Incoming

Planning Board letter dated 4/26/04 to Verizon Communications re: Approved Site Plan for property at 97 Main Street, Map 13, Lot 2.

Deed Addendum to property located at 53 Westside Drive, Map 11, Lot 24.

Zoning Board of Adjustment Budget Printout dated 4/30/04.

State of NH, Dept. of Safety, Division of Motor Vehicles dated 5/4/04 for Atkinson Autobody, 9A KipCam.

State of NH, Dept. of Environmental Services dated 5/12/04 re: Approval of Shoreland Waiver, Rock Island (Osborn) Map 22, Lot 39.

Home Business Application for Julie Forin, 56 Academy Avenue, Map 14, Lot 72.

Conservation Commission letter dated 5/12/04 re: Kukshtel variance review and recommendation.

Outgoing

Janet Porter dated 4/15/04 re: Renewal of Home Business "On Line Hair Salon", 6 Linebrook Road, Map 15, Lot 19.

Fred Porcella dated 4/19/04 re: approval of Wetland Variance, 7 butler Road, Map 6, Lot 74.

David Holigan dated 4/19/04 re: approval of Frontage Variance, 13 Chase Island Road, Map 22, Lot 13.

Legal Notice for meeting of 5/12/04.

Abutters list was read with the following present:

Daniel and Maggie Osborn; Attorney Campbell; Hemlock Heights Association; Big Island Pond Association; Chase Island Association; Mr. and Mrs. Harrigan , who indicated that people on Chase Island Road were not notified.

Mr. Polito asked Mrs. Osborn if she knew why there was a problem with notification. Mrs. Osborn stated that it was her understanding that only the abutters on the two adjacent islands and directly across the lake had to be notified. Mr. Polito stated that they could proceed, although he could not tell if this had been legally notified. They would run the risk of an appeal if someone felt they were not notified. Mrs. Osborn stated that she wanted to proceed.

Attorney Campbell explained that he represented the Osborns. The house has existed on the island for a considerable period of time. Last fall Mr. and Mrs. Osborn undertook construction work, admittedly without the benefit of permits they would have otherwise needed to do the work. Attorney Campbell presented the tax card for the property.

Mr. Polito explained that he had a copy of the floor plan (poorly done), certified plot plan, and tax cards. Mr. Polito claimed the documents do not agree with each other. Attorney Campbell explained that if you looked at the tax card of 2003, the dwelling was essentially in a u shape that had an indented area. There was a 10’ x 8’ deck and some open ground area to the side of the deck, which was within the u shaped area. Mr. Polito asked Attorney Campbell if, to the best of his knowledge, the living space on the tax card was 780 square feet. Attorney Campbell said to the best of his knowledge this was true. There was no second floor prior to that time. Attorney Campbell stated the deck was in poor shape and the building had shown deterioration as a result of the roofs pitch to the inside of the deck area. Motivated in part by the damage being done and the condition of the deck, which was of pressure treated lumber material, it was demolished and removed from the area. The Osborns constructed the addition at issue, essentially filling in that space. The addition was a 2-story section. Mr. Polito asked for clarification of what was first floor and second floor and how much space there was. Mrs. Osborne said that she had a full size plan. Mr. Polito stated that the addition added approximately 192 square feet of space of one floor. Attorney Campbell stated the second floor mirrors the first floor with an allowable space for the stairwells. There is a study on the landing on the second floor. Mr. Polito concluded there was an addition of 384 square feet, which is approximately a 49% increase in living space. Attorney Campbell explained that it came to the attention of the municipal authorities. They began a process of trying to rectify to bring the property back into compliance. There were two issues, one state and one local to be dealt with. The Osborns engaged a surveyor to prepare the plan that would be required. The Osborns applied to the state, because of the Shoreline Protection Act because it did expand the footprint of an existing nonconforming dwelling.

