Incoming

Beaumont & Campbell Attorney’s to Joseph Chamberlain dated 8/25/05 re: 37 Stickney Road, Map 23, Lot 32.

Planning Board Legal Notice for meeting of 9/14/05.

Zoning Board Budget printout dated 8/31/05.

State of NH, Office of Energy and Planning notice of Fall Conference.

Memo to Frank Polito from Joseph Chamberlain dated 9/9/05 re: Casey Property, 37 Stickney Road, Map 23, Lot 32.

Memo to Frank Polito from Hemlock Heights Improvement Association dated 9/10/05 re: Map 22, Lot 57 square footage.

Home Business Application from Timothy Climo, 17 Hemlock Shore Drive, Map 22, Lot 74.

Attorney Bernard Campbell dated 9/13/05 re: requesting hearing delay.

Attorney Bernard Campbell FAX dated 9/14/05 re: Casey hearing, 37 Stickney Road request for continuance.

Lawrence Bell dated 9/14/05 re: Home Business Application for "Ethan Morris Mortgage", 13 Hickory Pond, Map 13, Lot 94-7.

Board reviewed the Application for Home Business and determined that it was Exempt.

Outgoing

Mr. Michael Murphy dated 8/22/05 re: Home Business Renewal approval for 50 Summit Drive, Map 8, Lot 53.

Ms. Michele Dugdale dated 8/22/05 re: Home Business approval for 11 Old Coach Road, Map 7, Lot 199-34.

Attorney Bernard Campbell dated 8/23/05 re: Casey, 36 Stickney Road, Map 23, Lot 32.

Catherine Bodycote dated 8/22/05 re: Home Business Exempt approval for 23 Aspen Drive, Map 10, Lot 7-36A.

Thomas & Diana Atkins dated 8/23/05 re: 83 East Road, Map 19, Lot 10.

The following amendments/corrections were made:

Page 3, first paragraph, replace ??? with 460:0. Delete second period after access, and agreed.

Page 3, second paragraph, replace ??? with last name of Dziechowski.. Last paragraph, delete period after received.

Page 4, last paragraph delete words ‘read the letter and’.

Page 5, 1^st paragraph delete second period after word cesspool.

Page 6, last paragraph, delete period after word denial.

Page 6, last paragraph, ‘piece meal’ should be corrected to one word ‘piecemeal’.

Abutters list was read with the following present: Christopher Mastriano, Maria Mastriano

Mr. Mastriano presented the Board with a new set of plans showing the proposed in-law with direct access to the existing family room and located on the first floor. The upstairs is a bonus room to the main house.

The Board reviewed the criteria:

This criterion was met.

This criterion was met.

This will be a condition of the approval

This criterion was met.

This criterion was met.

This criterion was met.

This criterion was met.

This criterion was met.

This will be a condition of the approval.

This criterion was met based on a letter from Steven Cummings that the septic system meets the guidelines.

This will be a condition of the approval.

Attorney Campbell asked for a continuance of this hearing as he had only received the letter from Joe Chamberlain the day before the hearing and needed more time.

Abutters list was read with the following present: Matthew Trudel; Attorney Groff; Attorney Bernard Campbell; Paul Hammond

Attorney Campbell presented a memorandum to the Board. Attorney Campbell claimed there were no facts at dispute, but rather a matter of interpretation and believed this was a very technical legal argument. The property is in a rural cluster residential development. At the time the plan was approved in 1996 there were no specified minimum side setbacks. In 2001, the ordinance was amended by the addition of Section 600:8:B to provide for minimum of 15’ side setbacks in the single-family residential clusters. The appellant’s position is that the 2001 zoning setback requirements apply and the building inspector erroneously applied the 1996 regulations. The town was aware before the building permit was issued that these concerns were apparent. The Town’s Attorney had responded to the correspondence in Exhibit B and concludes that this cluster subdivision was grandfathered. Attorney Campbell states that the grandfather position applies to vesting rights of the cluster subdivision project but not to all zoning regulations, such as the 2001 setback regulations. He cited an article by Attorney Bernard Waugh regarding this.

