Page 3, first paragraph, third last sentence. Change "Board" to "Conservation Commission".

Page 3, last paragraph, first sentence, change "Miss" to "Ms."

The Board had a discussion regarding whether their minutes have to be verbatim. Both the Planning Board and The ZBA agree that there is no requirement for verbatim minutes and that only the motion needs to be verbatim. The minutes are not intended to be a verbatim transcript. The opportunity for any adjustments to the record is via the appeals process. Clarifying the record might be one of the acceptable reasons for granting a rehearing.

NH Housing re: Study on Housing and School Enrollment in NH.

Assessor, Ed Relick re: On site visit of Map 23, Lot 32 Stickney Road.

ZBA budget printout dated 7/31/05.

Sumner Kalman dated 8/1/05 re: Saviano v. Town of Atkinson.

Home Business Application for Catherine Bodycote, 23 Aspen Drive, Map 10, Lot 7-36A. Based on the application presented, Mr. Rockwell made a motion that the business was exempt. Ms. Rochford seconded the motion and it was unanimously approved.

Home Business Application Renewal for Michael Murphy, 50 Summit Drive, Map 8, Lot 53. Based on the application presented and noting that there were no changes made, Mr. Carter made a motion to approve the renewal for home business. Mr. Rockwell seconded the motion and it was unanimously approved.

Outgoing

Ms. Norma Smith dated 7/14/05 re; Home Business renewal approval for 52 East Road, map 14, Lot 81.

Dorothy Menzie dated 7/14/05 re: Home Business renewal approved for 12 Sunset Drive, Map 8, Lot 22

Ms. Jolanta Jasiak dated 7/14/05 re: Home Business renewal notice for 22 Wood Drive, Map 7, Lot 175.

ZBA Legal Notice for meeting 8/18/05.

Abutters List was read with the following present: Diana Atkins; Bruce Bishop

Mr. Bishop explained that they have removed the half bath form the plan submitted last month. They have eliminated the wall separating the common room and have added baluster rails to make this room open to the existing house. Mr. Bishop reiterated that the house is presently a split-level house and the grades are not the same. It was very difficult to design an addition that was esthetically pleasing and able to accommodate the different grade levels. Mr. Polito and Mr. Carter had a little difficulty understanding the plans, as they had not been present at the previous two meetings. Mr. Bishop clarified where the addition was going to be located. The Board reviewed the previous plan submitted for comparison. Mr. Bishop indicated where the changes were and exactly where the accessory unit was being located. Mr. Polito marked up the proposed plan according to Mr. Bishop’s instructions, which clarified the new addition. Mr. Polito asked if the attic space had any windows. Mr. Bishop said it did not and would be used for storage only . Ms. Rochford was concerned with the potential living space in the basement. Mr. Bishop said this basement space would serve as a new mechanical room for the entire house and assured the Board that there would be no living space in either the attic or basement.. There is currently no basement in the existing house. The rest of the board agreed this did not present a problem, as it was not a walkout basement. Mr. Polito calculated the space as shown on the plan and the proposed accessory unit was less than 500 square feet.

The Board reviewed the criteria for a Special Exception for the accessory living unit.

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

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

C. The Board agreed this is a condition of the approval.

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

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

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

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

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

I. The Board agreed this was a condition of the approval

J. Mr. Polito explained that the applicant would have to get a new septic system plan approved in case of failure. The Board is not sure what the current plan is approved for, but suggested the applicant speak with the Health Officer. The Board agreed this would be a condition of the approval.

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

Mr. Polito read a letter from the Conservation Commission, which described the wetland as being behind this lot. The Conservation Commission also agreed to recommend the project. The Board reviewed the criterion for the Variance.

The Board agreed this was met as stated and discussed.

This proposal does not affect the wetlands. The Board agreed this was met as stated and discussed.

1.) This is an area variance. The area is a drainage swale. The Board agreed this was met as stated and discussed.

2) The high value wetlands are behind this lot. The Board agreed this was met as stated and discussed.

The Board agreed this was met as stated and discussed.

There is no impact on the wetlands. The Board agreed this was met as stated and discussed.