This week, the Osborns received notification that the waiver had been granted, subject to conditions. There is an error pertaining to the recording of document in Stafford County, which should be Rockingham County. Attorney Campbell read the conditions, which are recited in the approval from the state. Mr. Polito said the state is saying that in spite of the fact that the applicant has done a 49% increase in living space, they are not requiring the Osborns to add a septic system at this time. Attorney Campbell believed the rational for that was that there was no bedroom space expanded. Mr. Polito agreed that on a technicality, there were no bedrooms added; however, the loft can clearly be used as a bedroom. The only thing that makes it not a bedroom by the Town’s definition is the absence of a closet. Mr. Polito stated that he went through the application that went to the state and he feels he has a lot more information here tonight, than the state had. Mr. Polito asked if the state was aware there was a 49% increase in living space and that there is a loft upstairs. Attorney Campbell responded that the state had the same material that the Board has. Mr. Polito asked if Attorney Campbell was representing the state had all of the same plans, and drawings. Mr. Carter said that lacking an explanation there was no way the state or this Board would have known there was a second story. Attorney Campbell stated if you studied the drawings and looked in the title block for the plans, dated 12/31/03, it clearly indicated there was a second story. Mr. Carter questioned the dates of the document and whether the state had this information. Attorney Campbell explained there was no work done prior to December 2003. Mr. Kirsch stated he sent a letter to the Osborns in November 2003. He further stated that the Osbornes came in December 2003, applied for the building permit, which was denied and then they applied to the State. Mrs. Osborn reiterated that Code Enforcement notified them in December 2003 that they were investigating this. She came in to meet with the Code Enforcement Officer and Building Inspector. She was instructed to go to the State, and that is when the plans were drawn up. Mr. Polito asked if she had a signed, dated copy of the application to the state. Mr. Polito said he is taking Mrs. Osborn’s word that this is what she sent to the state, but would rather have proof. The Board questioned whether the state had all of the information, before the Board to make a determination that this was in fact a two-story addition. Mr. Polito wanted the record to be clear that the applicant has represented that in addition to the copy of the application the Board has, which is not signed or dated, was submitted to the state sometime in the first quarter of 2004. Attorney Campbell had a copy of the signed application, which is dated 2/6/04. Mr. Polito asked if it had the attachments. Attorney Campbell said it had the tax card that looks like it went with it. Mr. Polito wanted the record to be clear that the Board did not know what plans the State saw in order for them to fully appreciate the size and extend of this addition. Attorney Campbell claimed this was not entirely accurate, because the applicants are indicating the plans did go with the application. Mr. Polito stated they can factor in the statement from the applicant, but the applicant has not provided, for the official record, what went to the state, other than their direct testimony. Attorney Campbell stated that in his profession, the evaluation of a witness is their character, their reason to lie, the ability to check. Mr. Polito stated that with all due respect, sitting before the Board tonight are two people who without benefit of any permits, put a substantial addition on a house. Attorney Campbell said he would assume that if the Applicants made statements here tonight, knowing the Board had the ability to confirm them. Mr. Polito contented he did not know if the Board could confirm them. Attorney Campbell suggested they look at the record in Concord. Mr. Polito stated he should not have to waste his time with an incomplete application.

The Board knows there is an error in section one of the Waiver with the dates of September 14th and September 29^th. The Board is considering the testimony of the applicants as to what drawings the State was given. The Board is concerned and perplexed as to how the Shoreline Protection Act and the DES would have approved a 49% increase in a house on an island that is 30 +- feet from wetlands. Mr. Polito stated that after looking at these plans it was not clear to him what the size of the addition was. He assumed the loft was a tiny space that looked down over the first floor. There is no way he could have discerned that there was a 49% increase with a full second story. For the record the applicant represents that the application, which Attorney Campbell has presented, went to the state. That tax card dated 2/4/04. Mr. Polito asked the applicant to attest to what went to the State. The applicant responded that the tax card, the application, the copy of the Plan, the survey and the map that shows where the island was located was sent to the state. Mr. Lewis argued that looking at the plan it was very clear that it was a two-story addition. The plan shows a profile of the front and the rear, as well as the inside showing a full set of stairs. He contended they had to be going somewhere. Mr. Polito asked if a loft did not open to a full drop to the first floor. Mr. Carter agreed. Mrs. McGrath thought a loft was an open space. Mrs. Osborn explained that there was not a full wall and the loft is open to the stairs. Mr. Polito stated that a ruling came out of DES; it is a factor in the decision tonight. While DES is clear in their decision and Waiver, they still have to come before the Board for local permits. Mr. Polito stated that it is not clear to him, from any of the drawings that are purported to have been given to the state, that without a lot of work, one could figure out this grew by 49% and that there is a fairly large loft area on the second floor. This is inconsistent with the RSA. Attorney Campbell argued that this is the purpose of the Waiver, because it was not within the existing footprint. Otherwise they would not have had to go to the state. Mr. Polito asked if the state were aware that this was already built. Attorney Campbell said the state was aware. Mr. Polito asked where in the application it stated that. The first line under the description states it. Mrs. Osborn explained that she went to Concord personally and met with the coordinator handling this to make sure that she had everything in order. Mrs. Osborn claimed this was built in a weekend. Mr. Osborn stated it took three days. Mr. Polito asked how all of the lumber got there. Mr. Osborn said by boat. Mrs. Osborn pleaded ignorance. They inherited this 70 year old dwelling last summer. The roof was falling apart. They have three small children that were running around in an area that was not safe. He asked a friend, who knew someone who could replace and rebuild this, but had to do it right away, because he had other projects to do. He was not a builder, but someone who has built in the past. There were no set of plans; it was just built in three days.

