Memo from Joseph Chamberlain, Health Officer dated 8/12/04 re: Osborn Property, Rock Island, Map 22, Lot 39.

Request for Rehearing of Hammond Variance, Map 9, Lot 62-11 by Attorney Bernard Campbell dated 8/9/04.

State of NH, Dept of Environmental Services, Shoreland Amended Waiver dated 8/2/04, re: Michael Saviano, 33 Boulder Cove Road, Map 20, Lot 12.

Zoning Board Budget Printout dated 8/26/04.

Sumner Kalman dated 8/31/04 re: Zannini Jr. v. Town of Atkinson – Answer.

Attorney Bernard Campbell dated 8/31/04 re: Osborn Variance Request.

Town of Atkinson Ordinance for Motorized Scooters, Skateboards, Mini-Bikes and Bicycles.

PB Legal Notice for meeting of September 15, 2004.

Request for Rehearing of Kolifrath Variances, 14 Stickney Road, Map 23, Lot 45 by Mrs. F. Gilliam (abutter).

Attorney Campbell dated 8/23/04 re: Hammond Application, Amendment to Carriage Chase Estates Subdivision plan, Map 9, Lot 62.

Michael Saviano dated 8/16/04 re: Special Exception & Variance continuance instructions.

Robert Kolifrath dated 8/16/04 re:Variance approval.

Legal Notice for meeting of September 8, 2004.

Mr. Polito reviewed the original Hammond application requesting an Appeal to the Building Inspector’s denial of a building permit for an inground pool and adjoining deck within the cluster buffer zone of a property located at 15 Carriage Chase Lane, Map 9, Lot 62-11. He noted the copy of a letter of approval from the Planning Board which modified the provisions of note #14 on the original recorded plan to strike "no new structures or septic system in the 100’ buffer" and replace with "no new structures or septic systems within 50’ and no dwellings shall be constructed within 100’ of the perimeter of the originally submitted parcel known as Carriage Chase Estates Subdivision". Mr. Polito noted that although the Planning Board approval was granted the Zoning Board must address the rehearing request before them.

Board members reviewed and discussed the noted allegations in the request for rehearing from Attorney Campbell. Mr. Carter made a motion to deny the rehearing request based on the facts that no new items were submitted, everything noted had been discussed at the original hearing, the board did not make an error in law and no facts were substantively different from those previously before the board. The motion was seconded by Mr. Friel and approved with a vote of 4 to 1 (Mr. Lewis was opposed).

Mr. Polito read the letter from Clare Gilliam, an adjacent abutter, requesting the board reconsider its decision granting a variance to Mr. Kolifrath, 14 Stickney Road, Map 23, Lot 45.

Mr. Polito reviewed the Kolifrath application for numerous Variances to allow replacement of an existing 2BR dwelling. The rehearing request letter was read and discussion followed regarding the Board’s jurisdiction regarding the abutter’s issues of their tree roots and fieldstone wall. Mr. Polito asked the board if they felt that during the original discussion they had considered the impact to this abutting property or do they feel they should have? Mrs. McGrath noted that under common property law Mr. Kolifrath would have an obligation not to damage the abutters property but if the abutter’s tree roots extend onto Mr. Kolifrath’s property and are impacted by Mr. Kolifrath’s lawful actions, Mr. Kolifrath may not be liable to the abutter and this is not a ABA issue. After additional consideration and discussion of Mrs. Gilliam’s issues, Mr. Lewis made a motion to deny the rehearing request based on the facts that there are not sufficient facts to support a rehearing. The motion was seconded by Mr. Carter and unanimously approved.

Mr. Polito opened the hearing at 8:00 P.M.

Abutters list was read with the following present: Mr. Thomas Schwant; Barry Reed, Son-in-law to Walworth and Mary Lou Williams; Kathy Lombard, Vice President, Big Island Pond Associates.

