Zoning Board Minutes dated October 13, 2004 were reviewed with the following corrections/additions made:

Page 4; First Paragraph, Second last sentence, after "could", add "be".

State of NH, Dept. of Safety, Div. Of MV dated 11/1/04 re: Atkinson Auto Body request for Auto Inspection,, 9A KipCam, Map 20, Lot 11. Motion to complete form to the Dept. of Safety, Div. Of M.V., that Atkinson Auto Body is in compliance with local ordinances and zoning was made by Mr. Friel, seconded by Mr. Lewis and unanimously approved.

State of NH, Dept. of Environmental Services dated 10/8/04 re: Attorney Campbell inquiry pertaining to shoreland setbacks.

Selectmen to John Henrickson dated 10/14/04 re: Service on Zoning Board.

Arlene Hawkins dated 10/13/04 re: Osborne proposed building, Hemlock Shore Drive.

Planning Board Legal Notice for meeting 11/3/04.

James Kirsch to Michael Saviano dated 11/8/04 re: 33 Boulder Cove Road.

Attorney Campbell to James Kirsch dated 10/19/04 re: Osborn Property, Rock Island.

Robert Balquist, Meisner Brem Corp. to James Paul dated 10/19/04 re: Osborn, 40 Hemlock Drive.

Attorney Campbell letter dated 10/25/04 re: David & Margaret Osborn, property Map 22, Lot 57.

Conservation Commission minutes dated 10/4/04.

Dr. Charles White, 29 Island Pond Road, Map 17, Lot 45 Application for Home Business Renewal.

Jane & John Goodwin, 23 Academy Avenue, Map 13, Lot 71 Application for Home Business Renewal.

Outgoing

Paul Goldwaite dated 10/19/04 re: Expansion of Non-Conforming approval, 35 Providence Hill Road, Map 7, Lot 30.

Michael Saviano dated 10/20/04 re: 33 Boulder Cove Road, Map 20, Lot 12 conditions withdrawal.

Attorney Campbell dated 10/20/04 re: Osborn Area and Wetland Variances, Hemlock Shore Drive, Map 22, Lot 57.

Dr. Charles White dated 10/27/04 re: Home Business Renewal.

Mr. Philip Consentino dated 10/27/04 re: Home Business Renewal.

Mr. John Goodwin dated 10/27/04 re: Home Business Renewal.

Mr. Eugene Lagasse dated 10/27/04 re: Home Business Renewal.

 

Attorney Bernard Campbell for Daniel and Margaret Osborn, request for a Variance from Article IV , Section 410:8 and Article V, Section 530 of the Zoning Ordinance to permit construction of a single-family home on a lot with 11,200 sq. ft. and a house setback of 31 feet from Island Pond as opposed to a required 3 acres and 100 foot wetland setback on property located at Hemlock Shore Drive, Map 22, Lot 57, RR3 Zone.

Abutters list was read with the following present;

Daniel and Margaret Osborn; Big Island Pond Association; AEH Realty; Mrs. Paul, Hemlock

Heights Association, Ms. Brown; Mr. and Mrs. Hawkins.

Mrs. Osborn explained that they have reduced the size of the house to approximately 1700 square feet, and pushed back the location of the dwelling to meet the 50’ setback to the lake. The house is now proposed to be 51’ from the waters edge. They will need variance to the side setbacks and the rear setbacks. There is a cantilevered deck that protrudes into the 50 feet. The Board believed this would be an issue, but agreed that if they approved anything it would have to be without the deck. The Osborns would then have to apply to the State for approval if they wanted to pursue that option.

There was some discussion as to whether the Osborns should get approval from the State first or the Zoning Board. Mr. Polito said in his conversation with the DES their first choice would be for the Osborns to obtain approval from the Board first and then go through the State. The Board agreed.

Mr. and Mrs., Hawkins who are the direct abutters on the side where the Osborn’s are requesting a variance down to 7’ from the property line are not sure if the lot line is correct as depicted on the plan. They believe there is a discrepancy in the boundary line and requested that a survey of the property be conducted. Mrs. Osborne stated that this had already taken place by Meisner Brem Corp., which is a registered land surveyor and that they confirmed that plan corresponds to the deed of the property. Mr. Friel also questioned the actual location of the lot line and asked Mrs. Osborn if they confirmed that the fence line was actually the lot line. Mrs. Osborne stated that she did not have a conversation with them about the fence/lot line because she was only made aware that there was a discrepancy tonight. Mrs. Osborne thought the lines were correct as she read the deed description and the meets and bounds of the deed corresponded to that of the plan. She said she would ask for confirmation in writing that the fence line is actually the lot line. Mr. Polito thought the fence line was the lot line, but again it needed to be confirmed because there were abutters that were questioning it.