Mrs. Dugdale explained that she wanted to open a ceramics studio. Mrs. Dugdale presented pictures to the Board showing where the customers would park. Even in the worst-case scenario, Mrs. Dugdale explained that there is enough room for 12 cars. She has six seats available for the class. Mrs. Dugdale converted half of her garage to accommodate the studio, which is 12’ x 24’. She has already installed the kilns, which were inspected by the Fire Department and Electrical Inspector. Mr. Carter asked about the glazes that were used. Mrs. Dugdale explained that she used non-toxic paints and that most of the newer glazes and paints are water based and non-toxic. The Board reviewed the proposed sign, which met the conditions.

Mr. Mastriano explained that he wanted to build a new addition onto his home and that part of it would be an accessory living unit. Mr. Polito asked him to explain what the bonus rooms and common rooms were. Mr. Mastriano explained that the common room was for both units to use and the bonus room was an addition to the exiting house. Mr. Polito asked what the size of the present home is. Mr. Mastriano said it was approximately 4100 square feet. Mr. Mastriano explained that they really needed a mudroom because presently there was only a very small space coming from the existing garage into the home. He is trying to get additional garage space because the covenants in his subdivision prohibit the parking of cars and boats in the driveway. This proposal would increase the garage space from three to seven cars. Mr. Polito explained that an accessory unit was supposed to be designed so that the occupant would have their own space but would share some of the main dwelling. Mr. Mastriano said the interior walls could be changed to satisfy the requirements. Mr. Polito said the mudroom really delineates the end of the house and that usually the accessory unit connects right into the main house. Mr. Mastriano said there was no other place to put a mudroom. Mr. Polito read the conditions that must be met for an accessory unit with regard to the direct and convenient access. He also read the preamble section 460:0 of the Zoning that describes the reasons for that access. He said that having the accessory living unit so far away from the main home and having a "common" room and a "bonus" room in between didn’t meet the condition of direct and convenient access to the main house. He also had a problem with this unit having its own set of stairs directly to the garage underneath. Mr. Carter agreed that the living unit was as remote as physically possible and could very easily be turned into a rental apartment. He did not suggest that was the intention of the applicant but could be used as such by someone else buying the property in the future. The rest of the Board agreed. Mr. Polito told the Mastrianos that the Board could go through the application, but he could not support that this plan met condition of convenient and direct access. Mr. Carter agreed. . Mr. Mastriano asked if the Board could give him any additional guidance. Mr. Mastriano questioned whether this would be an issue if he had already built the addition with a bonus room and then wanted to put an accessory unit on. Mr. Polito understood that he might want a bonus room over the garage, and that he wanted a mudroom but this plan is really pushing the envelope. Mr. Polito suggested that the Mastrianos see if they can revise their plan and come up with a way to get the proposed accessory unit closer to the house, with direct and convenient access to the main dwelling and adhering to the conditions described in the Towns Zoning Ordinances.

The board then moved onto a brief discussion of the wetlands variance needed for construction of the addition. The Board asked for input from the Conservation Commission. Tim Dziechowski said that The Conservation Commission did conduct a site walk and determined that the wetland was of little value. There was a quorum on the site walk and none of the members felt the proposal would harm the wetlands.

Mr. Mastriano agreed to request a continuance.

Mr. Polito opened both hearings for this matter.

Attorney Campbell explained they were before the Board because of the administrative appeal to a decision of the health officer. The site is a peninsula site on Big Island Pond. The current structure is seasonal. They are proposing to take this in steps. They will submit septic plans for a four-bedroom dwelling, decreased from 5 bedrooms. They want to get the septic plans approved and then come back before the Board to have the dwelling changed from seasonal to year round status. The focus of this evening is the language in 410:8. Mr. Polito asked what the denial was that they received. Attorney Campbell stated that Mr. Chamberlain refused to sign off on the proposed plan. Attorney Campbell said that he had a memorandum that was copied to the ZBA from the Selectmen. Attorney Campbell said the language being challenged was that indicating that existing systems did not need approval to be replaced. Attorney Campbell suggested that Mr. Chamberlain did not understand what was implied from that language in 410:8, but that his personal opinion is that it allows a replacement system less than 100 feet, but greater than 75 feet. He is not convinced that it allows even the replacement of a system if it less than the States requirement of 75 feet. Attorney Campbell claimed that they had to deal with the State. Attorney Campbell read the memorandum from the Selectmen.