Mr. Kirsch wanted clarification because the state is not requiring the septic to be upgraded at this time. It did not seem right. Mr. Kirsch said if they wanted to keep the expansion, they should have to install the septic system. Mr. Polito agreed the state did not say that, but this Board can give consideration to this issue as part of the request. Mr. Jones concurred there was a definite expansion of the footprint. Mr. Friel asked what this is built on. The applicant stated it was built on sona tubes. Mr. Polito questioned the fact that without planning, all of this happened in three days, as the applicant stated.

Mr. Polito asked for abutter comment. Mr. Harrigan said the applicants were out there for three or four weekends building this. He asked if the siltation requirements were adhered to and asked how much damage has been done already to this site. He believed the applicants were well aware of the permit process since they applied for permits regarding another waterfront property that they own. He stated that both he and his wife vehemently oppose this. Mr. Harrigan stated that there are laws in place that the voters approved and that the Board is here to enforce the rules. Mr. Harrigan questioned the hardship criteria and stated that the deck could have been repaired under the RSA. Approval of this would set a dangerous precedent. There are others on the lake that have been denied permits and been made to tear down structures. This should be denied. Mrs. Harrigan concurred. Mr. Harrigan presented a signed letter from two abutters opposing this. Big Island Pond Association was concerned with the septic system. Chase Island Association concurred.

Mr. Rockwell stated that he has never seen anything like this. He would not give this any more consideration.

The Board reviewed the Criteria:

1.) Attorney Campbell said that the Chairman has on several occasion, referenced the size of the expansion. Attorney Campbell explained that the purpose of the Shoreline Protection Act is to protect adjacent water bodies. He believes this is where the focus needs to be. The certified plot plan shows the existing nonconforming structure, which predated all of the regulations that have been talked about, is closer in location at several points, existing than the addition is now. There was a already a deck in that location and Attorney Campbell does not believe there was substantial movement of dirt that would have created any kind of siltation issues. Mr. Osborne stated that there was no earth moving or disturbance of ground. Mr. Polito said this was not a statement of fact, but only testimony and having done this without the benefit of permits, did not allow for the protection that would have occurred if the proper process were adhered to. Attorney Campbell argued that this is an island with no adjoining abutters that are impacted either by shadow, by projection or any impact that would fall into that category. It would be hard to conceive that the renovating of this property would impact any of the islands in close proximately. The use is residential. The use in its camp location would not be intensified and still remains a two-bedroom structure. They do not believe there would be any diminution of surrounding properties. Mr. Carter believed that if this expansion has rendered what is already a non-conforming use proportionally less adequate to sustain this type of use. Whether this space counts as a bedroom or not, a 49% increase in space would concern him. There is a more intense use. The intensified use could contribute to the diminution of water quality, the abutters have a point and this might in fact impact the value of their properties. Attorney Campbell respectfully disagreed with the analysis and state that the Board had tools to insure that this remained a two bedroom dwelling and a single family structure, There are going to be covenants and conditions that the state has asked to be imposed as part of this process and the Board could do the same. Mr. Polito asked for a consensus. There were four in favor of and one against.

