Town Meetings Zoning Board of Adjustment

RCL Notes ZBA August 3 Meeting notes

7:49 elapsed: Call to order and pledge
8:44 elapsed: Approval of minutes of 7/6 meeting
13:19 elapsed: Jeffrey Marple, 51 Brackett Rd., Map 22, Lot 68-1, variance to allow single family house on lot of 13,233 sq. ft. lot where 66,000 sq. ft. is required, and to permit septic bed bottom within 4 feet of ledge where 6 feet is required. Attorney Tim Phoenix presented for the applicant, arguing that the lot was a grandfathered non-conforming lot of record and that the septic system would comply with the State requirement of 4 foot separation of the septic bed from ledge, but that a variance was needed relative to the tighter town requirement of 6 feet. The Ropers objected in part due to the need for blasting, Member Shawn Crapo said. The building, referred to in deeds as the “Cider House,” dates from 1904 according to Attorney Phoenix. It is currently used by the owner for storage of a car, tools and supplies. He asserts that denying permission to build the house would constitute an unconstitutional “taking,” he said.

57:52 elapsed: Discussion of whether or not this would be a “taking.” Kendra Gemmett, 150 Brackett Rd., expresses support for the barn remaining. Peter Crawford, 171 Brackett Rd., provides aerial photographs from the town’s GIS System suggesting that the barn is actually over the property line and refers to the tax card which indicates that the barn was constructed in 1964, not 1904. The builder disagrees with the barn’s location, but acknowledges that it is within one foot of the line. Mr. Crawford argues that, if any of the existing uses are non-conforming, particularly if commercial, these should cease upon conversion of the parcel to residential use, although the owner could continue to use the barn for uses that are permitted accessory uses associated with the house to be built. Attorney Phoenix agrees that this is a reasonable point and would agree that future uses would comply with the Zoning Ordinance. Jeff Gardner, 6 Brackett Rd., opposes the construction on the grounds that the lot is substandard and would be too crowded. Ben Jackson, Recreation Rd. stated that the barn looks awkward and should either be moved or taken down.
82:14 elapsed: Public hearing closed. Member Paul Goldman speaks in support of the application and allowing the barn to remain. Chairman Patty Weathersby reads the letter in opposition from the Ropers. Member Burt Dibble says that he is inclined to grant approval, but does not have a strong feeling about the barn. Member Shawn Crapo expresses concern about safety issues relating to the barn’s location next to the road. Member Patrick Driscoll states that the barn should be removed if the house is to be built. Chairman Patty Weathersby agrees, referring to the safety issue resulting from proximity to busy Brackett Rd. and sight lines. Burt Dibble states that he had not considered the sight line issue and agrees with Mr. Driscoll and Ms. Weathersby that the owner should choose between the house and the barn. Member Shawn Crapo argues that the use of the barn can be limited. Burt Dibble notes that the garage door would face the driveway, not the street, and changes his mind, stating that the barn could remain.
110:58 elapsed: The consensus is thus 3-2 for allowing the barn as well as the house. Conditions are developed:
1. Access to the barn is to be on the South side (i.e. not from the street).
2. The town Blasting Ordinance is to be complied with. In addition, the Ropers, and anyone else within 1000 feet that requests it, is entitled to a pre-blast survey.
3. Only permitted uses or those covered by section 602.3 of the Zoning Ordinance are to continue.
115:48 elapsed: The factors for granting a variance are voted on. Most votes are 3-2 with the three votes consistent with the determination required to grant the variance. Only Chairman Weathersby voted “no” to the question of whether the values of surrounding properties would be diminished. All voted “yes” on the question of whether the property had special circumstances. The motion of Shawn Crapo, seconded by Paul Goldman, to grant the variance carried 3-2, members Weathersby and Driscoll voting no.
117:49 elapsed: The variance relative to the septic bed within 4 feet of ledge was unanimously granted. Upon inquiry from Attorney Phoenix, Chairman Weathersby and Member Driscoll confirmed that their “no” votes were due to the barn.

