Page two, fourth paragraph, delete second "thought"

1. Karla & Todd Dulin dated 6/15/04 request to withdraw application for Home Business for 115 Main Street, Map 13, Lot 14.

2. Craig Laurence, 26 East Road, Home Business renewal application "Linebrook Greenhouse & Nursery" Map 15, Lot 7. The Board reviewed the application. Mr. Carter made a motion to approve the renewal based on the application submitted. Mr. Lewis seconded the motion an it was approved.

3. Memo to Board of Selectmen dated 6/11/04 from Maggie and Dan Osborn re: letter from Mark Bonaiuto on property located on Rock Island, Map 22, Lot 39.

4. Letter from Scott Kukshtel dated 6/18/04 re: Wetland Variance for 9 Kelly Lane, Map 9, Lot 79 with letter from Soil Scientist.

5. Attorney Campbell letter dated 6/14/04 re: request for minutes of 6/9/04 meeting.

6. Paul DiMaggio memo dated 7/1/04 re: Hammond Appeal.

7. ZBA Budget printout dated 6/1/2004.

Outgoing

ZBA Legal Notice for public hearing meeting 7/14/04.

Dr. Joseph Guischard dated 6/10/04 re: Home business renewal approval.

Mr. Ronald Nickerson dated 6/10/04 re: Home business renewal approval.

Beaumont & Campbell dated 6/10/04 re: Denial of request for rehearing for Samuel Zannini, Jr.

Ms. Julie Fortin dated 6/11/04 re: Home Business approval as exempt.

Ms. Valerie Zdrada dated 6/11/04 re: Home Business approval as exempt.

Mr. Craig Laurence dated 6/11/04 re: Certified letter on Home Business renewal.

Ms. Carla Haney dated 6/11/04 re: Certified letter on Home Business renewal.

Ms. Amy Pingree dated 6/11/04 re: Certified letter on Home Business renewal.

Home Business:

The Board reviewed the application for Kip Cam. Mr. Carter made a motion that the Board would certiy to the State of New Hampshire that all of the requirements are met, based on the letter of July 6, 2004. Mr. Friel seconded the motion and it was unanimously approved.

Karla and Todd Dulin request for Special Exception as specified in the Zoning Ordinance Article IV, Section 450 to permit "Miroir"a small business to showcase homemade furniture and antiques at property located at 115 Main Street, Map 13, Lot 14, TC Zone.

Mr. Polito explained that the applicants had withdrawn their request.

Beaumont & Campbell Prof. Ass’n. for Jacqueline Hammond request for an Appeal of the decision of the Building Inspector to deny a building permit for an in ground pool and adjoining deck within cluster buffer zone on property located at 15 Carriage Chase Lane, Map 9, Lot 62-11, TR2 Zone.

Abutters list was read with the following present:

Attorney Campbell; Mr. and Mrs. Hammond

Attorney Campbell stated that he supplied the Board with a packet including the building permit, which was denied. It was his understanding with the Inspector that the denial was made because at the time the original subdivision was approved, the zoning required a 100-foot landscape buffer setback in the cluster development. The 100-foot setback was amended in 2001 by the Planning Board to a 50-foot landscape buffer in residential areas, where the development consisted of single-family homes, which this area turned out to be. Attorney Campbell believed that Section 600:11(b) governs this matter. This is a fee simple lot ownership subdivision and he believed the applicable setback is 50 feet and not 100 feet. Attorney Campbell stated that the grounds for denial were not entirely clear, because it is not based on the zoning ordinance. He submitted that it could not be on the basis that the applicable permitting by what existed at the time of the subdivision because a community reserves the right to amend its zoning ordinances and when it does, the property owners may exercise their rights. The zoning changed for the benefit of the property owners. Attorney Campbell does not know why the Town is still attempting to enforce the old zoning. He is led to believe, by reading previous minutes, that one of the issues had to do with the approval of the original subdivision and the conditions that existed at the time. Attorney Campbell provided the Board a copy of the Subdivision Plan that was recorded at the Registry of Deeds in July 1999. There was a question of the time lapse between the signatures on the plan and the actual recording of the plan. It was determined that this time period existed because of a lawsuit involving the property. He explained that there was a note on the plan that suggested that sites 99 – 129 should have certain deed restrictions. There was no way to match up the sites because the plan recorded at the registry does not have any numbers on it. Attorney Campbell also conducted a title search of the property prior to the planning board approval of this property and provided copies of all of the deeds in the chain of title. Mr. Polito asked what the relevance was and how there was a deed to subdivision prior to it being established. Attorney Campbell explained that the older deed would be the original parcel that the subdivision comes out of. Attorney Campbell explained that the deed from Carriage Chase Estates to Patch Development Corporation in September of 2000. This deed clearly shows there were no deed restrictions regarding the note on the subdivision plan. There are no restrictive covenants in the chain of title of the deeds. The applicant’s position is that by virtue of the Planning Board adopting the change in buffer regulation from 100’ to 50’, the planning Board essentially exercised jurisdiction that it had to change those requirements, consistent with the zoning ordinance change. There is no enforcement issue that precludes the issuance of the building permits.