Mr. Polito explained that this was developed as a cluster development. At the time it was approved there were no setbacks to the sides and street from within individual lots in the cluster. The only setback was the buffer zone which was a 100-foot setback. The buffer setback was changed to 50’ in the 2001 zoning as well as addition of setback to the sidelines. Mr. Jones has been interpreting the zoning change as grandfathered. If there is an undeveloped lot, and someone wants to develop it, it does not fall under the newer zoning, but rather the rules that were in place at the time the cluster was approved. Mr. Polito summarized that the appeal is basically saying that Mr. Jones made a mistake and applicant believed the new zoning should be approved.

Attorney Campbell’s first proposition is that the Court has said the property owner has no right to the continued existence of any particular zoning classification for property. The Town can undertake to amend it’s zoning ordinances. Mrs. McGrath agreed. Attorney Campbell believes there is both statutory and constitutional protection for non-conforming uses. This use is not non-conforming because it is vacant. There is no established use up until now on the lot. This is an issue on the doctrine of vesting. He agrees that the Carriage Chase project is a vested project and if the Town was to increase the lot size or the frontage, that it would not affect these lots because they were created. There is a vested right to develop the lots in existence. There contention is supported by Henry and Murphy v. Town of Allenstown. The vesting does not apply to changes with regard to individual building lots because the courts are talking about the vesting of a project. In Henry and Murphy v. Town of Allenstown, the court said the lots are vested and cannot be disturbed, but the application of other types of regulations to the lots themselves is not vested. You cannot vest a vacant lot with that kind of protection.

Mr. Carter asked if they were touching on the issue of whether or not vesting would pertain to the buildable envelope. Under the previous interpretation of the law, there would have been a buildable area created on that lot. Anything in that envelope would have been legal. Under the changed ordinance, the buildable area, in effect, would have been decreased. Is there something in the case law that that talks about a vested interest in the buildable area? Attorney Campbell would argue that the building envelope is not a vested piece of the subdivision at the time. There either were no building envelopes or the building envelope was out to the lot lines because there were not setbacks except to the 100" buffer. Mrs. McGrath asked if the building envelope was addressed in the planning phase and whether it was identified on the approved plan. Attorney Campbell said the planning board did not have to address it because the ordinance did not require it. Mrs. McGrath asked if it were not indicated on the approved plan/project, then how could it be vested. Mr. Polito said there was a building envelope in the sense that it was to the lot line, restrictive of buffers and wetlands.. Mr. Carter agreed and said that under the old ordinance, if an engineer was asked for the buildable envelope, he would have said everything except for the 100 foot buffer and also taken into consideration the proximity of other buildings. Mr. Jones said that buildings have to be 50 feet from each other if not sprinkled and 30 feet if sprinkled. Mr. Polito said there are building envelopes on the plans. No building envelope was indicated on any plans before the board. Mrs. McGrath questioned Mr. Polito’s statement. Mr. Polito did not know if this was pertinent, but said it has to be demonstrated that there is a buildable area on every lot.

Mr. Polito believed there was another issue that he wanted Attorney Campbell to address in regard to the issue of vesting. All of the case law that he is familiar with talks about vesting with regard to stand-alone lots. This situation is not the same thing. This subdivision falls under RSA 674:21, Innovative Land Use Controls. It is not a single-family lot subdivision per se. It is a cluster and is essentially similar to a condominium project, except there are detached homes instead of multi-unit condos. Mrs. McGrath took issue with Mr. Polito’s comparison and said this is just as much not a condominium as it is not a single family. Mrs. McGrath stated that there is no individual land or building ownership in condominium and there are other marked differences between cluster lots and condominiums. Mr. Polito said if you read 674:21, it talks about cluster developments. When you buy one of these lots, you don’t just buy the lot, you buy what is in the plan. There is common interest with everybody else in a set of common assets, be it land, buildings, roads, whatever. Mr Polito said he believes that vesting in a cluster that occurs under 674:19, is different than single family lots in a subdivision not falling under cluster or 674:21. Atkinson Zoning Ordinances, which talks about stand-alone lots, fall under an entirely different section of the town’s zoning. Mr. Polito said that the Board needs to be very careful about what Attorney Campbell contends. This is not a subdivision it is a cluster. Mrs. McGrath stated that this is a subdivision, a cluster subdivision. Mr. Polito asked Attorney Campbell to point out in case law, whether the cases cited were for stand-alone lots or whether any of it applied to anything approved under innovative land use RSA. Attorney Campbell could not tell if any of them were specifically related to innovative land use; however he would state that in every aspect this is a subdivision in the legal sense. Mr. Polito disagreed and said it falls under a totally separate set of rules and this lot could not be separated out from the cluster. Attorney Campbell agreed it was approved as part of a cluster. Mr. Polito thought the distinction was that in the cluster you owned common land. Mr. Polito said this was not approved under Atkinson’s zoning for the standard single residential lot. It was approved under a cluster subdivision, which falls under different legislation. This has caused some confusion.