Noting that Mr. Saviano was not present. Mr. Polito announced that he had received a phone message from Mr. Saviano informing the board that he was traveling to his property down south due to the forecasted hurricane and if he was not present at the meeting it would be because he was unable to return in time and requested a continuance to the board’s next meeting. Mr. Polito stated that if the board should grant the continuance he would have a letter forwarded to Mr. Saviano restating the list of outstanding issues noted by the board on August 11. Mr. Carter noted his concern of granting a second hearing and requested that the letter that is sent strongly recommend that if Mr. Saviano is unable to come to the October 13 meeting he should send a representative. Mr. Carter did not feel the board should grant a third rehearing because of the impact to the abutters coming to the meetings. Mrs. McGrath made a motion to continue the hearing to their next meeting on October 13 accompanied with a letter from the Chairman, listing outstanding items, and repeating instructions and requesting a site visit prior to the next meeting. The motion was seconded by Mr. Lewis and unanimously approved.

Mr. Polito opened the hearing at 8:15 P.M.

Abutters list was read with the following present: Daniel & Maggie Osborn; Attorney Bernard Campbell for the Osborn’s; Big Island Pond Corp.; Mark Bonnito

Attorney Campbell made a presentation to the board reviewing the previous events of an earlier application in May which was withdrawn without prejudice because of numerous questions raised by the board. Having since obtained additional documents a new application was submitted requesting the wetland variance. Attorney Campbell asked the board to look at the application and commented on the following Exhibits:

Exhibit "A" a town tax card for Map 22, Lot 39 with a drawing that was done prior to the addition. He explained that the original dwelling was in the shape of a C and the indent included a 10’x8’ deck plus open space. The unpermitted addition replaced the deck and filled in the other open area of 8’x12’. There was 960 sq. ft. of living space.

The owners are asking to rectify the unpermitted addition which included this area of a 12’x16’, 2 story addition. When the owners were made aware, they moved forward with considerable efforts to address all the issues and board questions and spent a considerable sum of money to bring this application to the board this evening.

Exhibit B - a plot plan/survey informing the board that the existing dwelling was 17.4’ to the water and the deck that was removed was 25’ from the water noting that the setback issue before the board was 2’ closer to the water than the previous structure.

Exhibit C - included a Floor Plan dated 12/31/03 with proposed use of the space. He reviewed the plan and noted that in his opinion there was a 1/3 increase of the living space.

Exhibit D - the Shoreland Waiver approved 5/12/04 which referred to the building plan dated 12/31/03, the same floor plan before the board. Attorney Campbell brought Finding #4 to the attention of the board noting that this was a negotiated item which satisfied the state to protect the lake. A challenge was later made and dismissed.

Exhibit E - Septic Data previously reviewed.

Exhibit F - Rooter-Man, Job Work Order reporting pumping, water testing, dye testing and report on quality of the tank.

Exhibit G – Findeisen Survey & Design Site Assessment for Tax Map 22, Lot 39 with revised site plan dated 6/14/04, soils map, aerial photo and certified plot plan.

Attorney Campbell noted that the Osborns’ under the direction of the Code Enforcement Officer and Selectmen have also put up barriers to the new space as a means for them to not have the benefit of this area until the board makes a decision on this issue.

Mr. Polito requested they address questions and clarifications regarding the exhibits presented before moving on. He noted that in his calculations of the living space he found 780 sq.ft. finished living space and the addition of 384 sq. ft. with the removal of stairways and did not include the front screened porch which in his opinion was not living space. In his opinion there was an increase of 39%. He noted as Chairman and not speaking for the board that he disagreed with the calculations presented by the applicant who calculated the living space at 33%. Members discussed what they felt was living space, the issue of the use of space in a seasonal vs. primary residence. Mr. Polito noted that using the assessor calculations, the living space could be a low of 33% increase and the high could be 49% increase. Mr. Carter pointed out that the board review the rational of living space taking into consideration (1) that the property was a camp (2) there were no screens on the porch (3) the porch space is not heated. In his opinion these facts validated that it should not be calculated as living space.

Mr. Polito then requested they address questions regarding the distance of the septic to the lake. Attorney Campbell referred to the Findeisen Survey, which according to scale was approximately 18’. Mr. Polito read Rooter-Man’s Job Work Order report and noted no septic inspection, just visual was done. He asked Attorney Campbell if in fact Rooter-Man was not a licensed subsurface engineer. Attorney Campbell stated that he was not.

