lake.

Mr. Polito asked the Board to take five minutes to read Mr. Chamberlain’s letter and the letter from DES.

Mrs. McGrath asked how many bedrooms were currently in the house. Attorney Campbell contended that there are 5 bedrooms in the existing dwelling. Mr. Polito asked if he had any documentation that the town ever approved 5 bedrooms. Attorney Campbell said it was on the tax card. Mr. Polito said that did not make it legal. The property was built in 1940 and predates the zoning. Mr. Polito said there is a long trail of back and forth violations on this property. Attorney Campbell asked to see the list.

The Code Enforcement officer reiterated that the garage is connected to the cesspool. In 1985 the ZBA approved the garage/utility building with a sink and a toilet. The town assessor classified the structure as a small house for vacation use. The interior is finished and heated with electricity. There is a shower stall and a kitchen area with counter tops and cabinets. Mr. Polito said it was in violation of what the Board approved in 1985. Mr. Polito said that this is a seasonal structure, with five bedrooms, but the Board does not have anything in front of them that shows the applicant is entitled to five bedrooms and they are before the Board to go to a four bedroom septic system and ultimately convert to year-round. Once they get that, they are done with the Board. Mr. Polito is concerned that the cart is being put before the horse. Mr. Polito said because the lot is substandard, he would like to see the Board approve a package around what would be able to stay and what would have to be removed from that lot and the likely year-round use might be limited to a two-bedroom dwelling.

Mr. Polito said that it does appear the State differs with Mr. Chamberlain relative to granting waivers to 75 feet Hydric A. The DES has been told by the courts that they ought to approve at a minimum two-bedroom systems given certain conditions for waivers. He said that there is nothing in the DES letter that says it has to be four bedrooms on this lot or that it would approve waivers for that. The State also contends that a new, up to date septic system is better than a cesspool. Mr. Polito said the applicant has every right to go through the five criteria, but the Board is looking at a very narrow slice. The applicant is coming before the Board and asking for a four bedroom septic system, but not putting on the table that they are planning to convert from seasonal to year round. Mr. Polito suggested the Board should go through the five criteria keeping in mind that there is a bigger picture.

Attorney Campbell strongly disagreed with the characterization and he is getting stretched on this point. Attorney Campbell wanted to make very clear that dating back to the minutes of August, the applicant said this was one step in a process by which they were moving in that direction. There is no subterfuge. Mr. Polito said he never claimed there was. Attorney Campbell said he certainly did. Attorney Campbell contends that even if the septic plan were approved, the applicant would still have to come back before the Board for a year round conversion. Mr. Polito said it would be out of the Board’s hand because it will already be a four-bedroom system. Mr. Polito asked Attorney Campbell why he is coming in and doing it this way. Attorney Campbell said that Atkinson’s Section 700:2 requires the applicant to have the approved system design in hand before you can convert. Mr. Polito said there is nothing that says you can’t come in and the Board can bifurcate just as they did with the Osborne property. Attorney Campbell said that was a vacant lot and not a conversion.

Mrs. Casey claimed Mr. Polito was not being fair because he had some aggravation prior to their hearing. Mr. Polito claimed that was not true. Mrs. Casey said it was quite obvious. Attorney Campbell said Mr. Polito made a point about an alleged violation that they are not aware of. It is not a cottage. Mr. Polito asked if it had a shower. Mrs. Casey said it was granted and that she has documents at home from her father’s meetings with the Board that granted this. Mrs. Casey contends he was granted counter space with plugs. Attorney Campbell does not believe there are any violations with the property, and there have been no violation notices from the Town. Mr. Camm said that when he read the ordinance under 410:8, he didn’t think that they needed to be before the Board. He believed that the comments of Mr. Chamberlain influenced the way the Board ruled at the last hearing. Mr. Camm just wanted to point out that they did not try to circumvent anything. Attorney Campbell said that he had been in lengthy conversations with the Town’s Counsel and he believed this was the procedure that they had to go through. First get the septic system approved, and then return for the conversion. Mr. Polito said there is nothing that he was aware of that was told by Attorney Kalman that this had to be done in stages. Mr. Polito said the applicant had the legal right to do what he is doing, but it is taxing this Board to consider granting something as major as a 50’ wetland variance to a 4-bedroom septic system and they do not know what the applicant is ultimately going to do with the property. Mr. Polito said the Board would be approving a 4-bedroom septic system with no information about the ultimate use and configuration of the lot as a year-round and he believes it is procedurally poor.

