Correspondence

Incoming

Home Business Renewal Application – John Sinclair, 42 Salem Road, Map 2, Lot 3

Sumner Kalman dated 8/18/03 re: Saviano v. Town of Atkinson Notice of Hearing.

Atty. Peter Solomon dated 8/14/03 re: Currier, Sleepy Hollow Road request for minutes and tape of 8/13/03.

Home Business Application – Donald Steele, 61 Main Street, Map 4, Lot 12. . Based on the Application as submitted the Board agreed this was exempt.

Zoning Board budget printout dated 8/29/03.

Sumner Kalman dated 9/10/03 re: Currier vs. Town of Atkinson Motion for Further Review.

Letter from the Conservation Commission dated September 10, 2003, regarding Daniel and Margaret Osborn, Hemlock Shore Drive.

Outgoing

Paul Currier dated 8/19/03 re: Currier rehearing results.

Theresa Ashford Home Business Renewal approval letter dated 8/20/03.

Zoning Board Legal Notice for meeting of 9/10/03.

MINUTES:

The minutes of August 13, 2003 were reviewed with the following additions/corrections made;

Page 3, last paragraph, second sentence at the very beginning add "Mr. Polito said".

Page 3, last paragraph, fourth sentence, after "entertain a", add "a presentation of the house to be built".

David Holigan; Mr. Smith; Chase Island Association; Big Island Pond Association; Ms. Wasalchuck

Mr. Holigan explained that he contacted the Wetlands Bureau for the State of New Hampshire and that they would not allow any constriction within the 50’ wetlands buffer to the lake if there was any other place the construction could take place. Mr. Holigan explained that he wanted to enclose an existing deck and is not going any further than the existing living area. Mr. Carter asked if the underneath would be open and Mr. Holigan stated that it would be open. Mr. Polito asked what the other building was and what it would be used for. Mr. Holigan explained it would be used for woodworking and storage because the main house has very little storage. There would be no storing of chemical or hazardous materials.

Mr. Polito asked the current size of the house. Mr. Holigan said the house was 20’ x 32’ with a 20’ x 22’ addition that was built before he bought it. Mr. Carter asked if the existing home was encroaching in the 50’ buffer. Mr. Holigan explained that it was and was built that way in 1976 before the Shoreline Protection Act. The addition may have also predated it. The Board reviewed the plans. The Board reviewed the RSA pertaining to accessory dwellings in the buffer.

Mr. Polito read a letter from the Conservation Commission, which asked for deferral on this proposal. Scott, who was present, stated that the Commission had not seen any plan before but since Mr. Holigan was staying within the guidelines of the Shoreline Protection Act, it that would have been the only concern.

None of the abutters raised any concerns or objections as long as it meets the requirements of the Shoreline Protection Act.

1: Mr. Holigan explained that he has one of the largest lots in this area. The Board

agreed this criterion was met.

2. Mr. Polito did not see how the public interest would be harmed. The Board agreed this criterion was met.

b) Mr. Polito stated that the applicant has represented that this proposal meets

the Shoreline Protection Act. The Board agreed this criterion was met.

c) The Board agreed that this lot was larger than most. The Board agreed this criterion was met.

4. This falls under the Shoreline Protection Act and therefore has greater protections. There is no plumbing in the workshop. The Board agreed this criterion was met.

Mr. Carter made a motion to grant the request for a Variance for the above referenced based on all five of the conditions being met and compliance with the Shoreline Protection Act. The representation by the applicant is that there will be no plumbing or living space in the workspace. No addition will impinge more than 50’ into the wetland buffer zone as shown on the plan presented. Mr. Ashford seconded the motion and it was unanimously approved.

Abutters List was read with the following present:

Mr. And Mrs. Ashworth

Mr. Ashworth explained that he had a screened porch on the back of the house which they wanted to take down and add living space. They want to extend the deck to the front of the house with an additional bathroom and to connect the house to the existing garage. The Board reviewed the plans presented by the applicant. There is a little garage under existing deck. They will put a set of barn doors on the small garage.