Discussion continued regarding the existing septic system specifics and what an updated system based on today’s regulations would require. Mr. Polito stated that the septic reports did not refer to the life expectancy of the system, if it would continue to work or if it was adequate as a 2BR system. Attorney Campbell noted that to his knowledge septic system reports of this kind generally do not report on the details as outlined by Mr. Polito. Mr. Polito then asked Attorney Campbell if it was true that he could not represent that the system was going to last, Attorney Campbell agreed. Mr. Polito also reviewed the lot loading requirements per bedroom, which is 150 gallons per day and noted that according to the soils for this island the entire island is only able to support 400 gallons per day. He also noted that the report referred to the dwelling as seasonal, used 5 months of the year when in fact the state does not distinguish between seasonal and primary. Mr. Polito asked if the applicant had explored options to upgrade the system or what their future options might be for the system? Attorney Campbell responded that (a) he did not think the options had been explored and (b) the technology exists today although waivers may need to be obtained, in fact the town regulations allow the application of waivers for such a situation to upgrade or repair. Mr. Carter noted that although the plans showed a 2^nd floor loft/office, the board would be naive to not consider that a resident of the property might not use the second floor for a master bedroom and still have two smaller guest bedrooms on the lower level. Mr. Polito agreed and the fact that the state bases the septic capacity on bedrooms and the entire island can only support 400 gallons per day the increase of arguable living space of 33 to 49% lends itself to a much more intensive use of the island especially regarding the amount of waste water disposal. He also questioned why the applicant would have an office in a seasonal dwelling. He again stated his concern with the increase in living space and its potential use given that no information was submitted to assure the board of its present condition or the potential to install an up-to-state standard system.

Mr. Polito read the Town Health Officer, Mr. Chamberlain’s memo to the board dated August 12, 2004. It reported Mr. Chamberlain’s visit to the property, inspection and review of the submitted septic reports. Mr. Polito noted that again there was no representation in the memo assuring the system could not potential leak, no mention of the life expectancy and the notion that the system recharges itself in the off season concerned him. Discussion continued, Mrs. Osborn informed the board that her understanding was that the state took into consideration that the system was for a 2BR dwelling, and noted the fact that there was neither a dishwasher nor a washing machine there and as a seasonal dwelling thus had much less water disposal than a typical 2BR home. Attorney Campbell cautioned Mr. Polito in his approach to take a different position than what was presented by the professionals including the town’s own Health Officer. He noted there were no guarantees but the applicant has had the best available tests done. Mr. Polito reported that according to recent court cases that referred to the specific criteria of hardship, substantial justice and spirit and intent he saw a natural tie-in by noting the more intense use and the fact there are no assurances on the existing system or a means to deal with a potential failure. Attorney Campbell stated that the problem was that Mr. Polito was comparing one consequence to one item that is not related to the application. He reminded the board that they are not before the board because of the increase in size but because they are 2’ closer to the water. Mr. Polito disagreed and noted that the application now requires review of all five criteria and the board must consider the increased living space. He personally felt he could not consider only the 2’ decrease to the setback to the lake but felt the application was much more and the applicant must address and satisfy the spirit and intent of the ordinance and in particular consider the potential for discharge of effluent into a very important lake. Attorney Campbell reported that he would not address the bedroom count as it had not changed and cautioned the board that they should not presume that an applicant is going to do something that is illegal. Mr. Polito restated that in his opinion the increase in living space would result in a more intensive use of the island.

Mr. Polito opened the discussion to the following abutters questions:

Mr. Bryant, Big Island Pond Association President. Reported that BIP board of directors met and prepared an informational letter of concerns in particular the existing septic relative to the increased building size and potential filtration into the lake. They would request that the zoning board feel completely confident in their decision and strive to protect the lake. Mr. Bryant submitted a copy of the letter for the file.

Mr. Bonauito raised the issue of the bedroom definition in the town’s zoning. Discussion followed regarding the fact that the definition as written excluded single family dwellings and was intended for condominiums. Board discussed size and closets relative to what constituted a bedroom. Mr. Polito stated there was no strict interpretation and the concern was the use of the space by subsequent owners as a seasonal property. He did not believe that a decision would rest entirely on the definition of bedroom alone but should be the 33% increase of a seasonal dwelling on a very fragile environment.