Mrs. Casey said she was only trying to replace what she already has. Mr. Polito said there is no urgency here, the cesspool you have is working based on what Mr. Camm has stated for the record. Attorney Campbell asked what the Board would want to see. Mr. Polito said he believed the applicant has a working system for a seasonal use. The town’s position is that this is a seasonal property. Where is the hardship. What they have now is perfectly legal. Mr. Polito said the applicant has the right to come in and ask for a four bedroom septic system, but the Board does not have to approve that. Mrs. Casey said this has been a five-bedroom home for forty years and that she is there nine months out of the year. All she wants is what she already has. Mr. Polito said he needs to be shown that if the applicant were starting from scratch, what could be reasonably put on that land. He thinks it would support a two-bedroom cottage. Mr. Camm said if this were a lot starting from scratch you would be lucky to get a two bedroom home on it, but the point is it is not an empty lot and the house has been there since the 40’s. Before there was zoning, this was used as a year round property. Mr. Polito wanted the record to be clear the Board has affirmed that this is a seasonal property. Attorney Campbell said that it is seasonal by zoning because the Town enacted a regulation at a certain point of time. Mr. Camm contends that the State views this as an existing year round structure. Mr. Polito said it was not. Mrs. McGrath asked Mr. Polito if it was his opinion that a four bedroom year round home would be blatantly unacceptable. Mr. Polito said it was because if this lot were vacant the State would never approve a four-bedroom septic system; they would approve, with waivers, a two-bedroom home. This gets into vested rights and the Town views this as a seasonal use. It does not have a vested right as year-round. The Board is here to protect the lake and the water. If this is going to become year round Mr. Polito wants it to be treated as if they were starting from scratch. Mr. Polito believes the Board has legal grounds to do this. Mrs. Casey said the cesspool has been there for twenty-five years with people living there and has done no harm. You can’t take away something that is already there. Mr. Polito said it is a seasonal cottage, not a year-round and that no one is taking it away. Mrs. Casey said it is not a vacant lot and will never be one. Mrs. Casey said that was his opinion. Attorney Campbell said by the Town’s ordinance it is treated as a secondary seasonal residence. Attorney Campbell said that the State, for the purposes of the WS Regulations would consider this a year-round home. Attorney Campbell agreed that the Board has no option but to look at this as a seasonal residence. The vested right is seasonal and as soon as the applicant wants to go to year round, it becomes a clean slate. Mrs. Casey said the letter that was sent to residents to convert to a year round use only said the septic system had to be upgraded. It never indicated that there could only be so many bedrooms.

Attorney Campbell said he was prepared to go through the five criteria.

Attorney Campbell said that based on the letter received from Mr. Evans, of the DES, he encourages conversion to upgraded septic systems. The existing cesspool is only 33 feet from the water and the new septic system would be 50’ from the water. Mr. Polito agreed it would not diminish the property values, but has not heard enough information to convince him that the replacement system would improve exiting conditions. Mr. Polito wanted the record to be clear that the Board does not know whether the flow calculations for this plan would support four bedrooms on the lot. Mr. Polito said that even if a two-bedroom flow can’t be supported on this lot, the state might grant it with waivers. Mr. Camm said the current system is a cesspool and even though it is a very nice cesspool, all of the solids are filtered out. With a septic system everything goes into the septic tank. Mr. Polito told the Caseys that he believes they could get a year round use on that property, it’s just not the one that they want. Based on the discussions, the Board agreed this criterion was met.

Mr. Polito believes it is not contrary to the public interest, but does not know if it diminishes the

threat. Technically the system should work better, but it is not known what the intensity of the use

will be. Based on the discussions, the Board agreed this criterion was met

Mr. Polito realized that he had not allowed for public input and paused to allow for public input. Big Island Pond Association wanted to see something on the property, but not a four-bedroom home. They are looking to protect the lake. Mrs. Osborne thought that after all of her research dealing with septic systems, the usage and the loads, that replacing the cesspool with a four-bedroom state of the art septic system was a much preferred alternative for the protection on the lake.

1.) Mrs. McGrath asked if a three-bedroom system would be more favorable to the Board. Mr. Polito said there is no hardship because the applicant has a use for which they are entitled to and that is seasonal. They also have a working cesspool. This is part of a multi step process to convert to a year round use. This is not a replacement for a failed septic system. There is no sense of urgency in this matter. Mr. Polito believes that case law supports that when you have a change from seasonal to year round you are starting from scratch. You have no vested right to carry everything you had when you were seasonal forward to year-round. This should be viewed as starting from scratch. Based on the discussions, the Board voted 2 in favor of and 2 opposed

2.) The applicant has not demonstrated that a four bedroom unit meets the State criteria for

setbacks and soils and flow. Based on the discussions, the Board agreed this criterion was not

met.

The Board does not acknowledge this as a year round residence. Attorney Campbell represented that it was used as a year-round residence and they are seeking to obtain restoration of that. Mr. Polito said that in the view of the Town they have a legal right to use this as a seasonal property. Mrs. McGrath thought the Board should be looking at the request for a change from the cesspool to the septic system only. The public gain is not outweighing the loss to the applicant. Based on the discussions, the Board voted 3 against and 1 in favor.

Mr. Polito said this boils down to the size of the septic system and what is proposed is too large. Mrs. McGrath agreed. Based on the discussions, the Board agreed this criterion was not met.

Attorney Campbell request for a rehearing on Appeal from Administrative Decision Mary Ann Casey, 37 Stickney Road, Map 23, Lot 32.

Mr. Polito read the request for rehearing. The contention of the appeal is the arguing about the cesspool not being a waste disposal system. Mrs. McGrath said it was pretty obvious to her that the whole tone and focus of the meeting was on arguing about the cesspool and whether it constituted a waste disposal system. It is so dominant that she recommended that there be a rehearing on it. Mr. Polito said the record needs to be clarified.

After discussion the Board agreed there should be a rehearing.

Mrs. McGrath made a motion to grant the request for a rehearing. Ms. Rochford seconded the motion and it was unanimously approved.

Minutes transcribed from tape

Respectfully submitted

Rebecca Russo Approved_______________________