Mr. Polito wanted to clarify that the driveway appeared to leave the Osborn’s property and went on another property. Mr. Polito asked if there were an easement. Mrs. Osborn’s understanding was that there was a deeded right of way that has always led to the access of their property. They are not paving anything outside of their property. They have always entered the property this way. Mr. Polito asked if Attorney Campbell has written anything stating that this is the case? Mrs. Osborn said that he did not, but again read the description of the deed, which included the right-of way easement. Mr. Polito said that the deed did refer to some plan that the Board did not have.

Mr. Friel asked if there were restrictions on pavement that needed to be followed. Mr. Polito stated that even if the proposal was 50’ from the shoreline, there are still some Shoreline Protection Act rules that need to be followed and that would have to be looked at. Mr. Polito asked Mrs. Osborn, if she had looked into this. Mrs. Osborn said that most of the paved driveways in that area end within 5 to 10’ of the water, but she was not sure what the guidelines are. Mr. Polito said that he was concerned because Attorney Campbell’s interpretation of what DES restrictions that are on this lot seems to be in conflict of what he got from DES. There needs to be clarification of what might be exempted from this lot and what is not.

Mr. Polito displayed the engineer’s plan for the abutters to review. Mr. Polito called for a five-minute recess to allow the abutters to review the plan.

Mr. Polito asked for abutter comments:

Mr. and Mrs. Hawkins claimed the fence was inside their lot line, which tells her that the variance is even greater than 7’. She requested that a survey be done and markers installed so that they can see. Mr. Polito said he believed the applicant understood this issue and was aware that before the Board could grant a Variance, the issue would have to be resolved. Mrs. Hawkins had a question about a nail in a tree and thought that whoever prepared the plan was indicating this as a lot line. Mr. Polito explained that this was just a benchmark for elevations. As direct abutters they were very concerned that the Osborns were requesting a variance down to 7’ from their lot line. Mrs. Hawkins was concerned about the parking up by the street and the possible damage to her well from this. Mr. Polito asked if this was downhill from her. She said it depended on how the water flowed. Mr. Polito said this would have to be addressed in the final elevations, but would guess that it was lower than her property. Mrs. Osborn stated that she had spoken to Meisner Brem with regard to both wells and told there would be no contamination. She will get that in writing for the next meeting. Mr. Polito said he was not aware of any regulations of paved driveways to wells. Mr. Lewis concurred. Mrs. Legault asked if the septic that was approved last year is still in the same location. Mrs. Osborn said that it was and is now 5’ further from the lake. It has not moved any closer to any abutters. Mr. Polito asked if the plan submitted to that state is still in effect. Mrs. Osborn confirmed that it was. Mrs. Legault was concerned with paving close to the shore. She was concerned about illegal parking in the fire lane by visitors to the Osborns and is very concerned about the people also going to the island. Mr. Polito asked what the fire lane was. Mrs. Osborn stated that to the best of her knowledge no one that ever visited her has parked in front of the beach. Mr. Polito said it was not the jurisdiction of the Board to deal with the matter. Mrs. Legault was concerned with the blasting. Mrs. Osborn stated that Merle Excavating and the drilling company that they use came out to the property and were asked what the extent of blasting would be. They told her that the ledge comprised of many different pieces of rock and that it would take hydraulic splitting, which is done by forced air. Mr. Lewis stated that even if they had to blast, the necessary precautions had to be taken and it was the responsibility of the company doing the work. Mrs. Paul was also concerned about the blasting and wanted to know if it was the company that had to have the liability insurance. Mr. Lewis said that it was the blaster who held the insurance. Mrs. Osborn said they would not know if any blasting needs to be done until they start the site work on the lot. Mrs. Paul asked if it were not the Towns’ liability if they issued a Variance and something happened while blasting. Mr. Polito said the Town does not have any liability in this issue and that it would be a civil matter. Mr. Hawkins was very concerned and felt that there would have to be ledge taken out, whether by blasting of hydraulic splitting and this was too close to his property. He asked if the Town was concerned about liability if a Variance was granted. Mr. Polito said the requirement for this lot would be 15’, and this would be a legitimate consideration of meeting the five criteria for the variance. Mr. Hawkins believes the liability should be given special consideration. Mrs. Osborn understood that they could not damage Mr. Hawkins property in any way. Mrs. Osborn said that when they were moving the house back, they considered what it would do to the cost of having to have the ledge removed. The area of the house that will be closest to the Hawkins’ property is the flattest piece of the property and originally where they had hoped to put the septic system. There is very little ledge in this area. Hemlock Heights Association is the direct abutter to the Beach and they do not want the driveway on their property. They claimed this was never deeded to them. All of the old deeds grant access to the roads. The roads in Hemlock Heights have only become town roads in the last 10 years. Everybody has those rights in their deeds. Hemlock Heights has always maintained that property where the proposed driveway location is. Mr. Polito asked where the Osborn’s driveway was now. Hemlock Heights said that it was understood that Mr. McCaughnty (the Osborn’s uncle) used it to get to his summer island for a seasonal cottage only and not for a home that will be used 12 months a year. This beach is an active beach 12 months a year. The snowplows put all of the snow in the same location as the proposed driveway. Hemlock Heights contends Chief Murphy has concerns because this is the fire lane. Mr. Polito said the Board has not received anything from the Fire Department. Hemlock Heights has a petition signed by 50 members stating they do not want the Osborns using their property and that they have had conversations with the Osborns telling them so. Mr. Polito said that he could not speak for the Board, but would probably have to speak with the Town’s Attorney. He does not know whether the access to this becomes a factor in the approval. Mr. Polito said that hypothetically they could approve the development of this property that uses that entrance and then the Osborns are sued by Hemlock Heights rendering the access unusable. Hemlock Heights has raised a good point and Mr. Polito is not sure what to do about it. Hemlock Heights asked if the Board wanted the petition. Mr. Polito said that it should probably be in the file, but he is not sure if it is relevant. If the Osborns had never crossed this before and it was a new access, it might be an issue. Hemlock Heights asked that it be explained to the Town’s Attorney that this is going to be for a year round dwelling. Mr. Polito suspected that at best the Attorney would say that the Osborn’s need to prove they have deeded access and that at worst is it is none of the Boards business. Hemlock Heights asked what the liability will be when one of the Osborns or their guests hits a child running back and forth to the beaches. Mr. Polito reiterated that he did not know if that was a factor for this Board. Mr. Lewis said that you couldn’t just run children over. Mr. Polito said that people have a right to develop their property and this is a condition that already exists. Hemlock Heights may have legitimate legal standing, but he does not know that. They also claimed that the Osborn’s have access from Hemlock Shore Road. The Board agreed they needed to confer with legal counsel on this matter. Mrs. Osborne said that she was also a member of Hemlock Heights Association, and has been at the meeting to help identify their concerns. To protect the integrity of the leaching field, access from Hemlock Shore Road is not doable. They have a State approved septic plan and cannot alter the driveway. They are not paving over the opening that Hemlock heights are speaking of. She takes the concerns into consideration because her children play on that beach as well. There is far more danger from cars going around the curve and speeding, than from them pulling in or out of their driveway at 5 mph. Mrs. Osborn has already offered her Attorneys’ services in doing research of what their legal rights were. Hemlock Heights refused the offer and thought it was a conflict of interest. Hemlock Heights said that Chief Murphy said there would be no fence going up because the fire department would use that area to get to the water if there was a fire. Mr. Polito stated again that Chief Murphy would have to have some sort of standing to do that and he is not sure if he has the jurisdiction. The Osborns stated that they would not be blocking the access. Hemlock Heights again accused the Osborns of blocking it during the summer. Mr. Polito said that anybody could be parking there and blocking it and that is an enforcement issue. Mr. Bonito was concerned about the parking at the top of the S curve and the provisions of the island property. Mr. Polito told him that was a separate matter and not relevant to this application. Mr. Bonito was concerned about the environmental impact. He was concerned about clear-cutting the lot and the removal of ledge. Mr. Bonito claimed he did a study that showed all of the waterfront properties and analyzed the square footage of 2 bedroom homes. Mrs. Bonito said she got the data from the tax cards and stated that the houses in this cove are very small and claimed that the proposed home was a "Settlers Ridge" type of home and did not fit into the area. She only included living space. Mrs. Bonito claimed that the average two-bedroom waterfront property in Chase Island was only 1550 square feet in total. The seasonal property was open to year round conversion and the possibility of expansion to double in size. The documentation that she provided compared what has happened in the last ten years with conversions and new construction. Mr. Osborn asked what the parameters as far as the size of a house were. Mr. Polito said that the Board had given affirmation that they had a right to build when they bifurcated the process and granted the approval of the Septic System. It seemed reasonable to the Board at that time to be able to put some sort of a two-bedroom structure on the property. He thinks the trouble is what the Osborns see as reasonable for a two-bedroom house may be very different than what the Board thinks the property can support. The Board has to determine what the appropriate size of the house is so that the lot does not impact the environment. Mr. Polito has a concern with the house being 7’ from the lot line as opposed to the 15’ is an indicator that maybe the Osborns are trying to build a house that is too big. When these lots were developed they were meant for 1 and 2 bedroom seasonal cottages. Mr. Osborn said that in determining the size of the house they considered the percentage of the use of the lot and how did it compare with the surrounding properties. They determined they were only using 16 to 17% of the lot. This seemed to follow well within what many house are utilizing now. Mr. Polito said this was probably a reasonable parameter. Mr. Polito said the 50’ back from the water seemed like the maximum they could do to be able to build on this lot. If the Osborns cannot meet the 15’ sideline there has to be a really good reason. What is the hardship? Is it a hardship not to be able to build the house of your dreams? If meeting the 15’ sideline setback made the house so small it were laughable, or rendered the lot unbuildable it would be a consideration. The same goes for the setback to the street. The real parameters are 50’ to 60’ for the shoreline, meeting the sidelines and coming as close as they could to meeting the setback to the street. Mrs. Osborn stated that they have spent the last month making this proposal environmentally friendly. The only reason they are encroaching on that sideline is to protect the integrity of the leaching field, which is the safety of the lake. Mr. Polito agreed but asked why the house has to be built so big to go within 7’ of the property line. Do they need a two-car garage? The Court has generally ruled that you cannot render a lot unbuildable, but by the same token the owner does not have a right to build whatever they think is suitable. As soon as you start requesting variances you are outside of the parameters of what can be built, so there better be a really good reason.