Ms. Legault asked if the Conservation Commission had reviewed this addition. Mr. Polito reported and it was confirmed by Attorney Campbell that they did not. Mr. Polito added that it is not a requirement but the board does consider their input.

Sally Osborn asked the Chairman what was his definition of a fragile environment. Mr. Polito reported that his opinion was based on the soil facts and that the island could only handle 400 gallons per day and if the dwelling were 3BR, 450 gallons would be required and they could not meet that requirement. Distance to bedrock is also an issue and in retrospect, he noted that her question was well taken and he would restate the island is not a fragile environment but the lake is.

An additional petition of concern from the lake residents was read by Mr. Polito and added to the file.

A resident suggested a deed restriction relative to the addition of dishwashers and/or washing machine. Mr. Polito noted that it would be difficult to enforce.

Water testing was discussed. A Big Island Pond representative noted that he thought a solution to allow the addition was the goal and that the concern for all the associations on the lake was that of protection and quality of the water.

Maggie Osborn reported that as each professional inspector visited her property she inquired if there was something they should or could do to the system to assure the protection of the lake. In each case the individuals reported that they should do nothing until the system should fail and the town health officer felt that given the system laid dormant for the winter was a benefit. Mrs. Osborn reported that family has occupied the island for 5 generations, they love and care for the island and lake and have done all within their power to bring evidence to satisfy the board. She reported that she had spent thousands of dollars for these reports, has paid a thousand dollar fine to the town, has been harassed by neighbors and asked where the evidence was showing they were harming the lake which would be contrary to the reports that show that according to the professionals hired, there is no evidence of damage.

Mrs. McGrath stated that she was shocked that with all the reports by the association of concern for the water protection no one has done water tests prior to making statements inferring that the lake was being contaminated. Mr. Bryant took offense and reported that his association did not state that there was contamination but that they were concerned with the size of the building and future impact to the water and were asking that the board do their best to protect the lake.

Mr. Bonauito read from previous hearing minutes relative to septic concerns. He reported that he spoke with the town’s health officer who had opinions relative to a replacement system. Mr. Polito stated that he appreciated the report and comments but would not accept it as fact given that it was hearsay. He reported that he also had a conversation with Mr. Chamberlain regarding concern that a state system could ever be put on the island. Mr. Polito also reported that he also did not have his comments in writing therefore, his reporting would not be considered as fact.

Discussion continued regarding the professional reports and the fact that nothing is stamped and with any certainty assures that the existing system is working. Mr. Polito again stated that although the applicant has done due diligence, the issue is the finding of fact and there is no conclusive evidence, only that the system at present is in good working order. Attorney Campbell stated that he made no representations and was submitting the documentation, which he believed, spoke for itself.

Mr. Polito reconvened the hearing and allowed Attorney Campbell to proceed with his detailed presentation and argument of the five criterions.

Abutter comment, Mr. Bonauito raised the following concerns with the addition.

No structural engineering report was submitted as to the soundness of the structure, i.e. snow load. Statement of no soil disturbance, there is no supporting evidence.

Runoff statement is made without any supporting information.

Hearing no further questions, Mr. Polito closed the public input from abutters.

Prior to the board review of the criterions, Mr. Polito reviewed the history of the case, Bacon v. Enfield. He felt that the courts decision was an important consideration for the board and it was discussed. Mrs. McGrath stated that the Bacon decision should not be controlling in this case because the decision was based on different findings of facts than this case and our duty is to first find the facts and make a decision, not interpret another board’s decision. Mr. Carter agreed with Mr. Polito that the case was interesting but noted that when the board votes they will be acting on the facts that were presented in this case to the best of their ability and although interesting it will not be the sole basis for a decision. Mr. Polito stated that his message in reading the Bacon decision was that that Attorney Campbell is contending that all we should be focusing on is his interpretation of what our ordinance is relative to going 2’ closer to the wetland. There is a much broader scope to the spirit and intent of the ordinance. Mr. Polito reviewed the Atkinson Ordinance, Section 410:8, Purpose.