Attorney Campbell wanted the Board to look at an article from Attorney Bernard Waugh regarding grandfathered rights. Attorney Campbell also made the argument that if they assumed the 15’ setback was not applicable, which they claim it is, the other language in section 608 of the old ordinance. They do not believe that an 8’8" setback would be consistent with what the Town permit officials should approve. There was no standard or guidance under the old language. There position is that an 8’8" setback would not serve the purpose of rural cluster subdivisions. If the planning board has determined under the new ordinance that 15’ is acceptable, the even under the discretionary permit system, 15’ ought to be the standard.

Mr. Carter asked Mr. Hammond how far off the line his house was. He said he was approximately 54’ feet of f the sideline. He built his house with the intention of putting an addition on that side. He wanted to leave enough room and still have a sideline setback. The proposal would make him have to keep 30’ in between the houses and infringes upon his use of his property. The use of his property will be restricted. Mr. Jones said that Mr. Hammond chose not to have his house sprinkled so he has to maintain a 50’ setback. Mr. Polito wanted clarification that regardless of the zoning changes, this situation can happen in a cluster and outside of a cluster. If you put a septic system in and there is no regulation against it being placed right near the property line, and you got there first, your neighbor might not be able to put their well where they wanted to. By the shear nature of zoning and health regulations, what goes on one property does have an impact on another. It is a matter of who’s first. Mr. Carter said if Mr. Hammond contemplated an addition, which was 8’ to the line, then the applicant wanted to put a house on this lot, the house would have to be sprinkled. Mr. Hammond contended that under the subdivision approval, none of the homes were required to be sprinkled. They were only required if you were within 30’ of another building. He believed that each property owner should share a burden of the setback. He believes this property could be developed and still keep this in mind. Mr. Polito said he understood, but the unfortunate reality is that he is asking for fairness that was not granted by the Town of Atkinson in zoning. The cluster subdivision rules that this was built under do not accommodate this sense of fairness. Regardless of which zoning he wants to apply, the notion of one lot affecting another exists. Mr. Polito did not believe it was a valid argument because it applied to all lots, commercial, residential, etc. He who gets there first, gets to do what he wants under zoning and it may affect an abutter. Attorney Campbell contends the Town has the right to modify the setback and that the case law supports it.

Attorney Groff, who represented Mr. Trudel, presented the Board with a memorandum and a plan showing what the subdivision looked like now. Attorney Groff contends that at least 15 houses are

closer than 15’ to the lot lines .

Mr. Polito asked if there have been any other building permits issued in this subdivision since the zoning has changed. Mr. Jones believed he had, but could not say which ones unless they looked them all up. Mr. Polito asked if there were any issued in any other cluster subdivisions. Mrs. McGrath only wanted to know about this one. Mr. Polito said it was relevant to all, because if the Board ruled that they disagreed with Mr. Jones in his interpretation, he will have to use a whole new set of rules, going forward. Mrs. McGrath believed it would be good to know what years the building permits were issued. Mr. Polito asked Mr. Jones if he issued building permits closer than 15’ to the sideline since the zoning change. Mr. Jones believed he had but could not remember how many without researching it. The Board agreed it was not his job to do this now. Attorney Groff said this was a vested subdivision in terms of the previous ordinance. Fifty percent of the houses have less than 15’ to the sideline. This is the way this subdivision was designed to be built. In terms of buildable area, if you apply the current ordinances, this house cannot be built on the lot because of the landscape buffer, thereby rendering this lot un-buildable. Attorney Groff contends the Board has already ruled in a prior case involving the same applicants, attorney and building inspector in the same subdivision that prior zoning ordinances apply. Mr. Polito said that was the 100’ v the 50’ buffer. Mr. Polito said this was a different case and what caused that situation was that in the zoning that if you want to change the attributes of a cluster; you have to go back to the Planning Board. It was not a zoning issue per se; it was asking the Board to give a variance on something that is a civil matter. The Buffer became part of a recorded plan that everybody had a right and an interest in. The Board did not have the authority to deal with the issue. The Board agreed this case was the application of zoning and not a covenant. Attorney Groff contended that the Board decided the pre 2001 zoning ordinances applied to this cluster. Mrs. McGrath disagreed. The Board had ruled that they agreed with the decision of the building inspector. They did not rule that they agreed with the reasoning of the person was appealing. Attorney Groff said he agreed with the Town’s Attorney, that this subdivision was approved under the 1999 version of the ordinance and that there were not any sideline setbacks. Attorney Groff said that even with a 30’ buffer, Mr. Hammond would still have about 28’ to build an addition. He does not know how Mr. Hammond’s rights are being interfered with, when they are building a house within the buildable envelope and permitted on this lot by the pre 2001 ordinance. The only rights being interfered with are the Trudel’s, who bought the lot after consulting with the Town to make sure it was a buildable lot. If the new ordinance were applied, this lot would be unbuildable. Mrs. McGrath disagreed and said they could apply for a variance. Attorney Campbell just wanted to agree that if the Board were to find that the new setbacks applied, it might well mean that the applicant has to come and get zoning relief. They may qualify under the 5 criteria. His client is not comfortable with an 8’ sideline setback. Attorney Campbell agreed the prior case Attorney Groff referred to was brought back to the Planning Board for a modification.