Mr. Carter asked, was it not a condition, at the time of this subdivision approval, that deeds include covenants? Mr. Polito stated that clearly there was some kind of error. It is certainly conceivable and possible that errors can be made. He will not sit here and argue about what supercedes what, and does not think it is germane. Mr. Polito stated that everything that Attorney Campbell presented was correct, with one major exception. If you look at the Zoning Ordinance 600:1, the Town adopted and changed an ordinance. The basic fundamentals of clusters have not changed. It is treated as an entirely separate section of zoning. Although individual lots are created, if you read the zoning, the zoning does not treat them as entirely separate entities. In the past the Board may have interpreted in error how they dealt with these things. If you turn to 600:17, it tells you what is supposed to happen in a cluster that goes well beyond the lot. Mr. Polito read 600:17, and stated that these are things that are absolutely unique in a cluster. Mr. Polito stated that there are to be recorded covenants. These are covenants that are required and that have been put into the zoning of the Town. This is done because of all the concessions the Town gives in the cluster development. It is a protection of the approval of this type of subdivision. The Zoning goes on and gives a vehicle of modification. Section 600:22 gives the vehicle of getting Planning Board approval for any modification or amendments to this zoning. Mr. Polito claimed there would be a recorded covenant for this subdivision. Attorney Campbell asked if the Board had a copy of it, because he was unable to find any such recorded document. Mr. Polito stated it was in the plat. Mr. Polito will not get into an argument about the legalities because tonight is only about whether the Building Inspector erred in his decision. Mr. Polito stated that he had a foundation survey that showed the 100’ landscape buffer and a copy of the plan. Attorney Campbell stated that he did not want to take issue with him, but he had the recorded plan from the Registry of Deeds, which shows the lot in question with nothing on it. There is one note. Mr. Polito stated it was clearly the zoning at the time that there was a 100’ setback, it shows as a note on a septic plan and a plot plan. Mr. Polito pointed out that the Board needs to know that Mr. Jones ruled on this based on the fact that the he knows about the restrictive covenants on these cluster developments. The technicalities of whether they were recorded are another issue. There is no doubt in his mind that the 100’ buffer existed at the time of this subdivision. Mr. Jones would not even have known about the technicality, but would have made his decision on the two pieces of the zoning. Mrs. McGrath said the Board should be sure that that was the basis of denial and the Board should review the application. Mr. Jones explained that they typically pull the subdivision plan and note the setbacks. Attorney Campbell asked if that was Mr. Jones position. Mr. Polito stopped Attorney Campbell. He stated that Mr. Jones does not have to be here tonight and does not need to go on the record and dig a hole for himself for a Court case to start fumbling around so that Attorney Campbell has something to tack onto that says Mr. Jones picked the wrong thing. What is before the Board tonight is very simple. He believed the Board had erred in the past because they treated these like regular lots. Through discussion with Town Counsel and others, he realized the Town had a pretty deliberative set of requirements in mind when they did cluster subdivisions. They granted relief in exchange for something and there are supposed to be restrictive covenants to maintain the character. There is relief under Section 600:22. Mr. Carter agreed that being around for so long, part of this was to protect open space. Buffers have always been required, whether or not they are shown on a particular piece of paper. Issues related to technicalities are not the purview of this discussion before the Board.

