The following amendments/corrections were made:

Page 1, Incoming Correspondence, Number 9, delete entire sentences starting from "Application was incomplete" and move to Number 8.

Incoming

Home Business Renewal Application – Jolanta Jasiak, 22 Wood Drive, Map 7, Lot 175.

Attorney Bernard Campbell to Attorney Sumner Kalman dated 12/28/05 re: Mary Ann Casey.

Attorney Sumner Kalman dated 12/5/05 re: Hammond v. Town of Atkinson, courtesy copy of "Appeal of ZBA.

Planning Board Legal Notice for meeting of 12/21/05.

Attorney Sumner Kalman dated 12/12/05 re: Hammond v. Town of Atkinson , Motion to Intervene by Attorney David Groff.

Planning Board Legal Notice for meeting of 1/4/06.

ZBA Budget Printout dated 12/31/05.

Sumner Kalman dated 1/9/06 re: Town of Atkinson v. Michael Saviano.

Sumner Kalman dated 1/9/06 re: Hammond v. Town of Atkinson, Intervention Granted.

Outgoing

John Paszko dated 12/2/05 re: Home Business approval as Exempt Status, for John’s Lawsn, 16 Village Drive, Map 17, Lot 86-61.

Mary Gullo dated 12/2/05 re: Home Business renewal approval for Piano Teacher, 15 Hawthorne Drive, Map 7, Lot 42-1.

Jeanne Blair dated 12/2/05 re: Home Business renewal approval for ’55 Merrill’, 26 Merrill Drive, Map 7, Lot 199-21.

John Sinclair dated 12/2/05 re: Home Business renewal approval for 42 Salem Road, Map 2, Lot 3.

Attorney Bernard Campbell dated 12/2/05 re: Denial of rehearing request for Mary Ann Casey, 36

The Board reviewed the application for Jolanta Jasiak. Ms. Rochford made a motion to approve the request for renewal based on the application as presented. Mr. Friel seconded the motion and it was unanimously approved.

Michael Chambers request for Variance from Article V, Section 530b of the Zoning Ordinance to allow frontage of 193.54’ (variance of 6.46’) as opposed to the required 200’ frontage for property located at 43 & 43A Main Street, Map 4, Lot 5 TR2 Zone.

Abutters List was read with the following present: Michael Chambers; James Lavelle Associates

Mr. Lavelle explained that the applicant was trying to subdivide a 5.27-acre parcel of land. This was originally two lots and has been combined into one however Mr. Lavelle did not know when.. They are proposing to create a vacant lot of 3.12 acres, leaving 2.15 acres with the existing dwellings. The property is unique because it is split up and has two sections of frontage. There is 193.54 feet, which exists between the two neighboring properties. The newly created lot would have 336 feet of frontage. There is no way to create additional frontage on the existing lot unless they made the proposed lot in an undesirable shape. Mr. Lavelle looked at the special exception and it just missed having the 200 feet at the building line. Mr. Polito asked what is on the property on the existing lot. Mr. Lavelle explained that there are two homes. An existing farmhouse, a barn and another home that has been on the property since about 1968 and is a rental property. Mr. Polito asked if there were any history on this property that shows the rental dwelling is a legally existing unit. The zoning, since before 1968 has been to allow only one dwelling unit on a lot. Mr. Polito said that this may or may not have been grandfathered depending on the history. Mr. Chambers explained that he bought it from Mr. Ashford, who bought it from his parents. Mr. Lavallee reiterated that this lot was originally two lots and was combined at the Town level. They do not know when it was combined. Mr. Polito asked if it were Mr. Chambers’s intention to maintain two dwelling units on the one lot. Mr. Chambers said it was not his intention to change it. Mr. Polito said the Board would have to consider it as part of the variance. They would be creating a lot that had two dwellings on it. Mr. Lavelle stated that it is already a lot with two dwellings on it. Mr. Carter questioned whether it a legally established use. Mr. Polito said that even if the Board presumed it were grandfathered, by subdividing the lot, it would render it less adequate. Mr. Lavelle contended that a variance would not render the lot less adequate. Mr. Polito said that for the sake of argument, if it is a legal grandfathered use, you are taking a 5 acre lot, that currently supports two dwelling units and subdividing it so that 3 dwelling units would now occupy the same acreage. When you subdivide, you are starting from scratch and essentially have to create two lots that conform to today’s zoning in that zone. Today’s zoning does not allow two dwelling units on a two-acre lot. Mr. Carter said the zoning does not allow two dwelling units on any size lot. Mr. Polito reiterated that Mr. Chambers intended on maintaining the two dwellings on one lot. Mr. Polito asked if the lot met all of today’s setbacks. Mr. Lavelle said that the existing house does not meet current setbacks. Mr. Polito asked if the proposed vacant lot meets all of the current zoning. Mr. Lavelle confirmed that it met all of the current zoning. Mr. Carter contended they would be creating an illegal lot. Mr. Polito said they would be creating a lot with two dwelling units; the frontage requirement and both sideline setbacks would not meet current zoning. There are no wetland issues.

