Zoning Board minutes dated September 8, 2004 were reviewed with the following corrections/additions made:

Page 2, third paragraph, eighth line, after "roots", delete "cross".

Page 4, first paragraph, seventh line, after "later", delete "was"

Page 8, 3^rd paragraph, eighth line, after "would", delete "he would".

Page 9, first paragraph, third line, after "it", add "was".

Motion to approve the minutes as amended was made by Mr. Rockwell and seconded by Mr. Friel and approved.

Beaumont & Campbell to Conservation Commission dated 9/29/04 re: Meeting of 10/4/04 w/Conservation Commission.

Planning Board minutes dated 9/15/04.

Rockingham Planning Commission memo dated 9/16/04 re: 2005 Zoning Ordinance Amendment Schedule.

Budget printout for ZBA dated 9/29/04 and Budget Worksheet for Budget 2005.

Planning Board to Registry of Deeds dated 9/22/04 re: Carriage Chase Estates Subdivision Amendment plan.

Sumner Kalman dated 10/4/04 re: Notice of Decision Zannini vs. Town of Atkinson, request for admissions; Denied.

Sumner Kalman dated 10/8/04 re: Zannini v. Town of Atkinson; Request for Admissions and response; Defendant’s Request for Findings of Fact and Rulings of Law.

Chief Murphy memo dated 10/12/04 re: Hemlock Heights, Little Beach water access.

Abutters list was read with the following present:

Paul Goldthwaite; Michael and Beth Fletcher

Mr. Lewis recused himself.

Mr. Polito read a letter dated February 1979 from the then Selectmen indicating this business was a non-conforming use. The board agreed that they would accept this letter; with the understanding that it is at the risk of the applicant that someone else could come in and try to prove this wrong. Mr. Polito also told Mr. Goldthwaite that a non-conforming use can be expanded under 700:1, but there is an exclusion under 700:3, that prohibits the expansion of automobile repair/garages.

Mr. Goldthwaite understood and was not looking to expand the business. Mr. Goldthwaite proposed to replace the part of the building that housed the spray room. He wants to replace the end of the building so that it follows the same roof line as the rest of the fascia. This would improve the aesthetics of the building as well as the quality and function. It will bring the building up to code. He has been under pressure from his insurance companies to update the spray room to conform to UL standards and Federal fire code. There have been many improvements to update already, but the insurance company made recommendations that cannot be accommodated without the rebuilding of this area. His insurance has been dropped twice and he is now in the high-risk pool with his present insurance company. The best remedy for this would be to rebuild the area to house the UL approved spray room. This would eliminate any paint fumes in the area as well as reduce fire risks and health concerns within the shop. The Board reviewed plans of the proposed alterations.

There were no abutter comments.

The Board agreed that because this involved an alteration the applicant did require a Special Exception. The Board reviewed the conditions under 700:1.

This would not increase the traffic or business in the shop and they are replacing a spray room with a spray room. There is cleaner air. The Board agreed that there was no impact on the neighbors.

The Board agreed the environment, employees and the neighbors benefited from the changes.

Mr. Goldthwaite explained this would allow him to comply with insurance, fire and safety codes. The Board agreed this was met.

The Board agreed that this was met because there are no bathroom/plumbing facilities in the garage, except for a sink to wash hands. There is no sewage. The employees use the facilities in the house, which is serviced by a working well and septic system.

Mr. Lewis rejoined the Board.

Abutters list was read with the following present:

Daniel and Margaret Osborn; Attorney Campbell ; Emma Brown; Hemlock Heights Association; AEH Realty Trust; Lois Paul; Big Island Pond Association

Attorney Campbell explained that they had been before the Board over one year ago to start this variance process in order to develop their lot. He said that this lot was part of a subdivision plan filed in 1954. Attorney Campbell went on to say that the lot is one of the largest in this area at 11,200 square feet and the largest waterfront lot. He explained that there were some negative actions on parts of the application taken by the Board at the prior proceedings. At that time the Osborn’s withdrew and bifurcated the variance process. The Board approved a variance in October of last year for the septic system. The design was submitted to the State and approved by them. They are now before the Board to obtain a variance to allow construction of the dwelling structure.

The septic design plan does show the location of the structure and highlights the variances that are needed. One being the lot size itself and the other is the 100’ setback from the water. The building at its closest point is 41 feet and the deck is at 31 feet. Attorney Campbell said they had provided detailed house designs and the Architect, Mr. Siliverwatch, was present. This is a two-bedroom dwelling, with a two-car garage. This design incorporates an additional parking area at the top of the ridge. This was done to address the concerns of the Board regarding parking for the island. Including the parking in the proposed garage and paved area outside the garage doors, they believe that have met the requirements for the structure and any ancillary use that might result in the use of the island by related entities. Attorney Campbell stated that Mrs. Osborn would address some of the comparable properties in the area.