The current house is very close to the lot line but was built that way. They are proposing an additional encroachment of 8’ into the wetland buffer zone. Mr. Polito read a letter from the Conservation Commission, which recommend approval of this request. Scott indicated that the wetland is of very little value. The applicant is improving the existing condition of the little garage under the existing deck. The leach field is located on the other side, which prohibits the ability to construct anything on that side.

Mr. Polito read a letter from the Enforcement Officer, not relating to this application, but an issue that the Ashworth’s must resolve. Mr. Polito asked the Ashworths if this issue had anything do to with the expansion of their home. The Ashworths indicated that the expansion is not for any business use and the two are unrelated.

The Board reviewed the criterion:

The Board agreed this criterion was met.

The Board agreed this criterion was met.

a. The structure already exists within the buffer zone. The Board agreed this criterion was met.

b. Based on information that the applicant has provided, as well as the Conservation Commission, this does not appear to be a high value wetland. The Board agreed this criterion was met.

c The Board agreed this criterion was met.

The Board agreed this criterion was met.

The Board agreed this criterion was met.

Mr. Carter made a motion to grant the Variance referenced above based on the 5 conditions being met and per the plan submitted. Mr. Lewis seconded the motion and it was unanimously approved.

Mr. Keane

Mr. Keane explained that Stewart Farm Road has four homes on it. He is proposing an addition where the current driveway is. The Board reviewed plans that the applicant provided. There is currently a three-bedroom house on the property. There is a one-car garage under. The addition will be constructed on top of the current driveway and will become an attached garage. Mr. Keane said that his property line is 75 feet from his neighbor and that the neighbor’s well is in the middle of that area. Mr. Keane explained that he has a large septic field right behind where the family room is so there is no way to push the addition back. There is also a very steep decline after the septic field. Mr. Lewis concurred that the lots in this area have very steep backyards. Mr. Keane stated that Stewart Farm Road is also extra wide therefore there is plenty of room to the centerline of the street. Mr. Polito asked if the garage could go further back. Mr. Keane stated that he would need 15’ from the septic and he is already at 15’to his septic. The structure on the lot next door is already closer to the street and had a variance granted when built. Mr. Carter stated that this structure would be in keeping with the neighborhood. There was no abutter input.

The Board reviewed the criterion

The Board believed there was still protection to the neighbors. This is within keeping with the neighborhood. There is a unique setting in the road. The Board agreed this criterion was met.

The Board agreed this criterion was met

a. The Board agreed that based on the topography this is met. The Board agreed this criterion was met.

b. Mr. Carter said that the total separation between the structures (neighboring lots) already exists and is in keeping with the zoning. The Board agreed this criterion was met.

c. Abutter has a septic system on the side with the proposed addition and there is still 100’ of separation. The Board agreed this criterion was met.

The Board agreed this criterion was met.

The Board agreed this criterion was met.

Abutters List was read with the following present:

Mr. And Mrs. Osborn; Attorney Campbell; Big Island Pond Association; Arlene Hawkins

Attorney Bernard Campbell explained that the Osborns want to construct a single family dwelling on this vacant lot. The lot was created in 1954 and is lot 16 on the plan. The lot is 11,200 square feet and is the fourth largest lot in Hemlock Heights Subdivision. All of the other surrounding lots are smaller or substantially smaller lots. Mr. Polito asked if all of the lots had houses on them. Attorney Bernard Campbell stated that he drove through this area and most of them are developed with what appears to be year-round dwellings. This lot has a septic design proposed. The septic design pursuant to the State Regulations would meet state criteria, however does not meet the local criteria. The State requires 75’ from water and at least 10’ from the street. It would be at least 75’ from the proposed well location and 75’ from the abutters well. The local regulation requires 100’ and that is one of the requests the applicant is asking for a variance. The proposed dwelling is to be a two-bedroom year round dwelling as shown on the septic design plan. At its closest point to the water, the front reference line is 41’. Attorney Bernard Campbell stated that he has heard references to the Shoreline Protection Act, in which there are exceptions for undeveloped waterfront lots. He believes this one falls in this category. The applicant is asking to allow 75’ to the septic system, which is consistent with the State Regulation and to allow the main structure 41’ and proposed deck 31’ to the reference line.