2.) Attorney Campbell said the assertion is that the granting of this would not be contrary because the renovation and removal of the deck would be a benefit because of the pressure treated deck that was there and has now been removed. He would assert that by the way the roof now pitches, they are not substantially creating runoff closer to the water than would have existed before this structure was there. There is no intensity of the runoff. He believed with the restrictions the State has suggested would go further to protect the Towns interest. Mr. Polito said that typically this is an easy one, but he would argue that it could have been replaced with a deck and would not have required the permit. The Board could consider the testimony regarding the roof pitch, but without engineering drawings, he would not know if that were good, bad or indifferent. Because this is on a lake, there is a shared public issue and affects three towns that share this water body. People take drinking water out of this lake. The applicant has not presented any information on the condition of the septic system. There has been a 49% increase in living space, an addition of a loft, or study on the second floor, and in a summer cottage that has the potential to, and is very likely to be used for sleeping. Even the addition on the first floor could be used for sleeping. He is not sure protection could be provided for how many people could be out on that island at any given time. There is the likelihood of increased guests that would use the septic system, for which the Board knows nothing about, on a lake where the public interest is the drinking of that water. Mr. Polito asked if the applicants had anything to say about the septic system. Attorney Campbell indicated that it appears from his documentation there is a 750-gallon concrete septic tank with a leaching bed of 170 square feet and that the normal water table at the time and as a result of a percolation test was 7 feet below surface. Two lines of four inch perforated fiber conduit space six feet on center. Mr. Polito asked Mr. Jones how much a two-bedroom home would require today and Mr. Jones responded a 1000-gallon tank. Mr. Polito had serious concerns about the public interest. It would be different if the applicant came in and said they were going to put in a new septic system or had repaired the current system and had state inspection. Mr. Lewis agreed. Polito asked for a consensus. The Board agreed this was not in the best interest of the public.

Attorney Campbell asked if it were necessary to proceed. Mr. Carter thought the hearing should be completed. Mr. Lewis stated if the applicant came back with an approved septic plan, he would vote different. Attorney Campbell requested a five-minute recess to confer with his clients.

Five minute recess taken.

Attorney Campbell requested to withdraw without prejudice subject to the resubmitted with additional information to address the Boards concerns. They will consult with the septic designer to get either an analysis of the current system or design a new system. They will also try to address Mr. Carter’s concerns regarding the number of people he thinks that can sleep in the dwelling.

Abutters list was read with the following present:

Nicholas Kukshtel; Town of Atkinson; William Friel

Mr. Friel, an abutter, recused himself. Mr. Rockwell will be voting.

Mr. Kukshtel stated that the exiting dwelling is less than 100 feet from wetlands. Mr. Polito did not believe the Board had to act on this tonight. Mr. Polito explained that back in the 80’s and early 90’s there was not nearly as good a job done around new construction and flagging the wetlands. Sometimes wetlands are created during construction. Mr. Carter believed that if this application were approved tonight, it would in effect obviate the need for an equitable waiver. The Board did not agree, but Mr. Polito stated the Variance could be granted for 80.5 feet, thereby covering the house. The Board agreed.

Mr. Kukshtel presented the Board a set of drawings depicting all the elevations. Mr. Kukshtel explained that he wanted to construct a screed porch off of the kitchen that needs a 15ft +- variance. There is an existing deck that will be removed. The addition is larger than the existing footprint. They are not just screening in the current deck because of the odd roof angles. The roof pitches are very steep and they did not like that. The other addition is on the back of the house adjacent to the master bedroom. There is an existing deck that will become an extension of the master bedroom. This will be a home office on a concrete footing with a crawlspace. The addition on the back is not going back any further than the existing deck. Neither of these additions is closer to the wetlands than the closest point of the house. Mr. Kukshtel agreed. Mr. Polito asked Mr. Kukshtel to tell the Board about the wetlands. Mr. Kukshtel explained that it was a narrow intermittent stream that flowed down towards Kelly Lane, under Kelly Lane through culverts and into a fire pond and further though Bryant Woods to a river.

