Incoming

Loyd McNeal from James Kirsch dated 12/18/03 re: Occupancy violation.

James Kirsch memo dated 1/5/04 re: LaPlante application for 4^th apartment.

Conservation Commission dated 1/13/04 re: Saba, 8 Brushwood Drive variance application.

Outgoing

Paul Currier dated 12/11/03 re: House Location Variance on Sleepy Hollow Road.

James Schultz dated 12/19/03 re: Home Business exempt approval.

Thomas Fisher dated 12/19/03 re: Home Business exempt approval.

Planning Board memo dated 12/18/03 re: Public Hearing on NFPA 1141.

Joseph LaPlante request for Special Exception as specified in the Zoning Ordinance Article VII, Section 700 to allow a fourth apartment in property located at 19 Sawyer Avenue, Map 3, Lot 111, an existing non-conforming use multi-family in TR2 Zone.

Abutter list was read with the following present: Mr. LaPlante, Mr. and Mrs. Stuart; Attorney Patrick Devine representing Mr. LaPlante

Attorney Devine explained that Mr. LaPlante purchased the property in 2002, but had been living there since 1992 and believes this is a pre existing non-conforming use in that it is a three apartment building. Mr. Polito stated that he had reviewed this file and has seen nothing in the record that gives him enough information to say that this application has standing as a legal non-conforming use. There is no information that it (the apartments) was established legally before zoning changed to be more restrictive. Mr. Polito hoped Attorney Devine had something in his records that can establish this as a legal non-conforming use. Mr. Polito stated this would have to be heard as a variance request if it could not be established as having predated zoning. To fall under Atkinson’s special exception for expansion of a non-conforming use, this use would have to have predated the more restrictive zoning. Attorney Devine explained that he had nothing outside of the Town records that refer to this as a three-unit apartment dwelling. They applied under the Special Exception because all Town records refer to this as a non-conforming use. Mr. Polito stated that there has been some research on this and reviewed the entire file. Mr. Polito read the minutes of 1990 ZBA hearing in which the Board agreed that the apartments were not put in with the proper approvals. The minutes stated that the Board could not entertain the expansion of a non-conforming use (fourth apartment). The Board referred to this at that time as a non-conforming use. Mr. Polito believed the Board meant non-compliant , not non-conforming. Mr. Polito said that it were a non-conforming use, the Board would have been able to entertain an expansion of the use. There was a consensus of the Board that the minutes of 1990 were meant to state that this was non-compliant. There was a building permit in 1975 for a two-family apartment. Mr. Polito remembered that the zoning changed sometime around 1980. Based on the assessment cards for the property, it appears that at some point after 1980, the apartments were expanded without the benefit of building permits.

The Board agreed that this might be a legal two-family use but said that the applicant should confirm this. After 1975, the only legally issued building permit was for the conversion of a barn to a two-car garage. There is nothing in the record for the third or fourth living unit. The Board agreed that this application could not be heard as a special exception because there is nothing that shows this was a legal non-conforming use that predated zoning. Mr. Carter stated that he believed the application would have to be for a Variance. Mr. Polito suggested to Attorney Devine and explained that it was up to him to present evidence and establish this three-unit apartment as having standing. Attorney Devine said that they would withdraw the application and do due diligence to establish this use as legally non-conforming or come back with an application for a Variance. Mr. Polito stated the Board would need to have a clear indication that this was a legally established use that pre-dated the more restrictive zoning as well as proof that the use has never been abandoned. Mr. Carter wanted to be clear that this also was necessary for the third apartment because there is no proof that this is legal. Attorney Devine understood.

A list of Abutters was read with the following present:

Mr. Saba, Kevin Camm from KLC Land Planning, Mr. Brusesse

Mr. Polito asked for an overview of the project and the relationship of the two requests for wetland setback relief (50’ for detached garage and 14’ for house). Mr. Camm explained that this was the last empty lot on Brushwood Drive. He said the developer started this project in 1990 and when the original plan was approved there was not a 100’ wetland setback for detached garages. Mr. Polito disagreed and said there was only a one or two year time frame where detached garages were not included in the 100’ setback. There was discussion among the board and it was agreed that the zoning that allowed detached garages less than 100’ to wetlands was in place for only a few years and neither the applicant nor the Board could immediately ascertain what years that was. Mr. Camm believed that RSA 674:30 talks about subsequent zoning and vested rights. Mr. Polito explained that he believed that RSA applied to lot line , acreage, etc. and not wetlands as wetlands fall under zoning to protect health, safety, & welfare. He said that when there is a change in zoning of wetlands, it affects every lot in town including existing lots. Mr. Camm stated this would have been permitted when the project was started and plan approved and now it is not. The Board did not all agree with this statement. Mr. Camm said that Mr. Saba would present his application and if the Board walked the site, they would get a feel for the lot and the placement of the house with three car attached garage and detached two-car garage. It provides the most buffer for his neighbor and is central on the lot. Mr. Polito asked how big the house was. Mr. Saba stated that it was a 3900 square foot house that has a three car attached garage. Mr. Polito stated that the Hardship criterion was going to be hard to meet for the detached two-car garage. Mr. Camm said that it was because of the Simplex case. Mr. Polito explained that Simplex granted the right to reasonable use the land for the purpose for which it was sub-divided but did not give carte blanche to put anything on that land.