Mr. Polito read a letter from Mr. DiMaggio, in favor of the proposal, into the record.

Mr. Carter made a motion to affirm the decision of the Building Inspector based on Zoning Ordinance 600:17. Mr. Friel seconded the motion and it was unanimously approved.

Daniel Paul request for Special Exception as specified in the Zoning Ordinance Article IV, Section 460 to allow the addition of an Accessory Living Unit located at 10 Bluebird Lane, Map 7, Lot 13, TR2 Zone.

Abutters list was read with the following present:

Briget Giacoumis & Daniel Paul; Peter Viens; (letter from Mr. Huberdeau)

Mr. Paul provided the Board with a set of plans depicting the proposed addition. Mr. Paul explained that they had already removed a two-stall garage that was attached to the house. They were going to build a new two-stall garage with an accessory unit above it. They were removing one of the existing bedrooms in the house to make a common hallway and laundry area. This would remain a two-bedroom home. The Board reviewed the set of plans and confirmed with the applicant that the proposed accessory unit was less than 500 square feet.

The Board reviewed the conditions:

This condition was met.

This is one unit. The Condition was met

There will be a deed restriction. This condition will be met.

Mr. Paul owns the property. This condition was met.

This condition was met

This condition was met

This condition was met

This condition was met

This condition will be met

Waiting for State Approval of Septic. This condition will be met.

The Unit is for his mother. This condition was met

Mr. Friel made a motion to approve the request for a Special Exception as stated above, based on all of the conditions, except for (J) have been met. The approval is conditioned upon the State Approved Septic Plan. Mr. Lewis seconded the motion and it was unanimously approved.

Robert & Carol Kolifrath request for Variance from Article IV, Section 400:4 of the Zoning Ordinance to allow replacement of an existing 2BR dwelling 13’ from left sideline (2’ variance), 2’ from right sideline (13’ variance) and 5’ from rear line (10’ variance) on property located at 14 Stickney Road, Map 23, Lot 45, RR3 Zone.

Abutters list was read with the following present:

Robert Kolifrath, Mrs. Frederick Gilliam; Mrs. Diane Barrett

Mr. Kolifrath explained that he had recently had a survey done on his property and discovered that the existing house encroaches slightly onto the next lot. He was going to remodel his home and after having some contractors look at the property, it was determined that the building was no longer structurally sound. They have decided to replace the existing structure with a modular home and would like to move it over a few feet from the lot line and further back away from the street. Mr. Polito asked how many square feet the new home would be and Mr. Kolifrath was not sure. He said it would be roughly the same size, but maybe bigger by about 200 square feet. Some of the board members stated that they did not want a larger structure than the original footprint. Mr. Kolifrath did not have any drawings of what he might be proposing, because he was not sure what the Board would be looking for. He had gone to one manufactured home sales location and was under the impression that there was not a home that would be the exact same size. Mr. Polito and Mr. Lewis both agreed that even modular home could be modified. Mr. Polito suggested that maybe he would have to go deeper, but not as wide to get to the same square footage. The Board reviewed the septic plan, which was approved and installed in 1998, making this a year round home. The Board suggested that Mr. Kolifrath continue this hearing to the next regularly scheduled hearing. The Kolifraths agreed.

Rick & Carol Lillegard request for Variance from Article IV, Section 400:4 to allow an existing unpermitted 18’x26’ carport to remain 12’ from sideline (3’ variance) on property located at 21 Hemlock Heights, Map 22, Lot 55, RR3 Zone.