Mr. Polito said all this discussion is very interesting, but not pertinent to the ruling the board needs to make. He said it boils down to affirming or not affirming the Building Inspector’s ruling that the current zoning setbacks do not apply. This was discussed with Attorney Kaman who reasoned that because this is a cluster subdivision, vesting has occurred. If this were a single-family subdivision the answer would be really simple, vesting does not occur until the house is built. This case is complicated by the fact that it is a cluster subdivision. The question for the board to answer is whether Mr. Jones is correct in the assumption that because this is a cluster, he applied the old zoning, specific to clusters at that time. He did this because he believes vesting can occur before the house is built in a cluster. Mr. Polito said there is no black and white answer. Clusters fall under a different RSA and zoning and are created as a whole unit, not single stand alone lots. The Board needs to decide if there is something about clusters that causes them to be vested before the houses go up. We either agree with Bob’s interpretation or we don’t.

Mrs. McGrath and Ms. Rochford both thought that they needed more time to review the written materials presented and the zoning. They asked for a continuance or more time. The other members of the Board said that continuing the hearing would not be fair to the applicant. Mr. Polito said Mr. Trudel has a building permit and has been stopped from proceeding by Mr. Hammond’s appeal. Mr. Polito wanted to vote on this tonight. Mr. Carter and Mr. Friel felt they had sufficient information to vote on this tonight. Mr. Polito suggested that they take a recess so that the Board members could review the information.

Mrs. McGrath said she had sufficient time to review the material and the recess ended. The Board agreed this was a matter of interpretation, was very technical regarding vesting, and that the only question before them was whether or not Mr. Jones made in error in granting the building permit. Mrs. McGrath did not believe that Mr. Jones made a clear error of law regarding the interpretation of the zoning.

Diana & Jeffery Fay request for an Appeal from Administrative decision of the Building Inspector’s denial of an application for In ground Pool permit and Variance from Article VI, Section 600:11 of the 1997 Zoning Ordinance to permit construction of an in ground pool to extend 37’ into the 100’ cluster project buffer on property located at 7 Millstream Drive, Map 11, Lot 41, TR2 Zone.

Abutters list was read with the following present: Diana Fay

Mrs. Fay explained they wanted to install a pool and thought they were a single-family home. Mr. Polito explained that the Board recently had a case like this and read Section 600:22 of the zoning, Amendments to an Approved Plan. The Board had looked at the plan and reached the conclusion that it was not zoning. The 100’ buffer, while zoning at the time of the cluster approval, was now a covenant that everybody in the cluster had an interest in. Even though there had been a relief in zoning, there were recorded plans and deeds referencing the buffer. Mrs. McGrath asked if this would be a minor case. Mr. Polito said it might. The applicant would have to get all of the abutters to agree and all of the deeds would have to be changed. The Board looked at the plans for the subdivision, which showed the 100’ buffer setback and agreed that once the plans were recorded it was no longer a zoning issue, but a covenant issue. The Board agreed they did not have jurisdiction.

Minutes Transcribed from Tape

Respectfully submitted

Rebecca Russo Approved ________________________