Zoning Board Minutes dated November 10, 2004 were reviewed with the following corrections/additions made:

Page 2; First Paragraph, first sentence, after "feet", add "and".

Page 3, First Sentence, after "restrictions", change "this" to "that".

Page 3, Third Paragraph, halfway through, after "drilling company that", delete "it out sources to" and add "they use".

Page 4, one quarter of the way done after "deeded access and", delete "the" and add "that at".

Page 4, one quarter of the way down after "the waterfront properties", change "that" to "and".

Page 4, three quarters of the way down, after "the use of the lot and how", delete "did that" and add "it".

Page 5, third paragraph, after "concern" change "than" to "as"; after "Mr. Lewis said there were", delete "a lot of" and add "many"; change "house" to "houses".

Page 5, fourth paragraph, after "street to get" change "and" to "an".

Rockingham Planning Commission Technical Advisory Memo re: Recommended Regulatory Changes.

Zoning Board Budget printout dated 11/29/04.

Home Business Application for Brian Donnelly, 11 Woodside Way, Map 18, Lot 13.

Arlene Hawkins dated 11/30/04 re: Osborn proposed new building, Hemlock Shore Drive.

Planning Board Legal Notice for meeting of 12/15/04.

Home Business Application (replacement of Gofer Errands) for Julie Fortin, 56 Academy Avenue, Map 14, Lot 72.

Attorney Sumner Kalman dated 11/15/04 re: Zannini v. Town of Atkinson Judges Order.

Home Business Renewal for Philip Consentino, 140 Main Street, Map 13, Lot 23.

Home Business Renewal for Eugene Lagasse, 40 Academy Avenue, Map 14, Lot 56.

Attorney Sumner Kalman dated 11/30/04 re: Zannini v. Town of Atkinson Motion for Reconsideration/Modification.

State of NH, Dept. of Environmental Services dated 12/7/04 re: Osborn proposed development Hemlock Shore, Map 22, Lot 57.

Outgoing

Dr. Charles White dated 11/15/04 re: Home Business renewal approval.

Jane & John Goodwin dated 11/15/04 re: Home Business renewal approval.

ZBA members memo dated 11/18/04 re: December meeting date.

Zoning Board Legal Notice for meeting 12/8/04.

Zoning Board proposed budget 2005.

Kimberly Hess request for Special Exception/Home Business as specified in the Zoning Ordinance, Article IV, Section 450 to operate "Neoclassic", an Art Studio at property located at 154 Main Street, Map 17, Lot 75, RR2 Zone.

Abutters list was read with the following present: Curtis Ciacetta & Kimberly Hess

Ms. Hess explained that she wanted to instruct art classes. There would only be one student at a time and she hopes to have at least one student every day. She would be the only employee and does not expect to work more than 20 hours/week. There is plenty of parking and the business only takes 10% or less of the dwelling. The proposed sign meets the ordinance and the only employee will be Ms. Hess.

Abutters list was read with the following present: Mr. and Mrs. Osborn; Big Island Pond Corp.

Mrs. Osborn said she had not yet received anything back from the State. Mr. Polito concurred that the Board had not received anything either. Mr. Polito said it would be difficult to adequately review and give an approval without the State information, but thought it was worth going through the application since this was new and there were substantial changes.

Mr. Polito read the application and wanted to note a correction that this is not to allow an existing non-conforming structure, because part of it was built without proper application. The structure was non-conforming, but the addition is illegal and needs variances.

Mr. Polito said that the major concern in the denial of the previous application was around the septic system and the affect on the lake given the increased size of the house. There are two new elements of this application that qualify it for a new application, one being a proposed holding tank and the other, a composting toilet. There was a consensus of the Board that this constituted a new application.

Mrs. Osborn felt since there were no new bedrooms added, and that they had provided information that the current system was in good working order, which included testing by Hugo Findeisen, extensive work by a Rooter Man and a visit by the Town’s Health Officer, the Board should have been satisfied. After the original application failed on the fifth criteria, they set out to see how they could satisfy the Board that the water quality was safe and would continue to be so. Because the Board had mentioned before that there was no backup system in place in case of failure, and on the suggestion of the Health Officer, the Osborn’s are proposing a holding tank that would work as a backup system. This proposed plan has been signed off by Mr. Chamberlain, but has not been approved by the State. There have been conversations between the State and Hugo Findeisen. Mr. Findeisen is satisfied that they will be able to come up with a backup system, even if it is not the holding tank system. Mr. Polito asked for clarification, is the intent to have the design on record in case of failure or did the Osborn’s plan on putting that system in now. Mrs. Osborn said it would be in case the current system failed. Mrs. McGrath stated that whenever there is a conversion the Board only requires a backup plan to be in place. Applicants are not made to install a system when it is not in failure. Mr. Polito asked Mrs. Osborn if she knew whether the state would accept a holding tank, or suggest something else. Mrs. Osborn said she did not know.