Mr. Kukshtel stated that the letter from the Conservation Commission asked to receive more information from a soil scientist regarding the wetlands. Mr. Kukshtel explained that he has requested that information twice and has not yet received it. Mr. Polito read the letter from Conservation. A certified wetland scientist flagged the wetlands. Mr. Kukshtel stated that the soil scientist just need to write a letter based on his field notes. Mr. Polito asked Mr. Kukshtel what he thought the soil scientist would represent the wetlands to be. Mr. Kukshtel replied they were a low value wetland, probably series 500 soils, an intermittent stream, it does dry out in the fall. There is wetlands vegetation, but in terms of other function values, there is none. Mr. Kukshtel presented photos of the site. Mr. Lewis agreed with everything Mr. Kukshtel has said, but also stated that he has sat here many times and has seen situations like this that the Conservation Commission recommends not to approve. Mr. Lewis thinks this is fine, but as Chairman of the Conservation Commission he must know that this is not the norm. Mrs. McGrath stated that maybe one out of 50 times the Conservation Commission recommends something. Mr. Polito disagreed, and his recollection over the past two years is that more often than not, the Conservation Commission has said yes. Mrs. McGrath disagreed. Mr. Polito believed they were being anecdotal and his anecdotal recollection is different. Mr. Kukshtel stated that his Board is usually a little more strict on new construction and tries to take into account the value of the wetlands and how it impacts other wetlands. In recent years they have working with the Planning Board to change the Zoning Laws with regards to wetlands. Mrs. McGrath said it was very rare for the Board to make a decision without some evidence to back it up and believes it is even more important in this case. Mr. Polito believed the Board could condition it upon the receipt of a letter. The Board agreed they were willing to proceed with a condition of the approval if the applicant met the criteion.

The Board reviewed the criteria:

The Board agreed this criteria was met based on the application as presented.

The Board agreed this criteria was met based on the application as presented

a) The Board agreed this criteria was met based on the application as presented

b) The Board agreed this criteria was met based on the application as presented

c) The Board agreed this criteria was met based on the application as presented

The Board agreed this criteria was met based on the application as presented

The Board agreed this criteria was met based on the application as presented

Mr. Carter made a motion to grant the Variance as stated above and the retention of the existing dwelling at 80.5 feet from wetlands, with the condition that the Board receive a letter from the soil scientist attesting to the fact that the Wetlands are of low value and are no worse than poorly drained soils; such letter to be received within 60 days. Mr. Lewis seconded the motion and it was unanimously approved.

Abutters list was read with the following present:

Samuel Zannini, Jr.; Attorney Campbell ; Peter Lewis; Waiver by Mr. & Mrs. Charrette who were

not notified.

Mr. Lewis rescued himself. Mr. Rockwell will be voting

Mr. Polito opened both hearings by explaining that they were related in that if the appeal to an administrative decision is denied, the applicant wishes to proceed directly to the application for a variance. He asked the applicant to provide an overview of the property and associated requests before the ZBA. Attorney Campbell explained that the Board has an addendum attached to the application for the Administrative Appeal, which lays out the history of this property (lots 1 & 27 on subdivision plan from 1965 and presently referred to as lot 31 on the 2002 Atkinson tax map). Attorney Campbell said the primary document is the 1965 subdivision plan, which is recorded at the Rockingham County Registry of Deeds. There were 15 lots in this original subdivision. The Grugaugh’s owned two adjacent lots, and they were taxed by the town of Atkinson as separate lots (as shown on copies of the tax cards) with the Grugaugh’s house located on entirely lot 1. The area of town this subdivision is located in was originally zoned general residential agricultural district. The minimum lot size in this area, when it was subdivided in 1965, was less than 1 acre and increased to 1 acre a number of years later. In 1979 it changed to a 2-acre minimum zoning. The two lots from the original subdivision were separately assessed through the late 1970’s. Attorney Campbell discovered that the tax warrants for the Grugaugh’s property changed on April 1, 1981 and only one tax bill was issued to Ms. Grubaugh from that time going forward. In addition, the Atkinson tax map was amended sometime after 1980 combining the two original adjacent parcels to one single parcel. Mr. Polito asked if Attorney Campbell had a copy of a letter from the Selectmen telling .the Grubaughs that the two adjacent lots they owned were being combined. Attorney Campbell told Mr. Polito that he has seen a letter dated 5/14/1986 informing another resident of a combining of lots but that there was no letter he could find informing the Grubaughs that their lots were being combined under Z400:3.