Mrs. Osborn presented a packet to each member of the Board, which had a color coded map and graph of the lake homes, depicting which houses were seasonal, year round and which had garages. Mrs. Osborn researched 75 properties and out of these, 59 were year-round properties and 16 are seasonal. Mrs. Osborn said that when she hired Mr. Silverwatch, he came to the property and gave his professional opinion of what would work and look good based on the topography of the lot. She then went to research houses in the area to see if they were in the ballpark of what was happening in the area. She included pictures and tax cards of other two bedroom dwellings, which were larger than what they were proposing. The Board reviewed the material. One of the abutters questioned the square footage of Mr. Henry’s home and said that it was less than Mrs. Osborn had indicated. Mrs. Osborn replied that this was listed as the final square footage on the tax card as of this week. Mr. Polito asked if she knew what the setbacks of all these homes were to the lake. Mrs. Osborn stated that Mr. Henry’s house is 50’ back and that it was built within the last 18 months. She would be guessing at the others, but they are much closer than Mr. Henry’s. Mr. Polito asked if Mrs. Osborn knew the history of how these houses got to be this way, because he said he did not remember granting variances as a board member in the last 12 years for new construction closer than 50 feet to the lake. Mr. Polito said that houses, which were closer than 50 feet to the water, might have been expanded within the same footprint by going up. Mr. Polito said that there could be cases that predate his involvement on the Zoning Board. Attorney Campbell stated that they provided additional survey material that would be addressed later in the criteria phase of the hearing. Attorney Campbell asked the Board if they had any questions with regard to the design of the home, because the architect was present.

Attorney Campbell explained that the other question that did come up, and is still unresolved, is an issue under the Shoreline Protection Act. Under provisions of 483 (b) (10), there is an exception for development of undeveloped lots. There is also an exemption under 483 (b) (19), where a community has a more stringent enforcement level than exists under the State Law, which is what Atkinson does. He has received inconsistent interpretations of this and how it plays out in this specific case. He had been advised under a different application that the exception under (b)(10), would mean that this site could be built on with just local approval. He has sent a letter to the State asking for a written confirmation of this. He does not have a reply yet. Attorney Campbell read the letter he submitted to Mr. Collis Adams. Mr. Polito asked if he had heard back from him. Attorney Campbell replied that he had heard back on the community provisions and that it only applies if the community has been certified by the DES. Atkinson is not. Mr. Adams indicated that further research was needed on the 483 (b)(10) exception. Mr. Polito stated that this was important for the Board’s ability to be able to act on this tonight.

Attorney Campbell had the Osborns attend the most recent Conservation Commission meeting. Attorney Campbell stated that the summary he received from the meeting was an appreciation for the effort and some of the design as far as the tending to issues for erosion control and provisions during construction, but they were still of a mind that their preference would be to meet a 50’ setback if that were feasible. Mr. Polito read a letter from Scott Kukshnall, the Chair of the Conservation Commission. The Commission voted to stand by their original decision (when septic approval was requested) to recommend denial of this proposal because they did not believe the applicants could meet the requirements of the Shoreline Protection Act. Mr. Polito also read an e-mail from Mr. Kukshnall regarding the exceptions under 483(b)(10), and stating that his interpretation was that the Osborns did have a right to build, but must submit to the State because conditions may be imposed, in which, in the opinion of the Commissioner, more nearly meet the intent of the Chapter while still accommodating the applicants rights. There were additional comments from Mrs. Hall.

Mr. Polito believed the applicant needs to work with DES and he would want to see a letter from DES backing up or not backing up the applicant’s assertion that they do not need an approval from the state. The Board agreed that section 483 (b) (10), provides an exemption of undeveloped lots, but needed further clarification from the State. The Board also agreed that they could not act on this hearing until they have had that indication from the State.

Mr. Polito said there were a few things that could be addressed at tonight’s meeting. Mr. Polito asked the applicant if they believed it would be impossible to build a house further back than 50’, and if so, what is that claim based on. He went on to say that he does not agree with it and is sure that a house can be put more than 50’ back from the lake. Attorney Campbell explained that he was not a design expert. Mr. Polito said that he would want to have a design expert tell him that a house could not be built more than 50’ from the shoreline. Attorney Campbell said they had a design expert there and they knew the slope of the property, as well as where the septic system is going. Mr. Polito asked for a professional opinion that a two-bedroom structure cannot possibly be built 50’ back or more is a pertinent piece of information. He would challenge that they would not get it. Attorney Campbell agreed but stated that Mr. Polito had a tendency to ask very draconian types of questions and look for an answer. He said of course a two-bedroom dwelling could be built there, but is it reasonable. Mr. Polito contended there was nothing in the variance criteria that talked about reasonableness. Mr. Polito gave the applicant 3 drawings that he had done in less than a half hour, as an example, to prove that with the grades, as shown on the applicant’s plans, a "reasonably sized" roughly 1,700 square foot two-bedroom house with a two-car garage could be constructed with greater than a 50’ setback to the lake. Mr. Polito made it clear that he was not suggesting that his drawings represented what the applicant should build, but only wanted to use this as an example to prove it could be done. Mr. Silverwatch contended that "reasonable" was a relative term and asked Mr. Polito what was a reasonable size bedroom? Mr. Polito said that State Wetlands and Conservation Commission do not want dwellings to be less than 50’ from the water. He went on to say that most two-bedroom houses in this town (not limited to lake front properties) have less than 1600 total square feet of living space. Mr. Polito suggested if the applicant is going to come before the Board and represent that there is such a hardship that they absolutely cannot build a house more than 50’ from the wetland, they are going to have some proving to do. He contended that the applicant may not be able to build the wonderful pretty house they want. It may very well be that this lot is suitable for a two-bedroom house, just not the one they want to have. That is where justice, spirit of the ordinance and other elements of the variance criteria come in.

Attorney Campbell asked in terms of procedure for tonight that he would assume that the Board would want to table this pending documentation from the State. Mr. Polito agreed but first asked Attorney Campbell if he wanted to open up discussion for abutter comment so that he would be able to utilize any input from tonight in preparation for the next meeting. Attorney Campbell declined.

Mr. Friel made a motion to continue to the next regularly scheduled hearing. Mr. Lewis seconded the motion and it was unanimously approved.