Mr. Saba stated that they were working with the contour of the lot. It is very steep on the right side and they are working against the contour. He contended that he could fit what he was proposing in the buildable envelope if he mirrored the house and garage and squeezed it between the lot lines. He does not believe that would do justice to the lot, the subdivision, the neighbors and himself. His neighbor asked that there be as much of a buffer as possible. Mr. Saba said he wanted the additional two car detached garage because he currently has that now, and needs storage for his boat and his "toys". There will not be any automobiles stored in there. If he did not have the additional garage, he could clear right up to the line near the creek and park anything he wanted to there. He wants to keep the area in its natural state and just use the garage for storage. Mr. Polito asked if he were a builder and if so would any of the equipment for his business be stored in the garage. Mr. Saba said that shovels, rakes and a bobcat in the winter would be all that was stored in there. Nothing related to the business. Mr. Saba said that he went to the Conservation Commission and they were in favor of his proposal. Mr. Polito read the letter from the Conservation Commission. Mrs. McGrath asked where the neighbor’s houses were located. Mr. Saba explained. Mr. Camm explained that he pulled a plan out a copy of a plan showing a small part of the development and it shows that the wetland is in essence a ditch line. Mr. Polito said this is what he was looking for and that this showed the buildable envelope. He stated that the applicant knew when he bought the lot, what the buildable envelope was. Mrs. McGrath believed the detached garage would not have been an issue when the original subdivision was approved because of the zoning at that time, but did agree it had changed in 1998, before the applicant bought it. Mr. Polito stated that the Town’s People voted in the zoning changes and the Board had to abide by the Zoning in place. Mr. Saba was asked how big the garage is and he stated a 24’ x 28’. Mr. Polito stated that this was as big as a house. Mr. Saba stated that it needs to be that big to accommodate his boat. Mr. Polito stated that the applicant could present his response to the 5 criteria but the he already sees a very big house with a three car garage attached and it will be hard to demonstrate hardship associated with the addition of a 24’ by 28’ two car detached garage.

Mr. Camm contended they could fit everything in the buildable envelope but would have to rip down all of

the trees. They are looking to do the same thing with a little more room. Mr. Polito asked him to explain

how he would affect the abutters if they kept in the buildable envelope as the applicant did not provide plan to back up what Mr. Cam asserts. Mr. Camm showed how close the house would be to the sidelines. Mr. Polito stated that as long as they met the sideline requirements, there were no legal issues. Mr. Camm contended the applicant would need more room to maneuver into the garage than the 30’ that would be available. The topography would also limit the maneuverability. Mr. Saba stated that he would have to change the contour of the slope, and would have to clear ½ acre of trees. He would be creating an unstable situation, which would now slope into this wetland and he would be putting impervious material down. Mr. Polito believed the applicant could still build a good size house that would fit into the buildable envelope. Mr. Polito wanted to take the detached garage off the table right now and deal with these two requests individually starting with the house only. Mr. Polito reiterated that nothing has changed in the zoning regarding the house. Mr. Saba contended that a lot has changed in the market and that bigger houses are being built. Mr. Polito stated that the developer of this parcel put in a reasonable size buildable envelope and was a deliberate part of the planning process. Mrs. McGrath said that you should acknowledge that the size of the average dwelling built in 1994 was substantially smaller than what is being built in this Town today. Mr. Polito did not agree and said the applicant would have to demonstrate that the average size house in this area was 3900 square feet with a detached garage. Mrs. McGrath would not make the condemnation that the builder should have known that the sizes of homes would have increased to what they are now, ten years later. Mr. Henrickson said the issue was not that he was constrained by the building envelope. He has enough space to construct a much larger house but has chosen to construct a particular style and placement that does not fit. Are there reasonable options or is the Board being forced into considering a variance. Mr. Polito believed the builder had an intent in mind when the plan was approved by the Planning Board and hardship is not created because there are larger homes being built elsewhere. Mr. Polito said a 3900 square foot home with a 3 car attached garage is a reasonable use of this property. Mr. Saba reiterated that he could put everything including the detached garage in the "buildable envelope". There would be no trees left anywhere on the lot because he would have to take them all down, the lot would look terrible and he would be very close to the neighbors. They put very careful thought into this plan and tried everything possible to have the least impact on the wetland. They are keeping a buffer of trees and the backyard will be forested. There is no opposition to the proposal from the abutter he spoke to. The hardship is the contour of the lot, and this is the home they want. The Board discussed moving the house but the applicant was not interested in the loss of the detached garage. Mr. Saba contended that because he could fit this into the buildable envelope, but did not want to because of the lot contour and damage to the trees that would result, that was his hardship. Mr. Polito said the house could be shifted 14’ and maintain an 18’ buffer to the lot line. Mr. Brusesse was in favor of the plan, but asked that a buffer be maintained.