Mr. Polito read to the Board a portion of Article 4, Section 400:3 as referenced in a sample of a letter from the Selectmen to a property owner whose adjacent lots were being combined, "whenever the owner of a substandard lot owns or acquires an adjacent lot, the lots shall be combined". Mr. Politio said that based on this ordinance, the Atkinson Board of Selectmen directed the Assessor to combine all substandard lots in common ownership and to eliminate the indicative lot lines on the tax map. Mr. Polito stated there was a period of quite a number of years that lots were combined under that zoning ordinance. With the part-time government in place at that time, Mr. Polito said that it did not occur all at the same time. Attorney Campbell stated again that he could not find any such letter in the file for the Grubaughs, but did discover that for the tax year that began April 1, 1981, there was only one tax bill issued for the lot the Grubaugh’s house is located on. There was no bill for the second lot that year. There was a combined bill issued in 1982 for the total acreage of the combined lots and it has been taxed as one combined lot since 1982. Mr. Carter stated that it was the Townspeople who voted in this zoning to combine substandard lots and they knew the ramifications. It was noted that some owners of adjacent substandard lots in Atkinson sold or changed ownership of their lots to escape this zoning . Mr. Polito said that the town knew this was going on and in the late 1980’s or early 1990’s addressed the issue of fairness by creating a Special Exception in zoning to allow owners who had their lots combined to split the lots apart if they met certain criteria.

Mr. Zannini acquired the property through the Estate of Dorothy Grubaugh in 1998. Attorney Campbell contended that the lots could not have been combined under the provisions of that ordinance, which was just read; therefore it is an administrative error not to acknowledge that the two lots are still in existence. The reason is that the language is very clear, and the operative word is, "When the owner of substandard lot owns an adjacent lot resulting in the combined lots meeting or exceeding this ordinance standard lot requirements". This was not true. It could not have been true because the standard lot requirements at that time would have been two acres. Even the combined lot would not have met the requirements. On the plain language of the statute, the merger clause could not apply. Mr. Carter claimed this was a very interesting point that had never been raised before. The issue is whether or not the language is meant literally or whether in fact; the language was really in error and did not adequately express intent. Attorney Campbell claimed the language was very clear. Mr. Carter assured Attorney Campbell that the intention was that substandard lots would be combined to more accurately reflect the town’s zoning requirements for larger lots. Attorney Campbell stated there were administrative gloss doctrines that only come into play when the language is subject to interpretation. Mr. Polito said that if you look at the history of how the Town has enforced and acted upon this zoning since its adoption, it would establish intent in how the ordinance was interpreted. In addition, some people combined lots on their own to get the advantage of a tax savings. Mr. Polito said there is reason to believe the Grubaugh’s got a letter from the Selectmen and that they were fully aware that they were being taxed for a single piece of property instead of two. There is a history in the Town of how the ordinance has been interpreted and is different that what Attorney Campbell has taken to be a literal read. If you took a literal read, this would be nonsensical because none of the lots combined under Z400:3 would meet the requirements. Attorney Campbell said this may not be the case in this subdivision, but surely could have been in other places. It is Attorney Campbell’s position that the language is what the language is and believes there was an administrative error made in the interpretation. Attorney Campbell has a septic design and a plan showing where the structure would go on the formerly adjacent lot. If the Board finds the lot does exist, it will meet the provisions that are in the setback section of 400:4. Mr. Polito contended that for 18 or 19 years the owner got a tax bill every year. In order for there to be an appeal of an Administrative Decision there has to have been an error. The Building Inspector had wording in the Zoning, that has been interpreted a certain way for the past 22 years. Attorney Campbell would argue this is wrong, but the Board is saying that it has been interpreted this way, without question for 22 years.

Mr. Carter states it is clear that the intent was to make substandard lots more conforming to current zoning. If the Board found Mr. Jones erred in interpreting the ordinance, the Board would be re-writing zoning. The Board agreed that Mr. Jones did not make an error in his decision.