Mr. Polito asked about the composting toilet and whether the Osborn’s planned to install that now. Mrs. Osborn gave the Board an information sheet of the composting toilet that they have already purchased for the property. Mrs. Osborn said even though they have already spent extensive amounts of money to show that the current system is in good working condition, and that this is a seasonal property, they purchased this composting toilet and are proposing to put this toilet in an out building that is already existing and adjacent to a swimming area on the lot. This will be a secondary system. Mr. Polito said that he would like to see two of these put in and get rid of the toilet in the house. This way they would be removing all fecal coliform bacteria from the existing system and it would service only gray water. What they are proposing will help some, but is not a guarantee that the system will not fail. Mrs. McGrath asked Mr. Polito if he were suggesting the Osborn’s remove their existing toilet and thought this was unfair and an unreasonable request. Mrs. McGrath asked who would ever want to remove a flush toilet from a house and put in a composting toilet, while the septic is not in failure? Mr. Polito said if this were done there would be no chance of contamination to the lake. Mrs. McGrath thought this was unreasonable. Mrs. Osborn said this proposal was to preserve the septic system. They have not added bedrooms, but feel they are adding a secondary system to help with visitors to the island. She realizes that they made a very big mistake, by constructing this without a permit, but they have also gone to considerable expense. They are trying to prove they are not looking to overtax the system. The current system is functioning properly and there have been no issues with it. Mrs. Osborn also provided water testing analysis, comparing the area around her property to that of a little beach around the corner, which showed the surrounding waters to the island have not been contaminated. Mr. Polito claimed he did not suggest that the water was contaminated but the Osborn’s could not guarantee the longevity of the system. Mrs. McGrath reminded Mr. Polito that no one could guarantee the longevity of any system.

Mrs. Osborn said they are suggesting a holding tank system, which would replace the septic system in the same place, should it fail. It is a proposed 1500-gallon tank, which meets all of the required setbacks. Mr. Chamberlain has signed off on it and it has been forwarded to the State for approval. Mrs. Osborn said that in her conversation with Hugo Findeisen, he has claimed the State will be able to come up with another solution for a replacement system, if they do not want the holding tank system. Mr. Polito said this would be key to him. Mr. Polito said the only question is how would the Osborns know if it failed. Mrs. McGrath asked how anyone else would know. Mr. Polito said there was a difference because not everyone would be polluting a lake.

Abutters comments: Ms. Legault, said she knows that composting toilets should be used on an island and would feel very comfortable with there being one on this property with no flush toilet. Big Island Pond Corp. said they would feel more comfortable having the State input on the issue before a decision was made. He is glad there will be a composting system out there, but not that a regular toilet will remain as Mrs. Osborn proposes. Mr. Bonito asked why the Board was not addressing the illegal structure, runoff and erosion. Mr. Bonito claimed the State told him they would not approve a holding tank while the system was functioning properly and would always prefer a backup replacement system. Mr. Polito said he would rely on what the State and the Health Officer approve, as they are the experts. Mr. Bonito reiterated that the runoff, erosion and parking were big issues.