Mr. Carter asked how the lots were combined. Mr. Chambers explained that Mr. Ashford owned parcel one and eventually purchased parcel 2. Mr. Chambers said the home he lives in was built in the 1800’s. The two properties in the middle were developed in the early 1900’s.

The Board reviewed the criteria.

Mr. Lavelle said there would be no change that would affect the property values. Mr. Riehl did not agree that this would not affect surrounding property values. They were creating another lot that would probably have a new house. Mr. Polito agreed but asked if it diminished property values. Mr. Riehl said that it did to some extent. If he lived in one of the properties in the middle, he would rather have an open field behind him. Mr. Polito said that an argument could always be made in that case, but questioned if it really diminished the value. Mr. Carter agreed. The Board agreed with a vote a 4 to 1 that this was met.

Mr. Polito said the variance is for the lot that has the two dwellings. Mr. Riehl said the first plan that was submitted to the Planning Board had the required frontage for both lots. Mr. Riehl asked if there were an arc that ran around the existing two lots in the middle. Mr. Lavelle explained that is exactly what they did. Mr. Polito contended that under the current definitions of a lot, you couldn’t have a cut up lot. Mr. Lavelle said there is enough area to make the lot conform, but that they did not think that was the best avenue to take. They spoke with the Planning Board, to get their input and decided to come before the Zoning Board. Mr. Carter said he hoped the Planning Board would have had the applicant come before them anyway because there are two dwelling units on one lot. Mr. Riehl said this would enable 3 dwellings on 5.7 acres instead of the 6 acres or more required under current zoning. Mr. Carter said it is worse because it is enabling 2 dwellings on two acres, which is not allowed under current zoning. Mr. Polito did not believe this was pertinent to this criterion, but that it could be in consideration of Hardship and Spirit and Intent of the Ordinance. The Board agreed with a vote of 3 to 2 that this was met..

Mr. Lavelle argued that the special conditions of this property and the uniqueness are the separation by the two lots in the middle. Mr. Polito said there are two dwelling units, which share 500’ of frontage, so they would be conforming under current zoning and that they share a little more than 2 acres each, but they are next to each other. They are really asking to get 3 dwelling units into 500 feet of frontage and 5 acres. Mr. Polito is having a hard time understanding what is unique. Mr. Lavelle said the uniqueness has nothing to do with the two dwellings units, but rather that the access, which with it is accessed now, has less than 200 feet of frontage. Mr. Polito said this would be true if it was only one dwelling unit, but this has two. Mr. Polito read an excerpt from NHMA regarding this issue. The Board contended this proposal would render the current lot proportionally less adequate. Mr. Carter believed he would need 6 acres and 600 feet of frontage for three dwellings. Mr. Polito stated that there are already two dwellings on the lot. This would be an expansion of a non-conforming use, thereby rendering it less adequate. The density would be increased. Ms. Killam said they encountered a similar situation a couple of years ago and the solution was to disable the rental unit. She suggested it would probably be economically smarter to disable the rental property, remove it from the equation and come back before the Board.

Mr. Chambers said he would like to continue, but is having a hard time understanding how the Board is claiming he is changing the density of the land. The houses already exist next to each other and are separated from this other area of land by the two properties in the middle. There is nothing existing in the other area. Mr. Lavelle said there were two lots that existed there previously and the Town combined them. He claims they are increasing the acreage of what was there prior to the combining of the lots. Mr. Polito said the applicant would have to demonstrate that the Town combined the lots. They would have to show the plans and the original configurations of the lots. Mr. Polito cautioned that the Supreme Court is about to hear a case from the Town of Atkinson that involves the issue of the combining of lots. Until they make a decision the Board will abide by the Town’s right to legally combine lots.