Ms. McGrath took issue with the fact that Mr. Polito stated the owner should have known or should have gotten notice of the merger and had all this time to appeal. Ms. McGrath did not believe this was fair because there is no requirement for the person that had their lots merged to come forward during a specific amount of time. Ms. McGrath agreed the appeal from an administrative decision of the building inspector should be based solely on whether Mr. Jones made and error in the interpretation. Mr. Polito reiterated it was reasonable to assume the owner had gotten a letter from the town and had, on at least 2 occasions, during reevaluation, been notified of the status of their property under the public hearing process of reassessment of property. Ms. McGrath stated for further clarification the Deed conveying the property to Mr. Zannini describes two lots, which is irrelevant to Mr. Jones’s responsibility. Mr. Jones was presented an application for a building permit to construct a new house on a lot that does not meet several zoning requirements, including the minimum lot size of 2 acres. Mr. Jones looked at the tap map, the applicable zoning in that area, and the zoning that combines substandard lots and denied the building permit on those facts.

The last hearing is incorporated by reference for prior history. Attorney Campbell asked the board to view Exhibit J, which shows the proposal. They have an approved septic design for the lot referred to as lot 27 in the 1965 subdivision plan.

The Board reviewed the criteria:

The placement of the structure would be consistent with the 1965/1970 vintage developments. The relief needed would be the rear setback and the lot size. Mr. Polito stated that since this is not a lot of record, it would fall under the new zoning, which is two acres and be subject to all applicable setbacks. He indicated that the proposed house would be on a lot approximately ¾ of an acre and does not meet all set back requirements Mr. Carter stated that if the Board were to cut off this piece they could not, without relief, make the existing property more non-conforming than it already is right now. Mr. Polito said the Board needed to treat the existing combined lot as shown on today’s tax maps as a nonconforming lot and all of the setbacks are covered under Section 400:4. This combined lot as it is today, meets the requirements, but subdividing as proposed will result in both lots having to meet the requirements of today’s zoning as any subdivision would. There would be Variances needed for both lots for acreage and setbacks. Attorney Campbell stated that the application asks for that relief. Parcel A needs relief for acreage and rear setbacks. Parcel B needs acreage relief. Mr. Polito was concerned with the Cox’s house that is located behind the proposed new house and believes that is an important consideration in criteria 1. Mr. Zannini said he thought that house was at least 50 feet from the lot line. The Board agreed this criterion was met based on the application as presented.

Mr. Polito contended that "fallow and unused land" is a bit of a stretch in the applicant’s repose to criteria 2. The Board agreed this criterion was met based on the application as presented.

a) based on the application as presented, three voted against this criterion having been met and two voted in favor of the criterion been met.

b) Attorney Campbell said that the purposes of the RR2 Zoning is intended to provide sufficient area for on site disposal and allow sufficient area for property to have living space for the occupants and design do drive density for new development. This lot is of sufficient size to allow a residential use. Mr. Polito stated there is a relationship here and the Town decided it wanted to limit the development of substandard lots to reduce the density of the town and to address water supply and pollution. Based on the application as presented, two voted against this criterion having been met and three voted in favor of the criterion been met

c) based on the application as presented, Four voted against this criterion having been met and one voted in favor of the criterion been met.

Mr. Polito asked for a summary vote of criteria 3 and three voted against this criterion having been met and two voted in favor of the criterion been met.

Mr. Carter stated that allowing this proposed split would create two lots less adequate than the one existing combined lot. Four voted against this criterion having been met and one voted in favor of the criterion been met.

Mr. Polito believed this was not in keeping with the Spirit of the Ordinance. The ordinance on combining substandard lots and the zoning in place today regulating lot size and set backs is very clear and is not being applied unfairly. Mr. Zannini’s combined lot with area of just over 1 acre, is not unique since there are at least 2 other lots in the original subdivision that are larger than the combined lot Mr. Zannini owns. Mr. Polito said this combined lot does not meet zoning today or even 20 years ago. Mr. Polito said that in the early 90’s the town took the step of providing relief from 400:3 in the form of a special exception and this proposed plan does not even meet the requirements of that relief. In addition, the applicant has not shown any soil mapping to show support of two septic systems on the proposed plan. Four voted against this criterion having been met and one voted for.