Mr. Polito said the Board had discussed the issues of runoff and erosion and had come to the conclusion that there was nothing to back up that this was substantially any worse. The concern was the increased use on the island do to the enlargement of the house and the corresponding impact to the environment. Mr. Polito’s opinion was that if the Osborn’s got rid of the toilet and replaced it with two (2) composting system toilets, whether it was one in the shed and one in the house, or just one in the house, the existing system could conceivably last forever. He didn’t feel they needed anything further. If they want to continue with the proposal they have tonight, a composting toilet in the shed and the regular system in the house, then they need a backup septic plan. He did not believe the Board could entertain approval tonight without the State input. Mr. Polito asked what if a backup system couldn’t be put on that property. He wants to at least see something from the State that says if the septic system fails, they would approve a holding system. Mrs. McGrath suggested they could approve this with the condition that the State gives that approval. Mr. Polito asked if this would be a hardship to wait another month, as this is winter and the island is not being used. Mrs. Osborne said they came before the Board because of a letter from the Selectmen giving them 30 days to take action. Mr. Polito said he would tell the Selectmen that they (the Osborns) are in due process of getting an alternative to the system. He is not comfortable granting a variance with a condition when there is no urgency. The Osborn’s said they could wait another month and that it was not a hardship. Mrs. McGrath claimed that Mr. Polito was asking for a guarantee the system wouldn’t fail and that was impossible. Mr. Lewis and Mr. Polito asked why the composting toilet couldn’t be in the house. The Osborn’s said they would rather come up with an alternative. These toilets do still have smells associated with them. Mr. Polito said when you have a problem on an island you do what you have to do because there are few options and composting toilets are used very often to solve just this type of Island problem. Mrs. McGrath stated there was no apparent problem and the evidence supports that the system is in working order. Mr. Polito claimed the property has been expanded and therefore rendered less adequate for the intended use. Mrs. Osborn said that she is confident the State will come back with some option to replace this system in the event of a failure. Mr. Polito said he had no other issue with to deal with. The Board concurred this was the only issue left. Mrs. Osborn said she wanted to be clear that with the new information, the addition of the composting toilet and the approval from the State for a backup system, they would meet the five criteria.

Mr. Polito said the next hearing should be straightforward, it will not be opened up to abutter comment and they should be able to go right through the five criteria.

Abutters list was read with the following present: Mr. and Mrs. Osborn; Big Island Pond Corp; Emma Brown; Hemlock Heights Imp. Assoc.; AEH Realty Trust

Mrs. Osborn said she has new information this evening, At the last hearing there were a couple of outstanding issues with regard to the lot lines and actual boundaries. Mrs. Osborn said they had Meisner & Brem do a Certified Instrument Survey. They were able to move the house to meet the 15’ sideline setback. They now require less of a variance to the road because the instrument survey showed that the lot line was further back than the certified septic plan had shown. They were able to slide the house over. Mr. Polito confirmed that the letter from the State indicated there could be no deck intruding into the 50’ buffer. Mrs. Osborn said she understood and they are proceeding without the balcony. Mrs. Osborn wanted to address Mr. Polito’s concern regarding the comparison of the sizes of the homes. Mr. Polito said he was not sure how much of that would be pertinent. Mrs. Osborne said they are now only requesting a 3’9" variance to the road.

Mr. Polito reiterated that they got the certified plot plan, got clarity on the deck, and met the 15’ side setback. Mr. Polito asked where they were with the issue of the right of way. Mrs. Osborn thought Mr. Polito was going to find out about that but thought it was not a Zoning Board issue. Mrs. McGrath agreed it was not an issue for the Zoning Board to deal with. Mr. Lewis agreed. Mrs. Osborn said through extensive research and through their Attorney they have a deeded right to use this access. Mr. Polito asked about pavement and Mrs. Osborn said that in talking with the State, there are no requirements or issues with the pavement outside of the 50 setback.

The Board reviewed the plan. Mrs. Osborn spoke with the road agent that spoke with Meisner & Brem and they propose to build a landscape berm around the septic system for runoff. Mr. Polito asked the Road Agent for his input. The Road Agent’s concern in issuing a driveway permit would be the road is paved to the edge of right of way. The snow storage area is this parking lot. There is a six-inch drainage pipe that dumps onto their property from the neighbor’s property. Mr. Lewis asked where it is proposed to go. Ted said the proposed flow is a design swale out letting over the ledge. The topography had a natural level flow for the drainage. Moving the house over was a legitimate design to handle the storm water runoff. Mr. Polito asked the Osborns if they understood that if the swale is disturbed it will not work. Mrs. Osborn said this issue came to their attention last week and that this is a proposed solution. They would like to further investigate what the best solution for this would be. This pipe was put there without their knowledge or consent and there is no easement. They want to reserve their rights. Mr. Polito did not think this was a big issue. Mr. Lewis did not agree and thought since this had been there for the past thirty years, the Osborn’s could not just go and change the flow of the water. Mr. Polito agreed you cannot change the flow of the water but does not believe this is a consideration for this variance since the plan before them addresses this. The plan presented shows method that resolves the issue and if approved, this plan would have to be followed. Ted asked that the parking in the additional driveway area not be used during the snow season when plowing needs to be done. Mrs. Osborn did not have a problem with not parking there in the snow, but did not want the driveway used as a snow dump. They are concerned about salt, etc. They are comfortable limiting the driveway use to not interfere with winter maintenance. Mr. Polito annotated the plan "not to affect winter maintenance". Ted requested the raised landscaped berm around the septic system to handle the flow of the water and in order to maintain the corner. The Board determined there was enough area of Town property for the road agent to access and maintain without requiring an easement to the Osborn’s property. Ted’s last issue was with storm water management at the bottom of the driveway.

