Incoming

Sumner Kalman dated 4/20/06 re: Saviano v. Town of Atkinson.

Sumner Kalman dated 4/25/06 re: Saviano v. Town of Atkinson motion to dismiss.

Zoning Board Budget printout dated 4/30/06.

Outgoing

Paul Shea dated 4/20/06 re: Approval of Wetland Variance, 5 Valcat Lane, Map 22, Lot 49.

Mr. Carter made a motion to reappoint Mr. Polito as Chairman, Mr. Riehl seconded and it was unanimously approved. Mr. Riehl voted to reappoint Mr. Friel as Vice Chairman. Mr. Carter seconded and it was unanimously approved.

Mr. Donald McManus request for Variance from Article IV, Section 410:8 to allow construction of a 12’ Diagazebo diameter gazebo and 12’ Diadeck diameter deck less than the required 100’ from wetland. Eastside to be 88’ (12’ variance) and Westside to be 95’ (5’ variance) from wetland on property at 18 Millstream Drive, Map 11, Lot 50, TR2 Zone.

Abutters list was read with the following present: Donald McManus

Mr. McManus stated that he wanted to build an octagon gazebo that had screens and a roof on one side of the existing deck and an open octagon deck on the other side of the existing deck as shown on the plan submitted. The Board also reviewed the Foundation Certification, which demarked where the Hydric B soils started. The applicant also showed the Board a brochure of the gazebo that he was planning to have built. Mr. Polito asked if there were any issues with the buffer setback. Mr. Jones said there were no issues with it and that it met the setbacks.

The Board reviewed the variance criteria criterion:

After discussion, the Board agreed this criterion was met.

After discussion, the Board agreed this criterion was met.

1.) After discussion, the Board agreed this criterion was met.

2.) Mr. Riehl did not believe that the applicant had to have a gazebo. After discussion, the Board

agreed this criterion was met, with Mr. Riehl opposing.

4.) After discussion, the Board agreed this criterion was met.

5.) After discussion, the Board agreed this criterion was met.

Mr. Reihl made a motion to approve the request as stated based on all of the criterion criteria necessary to support the granting of this variance having been met. Mr. Carter seconded the motion and it was unanimously approved.

Josette & Vincent Doherty request for Variance from Article IV, Section 410:8 to allow construction of a shed roof and screening over existing tiled patio which is 24’ from wetlands (variance of 76’) as opposed to the required 100’ on property located at 22B Waters Edge, Map 23, Lot 8, RR3 Zone.

Abutters list was read with the following present: Josette and Vincent Doherty

The Board reviewed the application and made a finding of fact that the Applicant was exempt from applying to DES for the screened patio because it was on the side of the house and did not go any closer to the water.

Mrs. Doherty explained that all they wanted to do was put a roof and screens over the existing patio area because of the bugs and her 7 grandchildren. They need an enclosed area so the children cannot go to the water and they are concerned about diseases from the bugs. There is currently an awing awning with retractable screens, but they cannot be secured down. There is currently a state approved sea wall, which protects the water. The screened in patio would not be any closer to the water and is located on the side of the house. Mrs. Doherty provided the Board with pictures of the house and patio area as well as the sea wall.

The Board reviewed the variance criteria criterion and the application.

After discussion, the Board agreed this criterion was met.

The board discussed that this was going from one permeable surface to another. The Board agreed this criterion was met.

1.)The lot is small and substandard and is already non-conforming. After discussion, the Board agreed this criterion was met.

2.) The proposed screened in deck cannot go in another location because of the size. After discussion, the Board agreed this criterion was met.

This is just screening a 12 x 18 foot patio that will be no close to the water. After discussion, the Board agreed this criterion was met.

After discussion, the Board agreed this criterion was met.

Mr. Carter made a motion to approve the request as stated stated based on all of the criteria necessary to support the granting of this variance having been met. Mr. Riehl seconded the motion and it was unanimously approved.

Samuel Zannini, Jr. by Attorneys Beaumont & Campbell Prof. Assoc. request for Variance from Article V, Section 530 of the Zoning Ordinance to permit the subdivision of the existing lot back into two historic lots; one to contain the existing house, plus an additional lot with new structure to have rear setback of 26.2’ , where two acre minimum lot size and 75’ rear setback is required on property located at 8 Salem Road, RR2/SCR Zone.

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Abutters list was read with the following present: Samuel Zannini; Attorney Campbell; Michael Comeau

Mr. Zannini and Mrs. Osborne recused themselves from the hearing.

Mr. Polito told Attorney Campbell that based on the ruling of the Supreme Court; the hearing would be limited to the hardship issue only. He stated that the court ruling did not entitle the applicant to a hearing "de novo".

Mr. Carter acknowledged opined that even if the Board came to another conclusion relative to hardship, the Variance wouldrequest would still fail, because there were still 2 other criteria that had failed. Mr. Polito asked what he thought that metmeant. Mr. Carter agreed stated that it was his opinion that the ruling required the Board to only reviewed the hardship criteria and because there are still 2 other criteria that fail the Variance would ultimately be denied. Mr. Polito said the Board has an obligation to follow the Orders of the Court and the Court instructed the Board to only review the hardship criteria. Mr. Riehl agreed.

Attorney Campbell requested that the hearing be continued until next month so that he could have the benefit of a full quorum and that all issues, including what the Board had just discussed, to beare decided by all of the members. Mr. Polito said he believed the applicant had the right to have the five more than three members of the Board present for the hearing and to vote on the application, but he is convinced that they stated that the issue of interpretation of the Court instructions to the Board is as a Board, as an administrative procedure, separate from the application itself, have and the Board has the right to decide that issue right now. This may what limit what the applicant is limited topresents to the Board. Mr. Polito said unless the other two members present disagreed or he reread the order from the Court and came to a different conclusion, the Board will limit him the applicant to the presentation of hardship and will not hear arguments of why they should consider other thingsanything else. Mr. Polito told Attorney Campbell that he had the legal opportunity to seek clarification of judgment from the Court if there was any doubt to the intentions of its ruling.. Mr. Polito said that toTo his knowledge, no such petition was filed and this Board has no choice but to follow the instructions of the Ssuperior and Supreme Court. They are not obligated to hear his Attorney Campbell’s arguments on why he disagrees or what is his interpretation ofof what the Court said ruling. Attorney Campbell reiterated that he would like to make his appropriate statements when there was a full Board to make the decisions. Mr. Polito stated that Attorney Campbell would not be allowed to argue anything other that the hardship criteria. The Board will not waster time going beyond the instructions of the Court. He added that tThey will not intellectualize why what the Court had done may not make sense to himAttorney Campbell. Mr. Polito said repeated that he Attorney Campbell already had his opportunity at the Superior Court and the Supreme Court.

Mr. Carter made a motion to accept the request for a continuance based on there not being a full quorum, but with the understanding that only arguments on the hardship criteria will be heard. Mr. Riehl seconded the motion and it was unanimously approved.

Minutes Transcribed from tape.

Respectfully submitted ________________________________

Rebecca Russo Approved