Mr. Polito stated that he had a conversation with Mr. Chamberlain. Mr. Polito had a vague recollection of when this zoning was adopted and it had to do with cleaning up some of the wetland zoning. He believed this was intended for state approved septic systems only. He could not say with certainty what Mr. Chamberlain’s interpretation of the zoning is. Mr. Polito said that according to everything in the property files, the cesspool that is on this property does not have a corresponding plan on file or approval from the state. Mr. Polito asked if there was a state approved septic system in place or a plan. Attorney Campbell said there was not. Mr. Polito said that by the definition he is familiar with, a septic system has a plan , a tank and , a leach field, etc. Mr. Polito asked Mr. Camm what type of a system is on the property. Mr. Camm said he would argue that this is a septic system. He went on to say that this is not a typical cesspool and if the government had a standard for cesspools, this would be it. Mr. Camm said this is the best cesspool that he has ever seen. This is a top of the line cesspool. It is about 12 to 14 feet deep. It does not have a solid bottom, but it is earth at the bottom. He also said that the system is in working order. Mr. Carter asked if it were an impermeable structure with controlled input and output baffles. Mr. Camm said that it was not. Mr. Polito said that all of the documentation he has seen from the State has 3 different definitions: septic system, cesspool, holding system. Mr. Camm said that a cesspool is not approvable. Mr. Polito agreed and contended that this was not a septic system therefore it cannot be replaced or repaired per the state. Mr. Polito said that "replacement" has a definition according to DES. Mr. Camm agreed this system could not be replaced with the same type of system. Mr. Polito wanted the record to reflect that a professional, Mr. Camm stated that this system could not be replaced. Mr. Polito asked if this system could be repaired. Mr. Camm said that it could not as a cesspool. Mr. Polito again wanted the record to be clear that Mr. Camm, who is a subsurface engineer, has helped the Board understand that this cesspool can be neither repaired nor replaced per DES regulations. Mr. Camm wanted to clarify that even if the new proposed system was installed and it failed, the site would not qualify for repair or replacement without the proper permits.

Mr. Polito said he was having a hard time believing that a common sense interpretation of the zoning could possibly lead you to the conclusion that the voters approved something that would allow you to totally disregard any of the wetland zoning in a case like this and allow less than the state distances to wetlands. He said that if the applicant could show a septic plan with a leach field, signed off by the State that corresponded to what is in place on the property today, then perhaps this would be considered an existing septic system. Mr. Polito doesn’t believe this even qualifies to be looked at in terms of repairing or replacing. On the plan Mr. Camm shows this as a cesspool and this is a seasonal cottage.

Attorney Campbell wanted the Board to stay focused on the discussion. He claimed Mr. Polito was reading something into the ordinance, which he does not believe is there. Mr. Polito asked Attorney Campbell if a "waste disposal system" was an official term for the State. Attorney Campbell said he was not prepared to concede that the current cesspool was not a waste disposal system.

Mr. Friel asked what the decision of the Health Inspector was. Mr. Polito said it was that he believed the system would have to be at least 75 feet from the water. Mr. Polito said that traditionally, these types of cases have gone before the Health Officer and Selectmen and the 75-foot requirement have been adhered to. Mr. Polito had a hard time believing the voters would have voted something so liberal as to what the Board is being asked to assume about the zoning. He said it does not make sense. Mr. Polito asked Attorney Campbell if he went to the Clerk’s office and pulled out the minutes from the deliberative session and public hearing for the Planning Board from 1993 that would shed some light on the intent of the voters. Attorney Campbell said he did not. Mr. Polito wanted the record to be clear that Attorney Campbell did not do due diligence to determine what the intent of the voters and Planning Board members was and that there may be information documented in the Planning Board minutes and Public hearings minutes regarding this. Mr. Polito said it was not this Boards responsibility to gather that information.

The Board agreed they were only there to affirm or deny the decision made by the Health Officer.