Mr. Polito wanted the applicant to understand that they have submitted a plan that deals with water flow of the abutting property though a 4 to 6 inch pipe and they are representing that they are dealing with it per the plan submitted. They understand that the parking is not to affect winter maintenance and snow removal. They understand the berm requested around the septic system and believe the Town has enough land to maintain it.

Mrs. Osborn believed they were able to come back tonight with everything the Board asked them to. They clarified the side issue and gained more footage from the road. Mr. Polito read a letter from Chief Murphy regarding the fire lane. Mr. Polito agreed that any parking in the fire lane was a code enforcement issue and not be an issue for a variance. The Osborn’s are aware this should be kept clear at all times.

Mr. Polito opened the abutter comments. Mr. Polito read a letter from Arlene Hawkins, and all of the issues have been addressed. Mr. Polito asked the abutters to keep the comments to pertinent issues to the variance because this has been ongoing and discussed at great length. Hemlock Heights asked if the septic system was above ground or below ground. The Osborn’s said it was below ground. Hemlock Heights read a letter and asked that the application be denied because of the proposal to use Hemlock Heights property to gain access to their property. Hemlock Heights cited RSA 1516. Hemlock Heights claims the Osborn’s have direct access to a public road and has sufficient frontage for a driveway elsewhere. Hemlock Heights claims the Osborn’s have never asked for or been given permission to use Hemlock Heights property. The Hemlock Heights Board has met and voted to deny any vehicle access across Hemlock Heights property. Mrs. McGrath stated that there is access on Hemlock Heights with the additional parking spaces and they have access through the right of way. Mrs. McGrath does not believe Hemlock Heights has a choice and that the Osborns have a deeded right of way. Mr. Polito understood Hemlock Heights concerns, but believed it was a civil matter. The Town has no right or interest in telling the Osborn’s they do not have a right to use the right of way. It is a deed issue and the Board does not believe the Osborn’s are in violation of the Statute. Mr. Polito suggested they have legal counsel. Hemlock Heights suggested that all they have to do is put up a cement wall. Mr. Polito reiterated that it was a civil matter. Ms. Legault questioned the size of the house and that at the last hearing there was talk of the house being reduced from 2300 square feet to 1700 square feet. She cannot find anything different in the size of the rooms. Nothing has changed. Mr. Polito thought they addressed this last month and asked the Osborn’s for clarification. Mrs. Osborn said the actual house was reduced a foot all the way around. The building footprint is 1,796 square feet including the garage. Calculating the actual square footage is 1,960 square feet of living space. This does not include garage space. Mrs. Osborn said the house was reduced in order to get 50’ from the lake. Mrs. Osborn said it was the same layout/floor plan. The Board reviewed plans, but there was confusion determining which was the original plan submitted. Mr. Polito said the Osborn’s represented at the last meeting there was 1900 square feet of living space. Mrs. Osborn said that is what it is, excluding the garage and common areas. Mrs. Osborn said the house was reduced in size and that the original plan would have been submitted in 2003. There was discussion about the size of the house. Mrs. Osborn said there was no clear-cut definition or requirement of the size of the house and in designing the house they looked at the percentage of the lot that would be utilized. Only 16 to 17% of the lot is being used for the building. Mr. Polito asked the Board if the size were pertinent because they have fit the house on the lot. The Board agreed it did not. It was still a two-bedroom house and the rooms were not that big. Mrs. McGrath said the primary concern of the board was overdeveloping the lot and the footprint. The Osborn’s again reiterated that they were only using 16 to 17% of the lot and they had brought in other examples of homes with two-bedroom septic systems that utilized more of the lot. Mr. Polito said that Mr. Bonito had data that disputed that and that the information was controversial. Mrs. Osborn claimed Mr. Bonito’s information only took into account the first floor. The Board agreed this was not material seeing that the house fit into the lot. Mrs. Bonito claimed the rooms were very large and did have the potential to become additional bedrooms. Mrs. Bonito said she had additional information that showed that using 16% of the lot was the largest lot use of 2 bedroom homes on the Atkinson waterfront. Mr. Bonito brought up some zoning requirements that he thought applied, but it was determined they related to commercial development. Mr. Bonito had a letter from an engineer talking about the number of people living in the house versus approved septic and the fact that this was a two bedroom septic plan with five people living in the house. He asked how a family of 5 could sleep in two bedrooms. Mr. Polito said it was a good point and unless you had three children all the same sex, how do you have a two-bedroom house. He asked the Osborn’s if their children were all the same sex? Mrs. McGrath objected to these questions and said it was beyond the scope of the Board’s business. Mrs. Osborn cautioned the Board with the tone the conversation was taking and took offense at her personal life being televised. It is not anyone’s business who slept in what rooms within her family.