125:24 elapsed: Matthew Williams, 20 Huntervale Ave., Map 8.1, Lot 95, variance to allow garage constructed within 3 feet of property line where 20 feet is required (altered from 1.4 feet during the hearing by the applicant). The discussion began with dimensional questions and the size of the garage that was needed. After a quick recess, the applicant increased the setback request from 1.4 feet to 3 feet. There was discussion about the paper street adjacent to the property line. Apparently, when the paper street was eliminated, all of the land was transferred to the adjacent conservation parcel, rather than being split between the two properties. Chairman Weathersby stated that this was not relevant to their determination.
141:44 elapsed: Jaci Grote and Sally King of the Conservation Commission spoke against the application. Ms. Grote referred to their letter and stated that the public owns the adjacent land. Ms. King stated that light and air would be affected, and the conservation land would be crowded. It would be necessary to stand on the conservation land to paint, she argued. Mr. Williams stated that he needs the two car garage as he, his fiancé, and three teenage girls would be living there and two of them have cars.
170:00 elapsed: The public hearing was closed. Member Shawn Crapo stated that most of the conservation lot is overgrown and it is a sizable parcel. No concern had been expressed about runoff. Member Paul Goldman stated that, while he is sensitive to the Conservation Commission and environmental impacts, specific environmental concerns were not raised in their letter. Members Pat Driscoll and Burt Dibble were in agreement. Chairman Weathersby stated that the applicant’s increase in the setback by 1.5 feet had persuaded her. There would be room to paint and get a lawnmower through, she said. The motion to grant the variance carried unanimously, with the condition that an as-built drawing be provided following construction.

188:11 elapsed: Robert Lincoln, 250 Locke Rd., Map 12, Lot 8, appeal of the revocation of a Building Permit following the Building Inspector’s determination that substantial construction had not begun within the required time. Mr. Lincoln explained that he had obtained a building permit for the foundation on June 14, and for the house itself on June 16, both prior to the expiration of the variance, but that the building permits were later revoked. He explained that he had relied upon the variance having been granted and had demolished the house in 2014. He was concerned as he is sitting on a vacant, non-conforming parcel.
204:24 elapsed: Paul Nakrosis, 471 Wallis Rd., stated that he is in a similar situation to Mr. Williams. Chairman Weathersby stated that the Board is not there to give legal advise and explained that variances lapse after two years if there has not been substantial construction. Extensions may be requested and the Board looks fairly generously on these unless there have been changes to the neighborhood. Mr. Lincoln provided data on expenditures that he had made on the property.
217:04 elapsed: The public hearing was closed. Chairman Weathersby stated that she had requested and obtained a legal opinion from Town Attorney Donovan. She stated that this case is troubling as the permits were issued just prior to the expiration of the two year period, and there was no way that substantial construction could have occurred in the remaining time. According to Attorney Donovan’s opinion, the cost of construction incurred to date vs. the overall cost may be considered, as well as construction that may, per se, constitute items of substantial value or worth. However, engineering, architectural and permitting costs may not be considered. Member Burt Dibble added that demolition costs may not be considered either. Chairman Weathersby stated that, in her view, there had not been substantial construction. She stated that she gave Building Inspector Peter Rowell the benefit of the doubt in granting the permit for the foundation so that that could be constructed. Member Shawn Crapo stated that there had been some frustration of purpose and that Mr. Lincoln’s attempts should not be discounted. Chairman Weathersby agreed that the process had not worked for Mr. Lincoln. Mr. Lincoln stated that the day that he had gotten the permit he had the excavator on site, and that was started. However, the foundation guy had been “lost” and could not start work. The foundation was a substantial, $20,000 investment, he said. Mr. Crapo asked whether the Board could grant an extension to the variance that evening. Ms. Weathersby responded that the period had expired and cannot be extended after that occurs.
242:16 elapsed: The public hearing was again closed. Member Paul Goldman stated that, deep down, he does not believe that there had been substantial construction, but an investment had been made and there was confusion. There would not be a substantial benefit to the town from not granting Mr. Lincoln’s request, he said. Chairman Weathersby stated that they needed to determine whether an error had been made by an administrative official. Member Crapo stated that the error had been in issuing the Building Permit. Chairman Weathersby stated that Building Inspector Peter Rowell’s letter had stated that Mr. Lincoln had assured him that the foundation would be completed by July 2. Mr. Lincoln stated that he had said that in May. Member Burt Dibble stated that there would still be recourse if the appeal is denied, as a reapplication for the variance could be made. A couple of members expressed the view that the Board had looked favorably on the prior application and would likely do so again. Chairman Weathersby warned against prejudging the application.
257:44 elapsed: All members excepted Shawn Crapo voted that there had not been an error by the Building Inspector. The vote to deny the appeal carried 4-1, member Crapo voting against.
259:33 elapsed: Mr. Lincoln noted that there is a licensed real estate agent working in the Building Inspector’s office. That person had this property under agreement and had requested a series of 30 day extensions, the last of which Mr. Lincoln said he had denied, putting the “kibosh” on the deal. Member Crapo stated that there was a huge conflict of interest with the employee being engaged in the real estate business. Chairman Weathersby stated that the issue should be raised with the Town Administrator or the Board of Selectmen.