Mr. Polito said it was his understanding that the Board does not grant a variance to the septic in this situation. It is a regulation that needs to be heard by the Selectmen and Health Officer. Attorney Bernard Campbell believed it was included in the Zoning Ordinance in Section 400:8, Buffer Zone Language, which requires the Zoning Board of Adjustment’s action. Attorney Bernard Campbell referred to Section 410:8 (a). Mr. Carter agreed this was correct. Mr. Polito asked what the square footage of the house was. Mrs. Osborn stated the main level was approximately 1432 square feet, so there would be a total of 2300 square feet of living space. This does not including the garage. Mr. Polito asked how this compares to other structures in this area. Mr. Polito believed this was very big compared to other houses on similarly sized lots in that area. Mrs. Osborn stated that there are two houses right next to her lot. Lot 60 has a 2200 square foot home and lot 61 has a 2700 square foot home. There is another lot with a new home that is one of the largest in the area, but does not know the actual square footage. Mrs. Osborn stated that lot 60 and 61 were smaller than hers.

The Board reviewed the plans. Mr. Polito stated that the closest point from the house or garage to the water is 41’, the deck is 31’, and the sideline is ok. The setback from the road is 30’, which does not require a variance. Attorney Bernard Campbell stated they are 11’ from the survey line. Mr. Lewis believed that if they move the bed around they could push the house farther away from the water. Attorney Bernard Campbell said there is no way to push it back and still meet the State criteria for design. Attorney Bernard Campbell believed that by turning the bed you would only pick up about 7 or 8 feet. There was discussion regarding this issue. After some calculations, Mr. Polito said the applicant could pick up 9 feet by flipping it on its side and 10’ if another foot was taken. Mr. Polito stated that a smaller house could fit better on this lot. Mr. Lewis said the Town has always had the Shoreline Protection Act in mind with the 50’ regulation. Attorney Bernard Campbell pointed out that although the structure is long, it is only 24’ wide. To drop less than 24’ in a house dimension is difficult. Mr. Polito said the Board might be willing to reduce the distance to pavement. Attorney Bernard Campbell explained that there is still the septic system. Mr. Polito also raised the point that not all of the houses up in that area have garages. Mr. Polito made a general comment referring to the Hardship criteria and that the lot owner does not have a carte blanche right to build any size structure they would like. The real consideration is regarding reasonable use of the property. This is an intensive use of a piece of property that was probably never designed or intended for something this large. Mr. Polito said he has no recollection of the ZBA ever approving of a building this large on a lot that hadn’t been already built on. There are many homes in this area that have been converted to year round, have been expanded or are combined lots, but this case is starting from a clean slate. There is a responsibility of the Board to protect wetlands. Mr. Polito thinks this is a high intensity use of the property and said the applicant and has not fully explored alternatives to better utilization and a less intensive use. Mr. Osborn asked if they could show that precedent that has been set on other properties the same size, does that weigh at all. Mr. Polito said it was something to consider, but referred him to his attorney to acknowledge that that is not how decisions are made. Each case stands on its own merit. Mr. Carter added that the Board is also looking at new construction, so there are no other structures on this lot, etc., to take into consideration.

Mr. Polito asked for abutter comment. The representative from Big Island Pond Association stated that their primary concern is the septic system. It is a small property with a lot of ledge that has been used as a parking lot. He asked about the soils, because he is concerned with the sewerage. He wanted to know about blasting. Another abutter on the lake stated that he was totally in favor of this and that they would not have gotten a perk if there were only ledge on the property. If there is blasting he is sure proper procedures would be taken to protect the water. Ms. Hawkins just wanted to be sure any blasting would not cause any problem for her well. Another abutter had concerns about any blasting and runoff into the cove.