Mr. Polito again questioned the size of the house. Mr. Rockwell said his house was a two-bedroom 2300 square foot house on less than ½ acre. Mrs. Osborn wanted the record to be clear that there is 1,960 square feet of living space. (not garage and common spaces)

The Board reviewed the criteria:

The plan reflects a variance of 50 feet to the shoreline and 3’9" feet to the front setback. Mrs. Osborn read the criteria.

The Board agreed they have a right to build something. The Board agreed this criteria was met based on the discussion, unanimous

The Board addressed the parking and agreed there can be no stipulations regarding the island property. The Board agreed this criteria was met based on the discussion, unanimous.

1.) The Board agreed this criteria was met based on the discussion, unanimous

2) The Board agreed this criteria was met based on the discussion, unanimous

The Board agreed this criteria was met based on the discussion, unanimous

The Board agreed this criteria was met based on the discussion, four in favor of and one against.

Peter Lewis stepped down from the Board.

Abutters list was read with the following present: Peter Lewis; Michael Huberdeau

The Board accepts that this is an existing non-conforming use based on the map and lot file containing the original approval of the previous Special Exception.

Mr. Frye presented the Board with a proposed plan. He explained the existing office building was 1920 square feet used for the office staff of Lewis Builders. The building was constructed in 1988 through a Special Exception to replace a previously existing building. They are running out of space and are proposing an addition at the rear of the building of 10’ by 50’. They are not increasing the number of employees or parking requirements. Mr. Frye represents that they would meet or exceed requirements under site plan review by today’s standards. This is office space that will not create additional noise.

Mrs. McGrath asked why the addition could not be to the right of the building. Mr. Frye explained that the air conditioning units are located in a utility room and would be very costly to move. This addition lined up with present hallways doorways and windows. Mr. Polito asked why the building couldn’t be three feet shorter. Mr. Lewis said he needs the space for three additional offices. Mrs. McGrath asked the applicant to explain why the expansion could not be in the front of the building – and the applicant explained why that would not be feasible. The Board and applicant discussed the existing building already encroached on the sideline setback. The abutter spoke and said he had no objection to the proposals. The Board and applicant discussed a natural buffer. Mrs. McGrath suggested that the applicant’s proposed natural buffer be incorporated in the special exception and discussion followed. The applicant agreed to maintain a 10-15 foot natural shrub/tree buffer with the encroached sideline.

The Board reviewed the criteria for a Special Exception:

Mr. Frye read the criteria.

Mr. Polito said there would also be the condition of the buffer and this is only 3 feet closer than what exists there now. The Board agreed this criteria was met based on the discussion, unanimous.

The Board agreed this criteria was met based on the discussion, unanimous

The Board agreed this criteria was met based on the discussion, unanimous

This currently exceeds the States minimum requirements. The Board agreed this criteria was met based on the discussion, unanimous

Because of the buffer and based on this being office space. The Board agreed this criteria was met based on the discussion, unanimous

The Board agreed this criteria was met based on the discussion, unanimous

1.) Because of where it is located there would be additional site and construction issues The Board agreed this criteria was met based on the discussion, unanimous

2.) The roofline is the same. The building conforms. The air-conditioning is located at the other end of the building. The leach field is in the back and the building is already located in the setback. The Board agreed this criteria was met based on the discussion, unanimous.

The expansion is not a substantial intensification of the use The Board agreed this criteria was met based on the discussion, unanimous.

The trees and shrub buffer of approximately 10-15 feet will be maintained. The direct abutter is far removed the addition The Board agreed this criteria was met based on the discussion, unanimous