Mrs. Osborn claimed the Bonitos research was skewed because it included seasonal property and it did not compare the lot size to the home. Her lot was the fourth largest lot in the area. The Bonitos claimed the Osborns home had to blend into the neighborhood. The Board reviewed the data and determined that there were only two homes on the entire list that were year round that were smaller in square footage and close to the acreage of the Osborns. Mr. Polito reiterated that there are no hard and fast rules of the size of the home. They are entitled to put a two-bedroom house on the lot, with reasonable variances. Now it needs to be determined what the right size house is for this lot.

Mr. Polito asked Mr. Kukshnal what the Conservation Commission input was. He did agree that the Board would be willing to go with the 50’ to the shoreline. They are concerned about the proposed deck. They were concerned about the size of the house, but this was based on the previous plan and a 2200 square foot house. He cannot comment for the rest of the Board but he thinks the revised plan might be trying to squeeze a little too much onto the lot, but it is not as great of a concern as the distance to the shoreline. Mr. Lewis thought if the Osborns were 10’ from the sideline he would approve the plan without the deck and let the State deal with that part of it. Mr. Polito did not agree that going to 10’ was enough unless they had a compelling case for hardship. Mr. Lewis said there were a lot of houses around the lake that were closer than 15’ from the sideline. Mr. Polito did not recall any that had been approved by this Board. Mrs. Osborn gave the Board a floor plan of the proposed house. Mr. Lewis commented that the size of the rooms were very small. Mr. Polito agreed that the Osborns have made some good changes, but the hang-up is the 7’ to the sideline. Mr. Polito said he knew this was not the original house the Osborns had wanted to build. Mr. Polito said they might have to give up the garage or spend more money to move the house over more, but without demonstrating this is a hardship, it would be hard for him to accept that it is impossible to be 15’ from the sideline setback.

Mr. Polito reiterated that issues are the deck going into the 50’ setback. The Board can approve a plan without it and the Osborns can go to the State after for approval, but if it were granted they would still have to come back before the Board for a variance. They will need to check on the DES regulations regarding tree removal and paving of impermeable surfaces. Other issues are the identification of lot lines, and the Right of Way issue. It would be good to get some comparable setbacks on that street to get an idea about the 30’ setback requirement to the road. Are there regulations with regard to the additional parking area and impermeable surfaces?

Mrs. Osborn wanted to comment that there are at least three people sitting in the room tonight, whose houses sit closer than 50 feet to the lake that are anywhere from 1600 to over 2200 square feet of living space with smaller septic systems and more bedrooms.

Mr. Bonito said they are looking at the character of the neighborhood and claimed that although the house was moved back, it was pretty much the same plan. Mr. Polito said it was not. Mr. Bonito said this house would destroy the character of the neighborhood. Mr. Polito said the Boards consideration would be around setbacks and impact. How it looks from the street is not the Boards main concern.

The Board agreed to continue this for another month, but told the Osborns, that if it went past next month they would probably have to reapply.