Mr. Camm explained that there is a stream in the back and if the house is moved it will have a greater impact on this stream than on the wetland, which is basically poorly drained soil.

The Board agreed to vote on the house and garage as separate entities.

The Board reviewed the criterion for the variance for the house

1. The Board agreed this criterion was met based on the discussions.

The Board asked where the buffer was because it was not depicted on the plan. Mr. Camm explained that there was at least fifty feet between the lots. Mr. Saba agreed to maintain a 25’ vegetative buffer. The Board agreed this criterion was met

a) Based on the discussions the Board agreed that this criterion was met

b) With the addition of the vegetative buffer, the Board agreed that this criterion was met

c) Based on the discussions the Board agreed that this criterion was met

4. Based on the discussion the Board agreed this criterion was made.

5. Based on the discussion the Board agreed this criterion was made.

The Board then moved on to discussion of the request for a 50’ variance to wetlands for the 24’ by 28’ detached garage. Mr. Polito asked Mr. Saba about getting a soil scientist to evaluate the value of the wetlands. He pointed out that the plan does not distinguish where the stream is vs. the poorly drained soils. Mr. Camm said such a plan might not be feasible to produce until spring and Mr. Saba said he could not wait that long. Mr. Polito stated that he did not think he could support a variance tonight without that information . Mr. Polito has concerns about the stream and not knowing its location and value. He also does not think a 3900 square foot home with three car attached garage, but not being able to have an additional detached 24/28 garage meets the criteria of hardship. Mrs. McGrath contends that hardship is when it interferes with reasonable use and contends this is reasonable use to the applicant. Mr. Polito disagreed 100% because anyone could come in and say they wanted a 40-story building because it was reasonable to them. This would not make any sense. Mrs. McGrath asked if there were no wetlands on the property, would it be a reasonable use to have an additional garage. Mr. Henrickson said the question becomes is it reasonable giving the unique setting of the property. Mr. Henrickson stated it would be a reasonable use if the land permitted it. Is this a sufficient requirement to force the Board to set aside zoning? Mr. Polito said that there is nothing unique about this problem of placing an additional garage on this property, many if not most of the houses in that development have setback to wetlands restrictions which would not allow placement of a large house plus a large detached garage. Mrs. McGrath stated she was reading this from the book and Mr. Polito stated she was interpreting, not reading. Based on the concerns the Board has, Mr. Polito asked Mr. Saba if he would like to continue the hearing to try to address the Board’s concerns or would he like to proceed to a Board vote tonight. Mr. Saba said he wanted the Board to act on his application tonight.

The Board reviewed the criterion for the variance for the garage:

The Board reviewed the criterion and agreed it was met.

The Board agreed that with the 50’ "natural vegetation" buffer from the wetland to the building this was met.

a) Based on the previous discussions there was a consensus of the Board that this was not met by a vote of 4 to 1

b) Because there are no details on the quality of the wetlands, other than the Conservation Commission letter, there was a consensus of the Board that this was not met, by a vote of 3 to 2

c) The Board agreed that based on the discussion, this was met.

There was a consensus that this criterion was not met by a vote of 3 to 2.

The Board agreed that this was met based on prior discussions.

Mr. Polito thought if the wetland value was determined and steps were taken to protect it the spirit of the ordinance would have been met. Since this was not done and the applicant did not present this information, there was a consensus of the Board that this was not met, by a vote of 4 to 1

Minutes transcribed from tape Respectfully Submitted