Mr. Lavelle said they would like to consider their options and requested a continuance.

Michael Cronin request for Special Exception as specified in the Zoning Ordinance, Article VII, Section 700:2 to allow conversion of a Seasonal Dwelling to Year Round status on property located at 11 Hemlock Shore Road, Map 22, Lot 106 & 113, TR3 Zone.

Abutters List was read with the following present: Michael Cronin; Hemlock Heights Imp. Assoc.; Mist RT; James Lavelle Associates

Ms. Rochford recused herself from this hearing.

Mr. Lavelle explained that Mr. Cronin is proposing to convert a seasonal home into year-round status. He presented the septic design, which is a system on the neighboring lot. There have been easements recorded for the use of the well at the Registry of Deeds. The plan was submitted to both the State and the Town of Atkinson. It meets all of the requirements. The system is designed for four bedrooms. Mr. Polito wanted the record to be clear that Mr. Lavelle informed the Board that well radiuses have been met on all adjacent properties as well as the septic to well radius. Mr. Polito wanted clarification that the lots are under separate ownership. The applicant confirmed that the lots are under separate ownership. Mr. Polito said that he was not aware of anything that prevented the applicant from sharing a state approved septic system. Mr. Polito asked Mr. Lavelle if the well had the ability and capacity to service two separate dwellings. Mr. Lavelle said that he did not have any information on that. Mr. Polito said that may have to be a condition of approval.

The Board reviewed the application and criteria under Section 700:2.

There is written consent by the State by virtue of the stamp on the septic plan. The Board agreed this criterion was met.

The Health officer stamped the plan, but there is no letter from him indicating that the conditions of WS300 are met. The Board agreed this would be a condition of the approval.

There is written consent and approval from the State of the septic plan. There was a consensus of the Board that this was met.

Paul Lavallee request for Variance from Article IV, Section 410:8 of the Zoning Ordinance to allow construction of a 30’x30’ residential garage 75’ from wetland (25’ variance) as opposed to the required 100’ on property located at 14 Kings Grant Drive, Map 12, Lot 41, TR2 Zone.

Abutters List was read with the following present: Paul and Katia Lavallee

Ms. Rochford returned to the Board.

Mr. Polito read a letter from the Conservation Commission, which supported the request.

Mr. Lavallee explained that they wanted to build a 30’ x 30’ garage and it would be about 75’ from poorly drained soil..

Mr. Polito explained that because there is a proposed zoning change of 100 feet to150 feet to a prime wetland, that has already been posted, the applicant must use the zoning as if the proposed changes had been approved. Mr. Polito asked Mr. Lavallee if he were 150 feet from the prime wetland. Mr. Lavallee said that he is about 160 feet. Mr. Polito explained that the Board would be dealing with what was before them, but if the request was granted and the applicant went forward they would be at risk until the proposed zoning change was adopted or denied. The Board informed the applicant that if they think they were anywhere near that 150’ they should have a survey done to be sure where the prime wetland starts. The applicant was aware of this. The Board does not have a problem dealing with just the 100’ set back to the non-prime wetlands at this time and they will act on this application as presented. Mr. Polito reiterated that, if the wetlands ordinance changes requiring 150’ to prime wetlands, and the applicant was incorrect that there proposed garage meets that requirement, the applicant understands they assume responsibility for not being in compliance with the 150’ requirement.

The Board reviewed pictures from the applicant that showed where the proposed garage would be, the "non-prime wetland area" and the topography of the lot. Mr. Polito said that he was familiar with this area and that the beavers have contributed to the size of this prime wetland. Mr. Jones confirmed that you could walk through this area at one time and concurred that the beavers have contributed greatly to the water.

The Board reviewed the criteria.

There was a consensus of the Board that this was met.

The Board agreed this was an area variance. Mr. Polito believed there was no way to move the proposed addition to another location because of the topography and grade of the lot. There was a consensus of the Board that this was met

1.) There was a consensus of the Board that this was met

2.) There was a consensus of the Board that this was met

There was a consensus of the Board that this was met based on the discussions.

There was a consensus of the Board that this was met based on the discussions.

Minutes transcribed from tape.

Respectfully submitted ______________________________

Rebecca Russo Approved