The criterions were discussed by the board and voted as follows:

Noting no discussion or comment, this criterion was unanimously approved as presented.

Mrs. McGrath reviewed the Board of Adjustment handbook dated 2001 and read the applicable guidance statement for this criterion.

Mr. Polito noted that he was not convinced that there was no impact from runoff. No professional opinion has been given and this was not adequately addressed. Relative to the septic system, he felt that the applicant did not represent it as meeting the current state septic requirements and in addition there was no evidence given as to the future life of the system or in fact that it is not leaking right now. With this increase in living space they are making it more convenient and easily usable in terms of going from the pre-existing structure and increasing it 33% to 49%.

Mrs. McGrath felt the necessary information was submitted, and it wasn’t customary business practice to certify or guarantee a future useful life of the system or present the future replacement plans at this time. Mr. Lewis felt comfortable that the system was being used less than 6 months of the year and agreed that no professional would certify how long a system would last. He asked if it would be possible that the board place a condition of inspection each fall to monitor that it is not in failure? Mr. Carter shared Mr. Polito’s concerns, but having no evidence that this criterion has not been met he would vote to support it.

Noting no further discussion, Mr. Polito took a vote on this criterion and it was determined to have been satisfactorily met with a vote of 3 to 2.

Area variance is needed to enable the applicant’s proposed us of the property given the special conditions of the property.

This criterion as presented was determined to be met and a unanimous vote was taken.

The benefit sought to be obtained by applicant cannot be reasonably achieved by some other method reasonable feasible for the applicant to pursue.

Mrs. McGrath noted that in her opinion this addition within the C section of the original foundation was the most logical place for the addition. Mr. Polito raised the issue of why it necessary to bump out from the house 2’ closer to the water when they could have rebuilt the deck and addressed the drainage without the need of relief. Mr. Carter still had an issue with the addition in that it was a substantial expansion of the intensity of the use as a residential dwelling and perhaps rendered the whole property proportionally less adequate to meet its intent which is a summer camp. Discussion continued regarding the benefit the applicant was seeking. Was it to rebuild a deck and fix the drainage problem or to substantially increase the living space by 384 sq. ft.

Mr. Polito asked if the board would vote and agree that the benefit sought to be obtained by the applicant cannot be reasonably achieved by some other method reasonably feasible for the applicant to pursue. The board voted 4 in agreement and 1 opposed.

Mr. Polito asked if the board felt that granting the variance would do substantial justice. The board voted 4 in agreement and 1 opposed.

Mr. Carter felt that this had been fully discussed and the ordinance is clear to protect wetland from the possibility of contamination due to over and intense use. Most of us have judged that it is a substantial expansion and in my personal opinion, could render the property proportionally less adequate to support this amount of living space and possibly increase the risk to water quality. Mr. Lewis felt that given the evidence this property would remain as a seasonal dwelling but he would feel better if a yearly inspection was conducted. Mrs. McGrath agreed with the proposal for a yearly inspection.

Mr. Polito asked if the board felt the applicant’s proposal was not contrary to the spirit of the ordinance. The board voted 3 members ( Frank Polito, Sandy Carter and Bill Friel) feeling it was contrary and 2 (Betty Anne McGrath and Peter Lewis) voting that they felt it was not contrary.

Mr. Polito noted that 4 of the 5 criterion were voted to be satisfactorily met. Mr. Carter made a motion to deny a request of the applicant for a Wetland Variance to Article IV, Section 410:8 to allow an addition to the existing prior non-conforming structure 23’.1" + to wetland based on the fact that all five criterion necessary to support the granting of this variance have not been met, specifically criterion #5 The use is not contrary to the spirit of the ordinance, which did not pass. Mr. Friel seconded the motion, which passed with a vote of 3 to 2.

Mr. Polito made a motion to adjourn the meeting; it was seconded and unanimously approved. Mr. Polito adjourned the meeting at 11:30 P.M.

Minutes transcribed from tape.

Respectfully submitted

Shirley Galvin Approved___________________