Abutters list was read with the following present:

Rick and Carol Lillegard; Mark & Marianne Bonaiuto

Mr. Lillegard explained he is not at home during the winter, and the parking area for their cars is very dangerous during the winter months. He had originally tried to install a portable type of covering to protect his wife’s car during but they caved in and collapsed. He built a carport, which took him approximately five weeks to complete, but did so without the benefit of a permit. He said the winter was approaching and he was beginning to become concerned for his wife’s safety. He has been parking in this parking area for 20 years. The carport is wide opened. It is constructed of 6x6 posts and 2x8 joists. He used to work for a timber framer and it is all timber framed. Mr. Kirsch explained that the neighbor called him because he was concerned that Mr. Lillegard put the carport on his lot line. Mr. Kirsch thought it was a civil matter, but upon reviewing the file, realized there was no building permit issued and that Mr. Lillegard had been issued a cease and desist order in 1985 for some unpermitted construction.. Mr. Polito checked the file and found the order. Mr. Lillegard explained that when he first bought the property he excavated to put in the parking area and a retaining wall and was unaware that it required a permit. Mr. Polito stated that pleading ignorance to the building permit when he already was issued a cease and desist order 23 years ago does not sit well with the Board.

Mr. Polito asked Mr. Lillegard if he had a certified plot plan and felt comfortable that the carport was indeed on his property. Mr. Lillegard stated that he did and that all of the markers are there. Jim Lavalle conducted the survey. The Lillegards presented the Board with pictures and contended that even though the carport was only 3 feet away from the next lot, at the closest point, there was a fifteen-foot drop from his property to that lot.

The Board reviewed the application and criteria.

1. The Board agreed this criterion was met.

2. The Board agreed this criterion was met.

Mr. Polito asked for abutter comments. Mr. Bonauito did not have any objections to this.

3. Mr. Polito asked how wide this was. Mr. Lillegard said it was not square but it was 18’ wide in the front and 26’ wide in the back. The Board reviewed the photos. The Board had misunderstood and thought this was a request for three feet variance. Mr. Lillegard showed the Board their request to the town asking for a 12’ variance. There was an error on the Town’s part. Mr. Lillegard explained that the neighbor did not have a problem with this and that the drop in height from his lot to Mr. Listro’s was a natural boundary. Mr. Polito stated that even thought the neighbor doesn’t object, that is a consideration, but the consideration the Board must make is what the next owner going to do. Mr. Carter agreed and believed this is a huge encumbrance done without the benefit of a permit. Mr. Lewis did not agree. Mr. Polito stated that there are a lot of houses that don’t have garages and have to deal with the snow. What is unique about this? Mrs. McGrath thought that with the driveway area already there this was possibly the only appropriate place to park because of the sloping of the property and the access. If the Lillegard’s were coming before the board to ask for a variance before they had constructed this, the Board might agree with it. Mr. Polito and Mr. Carter disagreed and said that they might be willing to go a couple of feet, but not 12 feet. Mrs. McGrath asked how it could be moved? Mr. Polito asked what the hardship was. The Board agreed they were looking at this from the perspective that it had not yet been constructed. Mrs. McGrath thought the uniqueness was the way the driveway was cut into the ground. A carport is an open area with no walls. Mr. Carter contended it was still a structure and required a building permit. Mrs. McGrath contended it did not have the same intensity as a garage or even a deck, but that it was merely protecting the cars and hugged into the environment Mr. Polito did not agree.

(A, B, & C) The Board agreed this criterion was not met by a vote of 3 to 2.

4 The Board agreed this criterion was met by a vote of 4 to 1.

Mr. Carter believed the spirit of the ordinance was to protect present and future abutters and that this did not meet the spirit and intent of the zoning. The Board agreed this criterion was not met, by a vote of 3 to 2.

Mr. Friel made a motion to deny the request for a Variance as stated above based on the fact the criteria for hardship and spirit and intent of the ordinance failed. Mr. Carter seconded the motion and it was approved. Three is favor of and two opposed.

The Board did tell the applicant they could entertain another proposal reducing the existing structure.

Minutes transcribed from tape Respectfully Submitted

Rebecca Russo _______________________