Attorney Campbell stated that he would not belabor the point. He looked at the language, has the benefit or the capability of picking up an ordinance and using common understanding of the words. If he thought there was any purpose, he would assume that the Town would always encourage a replacement, which we all assume is an upgrade of some kind of an existing system. When this language was enacted, there was a whole slew of systems that no longer qualified and allowable in terms of this language. Whether it is a cesspool or a 1967 certified system, to replace a system with modern technology would always be a benefit to the community. Mr. Polito said it was interesting that Attorney Campbell took this point because when he represented the Osborne’s regarding their property on the island of Big Island Pond, he had quite the opposite opinion and claimed if a system is not in failure it should be left alone. In fact, Attorney. Campbell had represented that as the opinion of professionals. Mr. Polito asked Attorney Campbell if that were his recollection. Attorney Campbell did not know what Mr. Polito was referring to. Mr. Polito asked Attorney Campbell if he wanted him to get the minutes of the meeting to refresh his memory. Attorney Campbell did not respond.

Mr. Polito said the Board was voting on the strict confines of a decision made by the Health Officer, where he interpreted that in this particular case, a system placed on this property must meet the 75-foot setback.

Abutters List was read with the following present: Mary Ann Casey; Attorney Campbell

Mr. Polito asked if this application was putting the chicken before the egg. He asked Mr. Camm if he went to the State for approval of the septic before coming to the Board. Mr. Camm explained that Mr. Chamberlain would not sign the proposed plan; therefore they could not go before the State. Mr. Polito understood that but stated even if the Board granted a variance he was not sure that Mr. Chamberlain would sign the plan. Mr. Polito asked if the State required a variance from zoning prior to approving a plan. Mr. Camm said they require a plan signed by the Town of Atkinson’s Heath Officer, who refuses to sign it. Mr. Polito does not believe this is the right sequence. This would put this Board in a position where the Board has to rule on the spirit of the ordinance, and a other criteria, in which pertinent information from the Health Officer is needed. Generally when the Board is looking at a seasonal conversion, it has an approved plan from the State. Attorney Campbell said they are not asking for a conversion of status at this meeting but may in the future. Mr. Polito said the applicant is asking the Board to make a decision without information, which can be gotten before coming to this Board, i.e.; the Health Officer. In other words if the applicant cannot get the Health Officer to sign off on the plan, what is the point of this Board granting the Variance? Mr. Polito did not believe Mr. Chamberlain was waiting for a variance before he signed the plan. Attorney Campbell disagreed. Mr. Polito asked if Attorney Campbell had a letter from Mr. Chamberlain stating this. Attorney Campbell said that he has letters from the Town Administrator informing him that the proper venue for this is through the ZBA. Mr. Polito asked what the denial was that gets the applicant before the Board tonight. Attorney Campbell claimed it was that Mr. Chamberlain would not sign the plan. Mr. Polito said he needs a piece of paper stating why Mr. Chamberlain won’t sign it. Mr. Polito believed that based on a conversation with Mr. Chamberlain, the reason he won’t sign it is has nothing to do with Atkinson’s Zoning. It has to do with his concerns with septic systems distance to the lake, which is proposed by the applicant to be less than the state requirement of 50 feet. Attorney Campbell asked how he could force Mr. Chamberlain to document his reasons for denial as he has requested this several times. Attorney Campbell stated that he could subpoena Mr. Chamberlain. Mr. Polito believed Attorney Campbell needed to go before Mr. Chamberlain with a plan and request a denial and the reasons for the denial. The Board members are not waste disposal professionals and cannot grant a variance on something they do not have expertise on. Mr. Polito wants a letter or a denial from the Health Officer specifically stating the reasons for the denial. He does not believe this case is properly before the board. Mr. Polito believes there must be some sort of miscommunication and offered to help Attorney Campbell get some sort of a decision from Mr. Chamberlain if he could not obtain the same. Mr. Polito also said that he did not want to do this piecemeal but instead wanted that whole application, including the request for a change in seasonal status to year-round status all at the same time.

Attorney Campbell requested a continuance based on the Board’s recommendation.

Ms. Rochford asked that Big Island Pond Association be put on the list of abutters. Attorney Campbell said that he would do that as a courtesy.