Mr. Polito read a letter from the Conservation Commission to defer action until they could gather information and review the proposal. Attorney Bernard Campbell submitted letters in support of the proposal. Another abutter raised concerns about the location of wells on the abutting properties. Mr. Polito suggested that the applicant find out where the abutting wells were and show them on the plans.

Mr. Carter asked Attorney Bernard Campbell to address an issue relative to the 50’ requirement between the water and construction. Attorney Bernard Campbell referred to Statute is 483b(10). Attorney Bernard Campbell stated that the issue is undeveloped non-conforming lots. The State understood that to throw a blanket on all of those lots might result in takings. That Statute exempts this property in law. Mr. Carter agreed that although there is wiggle room in the law, that does not mean you do not need to meet any requirements. Attorney Bernard Campbell stated that it would be customary for him to have the State approved Septic design, but he is in a catch 22, in that the local Health Officer will not sign off on the design because it does not comply with the ordinance. He suggested the Board take action on the relief on the setback for the septic system, wait for the septic design to be approved by the state and then re-examine the issues of any dwelling to be constructed. They would withdraw that part of the application.

Mr. Polito did not believe there was enough information before them to grant the 75’ variance to the septic. This is incomplete in terms of knowing what a good Subsurface Engineer could do to get this to 85’ or 90’. Mr Polito added there are two abutting wells missing from this plan. Attorney Bernard Campbell asked what the Board would be looking for. Mr. Carter agreed that the first step would be to deal with the septic system. Is this the optimum system design? What are the distances to abutter wells? Can the 75’ buffer be increased in any way, shape or form? Mr. Polito concurred that getting an approved septic plan is crucial. Attorney Bernard Campbell said if this were the prevailing thought of the Board then they would prefer to continue this to the next regularly scheduled hearing. The Board agreed there should be an expert to explain the location and why. Mr. Polito also stated the Board still had concerns and has made conditions in the past about distance to wetlands affecting construction techniques and the size of the dwelling. All of these things should be taken into consideration.

Mr. Polito explained to Mr. Wood that he had the option of continuing this hearing because there were only three members and therefore all issues had to be unanimous. Mr. Wood stated that he understood and wanted to go forward.

Mr. Wood explained he was trying to build a three-bedroom home on an existing undersized 0.54 acre lot, left over from a previous subdivision on Walker Road which used to be a "well" lot. Mr. Polito explained that this lot does not have standing as a preexisting building lot per zoning of 1971. There are no variances on record. Under zoning at the time, it did not meet most of the requirements under Article 5, General Residential and Agricultural District. Mr. Polito said this is just a left over piece of land that once supported a well and is recorded as such on the original sub-division plan.

Mr. Carter believed this request was likely futile because it flies in the face of all zoning principles and Mr. Wood is essentially asking that the board create a building lot where one never existed. The Board reviewed all the numerous variances this lot would need in order to be buildable. Mr. Wood said he knows the lot is undersized, but has State Septic approval and proposes that he can show he can put a house on it. Mr. Polito said in spite of that, it would require multiple variances. Mr. Carter emphasized that this was not simply a case of a lot needing one or two minor variances, the big picture view is that this proposal conforms to absolutely no part of the zoning in effect at the time of its creation and certainly none today.

Mr. Polito asked for abutter comment. All of the abutters were against this proposal, because this is not a buildable lot and it was always indicated as such in town records and the original sub-division plan. They are concerned about water that drains in the back of their properties, which abuts this lot. Some of the abutters claim they have drainage easements on their deeds that restrict cutting of trees, etc., in this area. One abutter was afraid of losing her backyard.

The Board reviewed the criterion:

Minutes transcribed from tape Respectfully Submitted