Members Present: Jane Roberts, Gretchen Wittenborg, Steve Filipi, Jack Ernst, and Matt Buonomano, alternate.
Others present: Mike Methe, Selectmen’s representative, and alternates Sue Wood and Cathy Davis
Meeting was called to order at 7:00 PM
Roberts asked Buonomano to be seated with the Board in Porter’s absence.
Case # 07-09 Ray Tremblay appeal for an Area Variance to construct a garage that will encroach on the front setback; property located at 311 Upper Troy Road, Fitzwilliam, NH, Map 17, Lot 19-2, Rural District.
Mr. Tremblay explained that the house is angled relative to the road and there doesn’t seem to be a way to attach the garage if it is positioned at a different angle or if it is set back further from the house than proposed. The septic and well are obstacles to moving the garage back as well. The proposed plan sites the back of the garage right at the point where the land slopes steeply toward the back of the property.
In response to a question from Filipi, Mr. Tremblay stated that the closest point of the garage is 50 feet from the stone wall, in from the edge of the road. His home is vinyl sided and was built in 1991. The garage will be built professionally.
Ernst asked why the garage couldn’t be angled so it was parallel to the road. Mr. Tremblay said for aesthetic reasons mainly, but there is no angle that would place the garage out of the setback, and the garage couldn’t be attached if farther back unless the porch was extended. Methe said that, as an abutter, he felt the plan would not be detrimental to the neighborhood. He added that no other structure in the neighborhood meets the 75 foot front setback.
Roberts asked it the Board was ready to deliberate and Ernst moved, Filipi seconded and the Board voted to close public debate. The Board moved to vote on the mandatory findings for an area variance.
1. There would be no diminution in value of surrounding properties as a result of granting this variance. Buonomano, Ernst, Wittenborg, Roberts and Filipi agreed.
2. The granting of this variance would not be contrary to the public interest. Buonomano, Ernst, Wittenborg, Roberts and Filipi agreed.
3.a. An Area Variance is necessary in order to allow the applicant to use the property as proposed because of the special conditions of the property. Buonomano agreed, Roberts agreed, Filipi disagreed stating there are other options for siting the garage, Ernst disagreed saying that without seeing the property he couldn’t make that judgment, Wittenborg disagreed saying that if the garage was angled it might achieve a 60 foot setback.
Methe said that the property pitches off down the back making it hard to relocate. Filipi noted that it was the wording of finding 3.a. that was problematic; he is not opposed to allowing the garage to be sited as proposed. Wittenborg said the Board has generally stuck with allowing encroachments of 10% - 20% and this would be more than that. Wittenborg asked if the alternates in the audience had any comments. Sue Wood said she would like to see the site. Filipi was concerned that without a site walk, granting this variance might set a precedent. Wittenborg thought it was hard to create consistency without a site walk.
Roberts agreed, saying the plan was helpful but there wasn’t enough detail on it.
Filipi moved, Ernst seconded and the Board voted to schedule a site walk. The Board agreed to conduct the site walk immediately after tonight’s meeting, following the next case.
The Board decided to continue to vote on the remaining findings, omitting 3 a. and b. until the site walk was concluded.
4. By granting this variance substantial justice would be done. Buonomano, Ernst, Wittenborg, Roberts and Filipi agreed.
5. The use contemplated by the applicant as a result of obtaining this variance would not be contrary to the spirit of the ordinance. Buonomano, Ernst, Wittenborg, Roberts, Filipi agreed.
Minutes: Wittenborg moved, Buonomano seconded and the Board approved the minutes of the May 8, 2007 meeting as written.
Case # 07-10 Peter and Janet Lopilato appeal for a Special Exception under Article III, Section 127-9B to build an accessory apartment on property located at 432 NH Route 119 E, Map 12, Lot 36-01, Rural District.
Roberts read the case and asked if the Board had questions or comments. Buonomano said he didn’t understand the plat, noting that the plat indicated the house was proposed, the shed was proposed, etc.
Mr. Lopilato responded that the house was built in 1999 but the garage was built in 1998. The proposed apartment will be built in the garage. Methe noted he had seen the property and the garage appeared to be an oversized one car garage. Wittenborg said it was impossible to tell how large the garage was without dimensions noted on the plat.
Mr. Lopilato said the garage is 26' x 28', which would make an apartment under the 800 square foot limit on accessory apartments. Buonomano asked why the apartment couldn’t go in the house. Methe said that the Board needed to be careful in this case that they didn’t create a situation where there would be two separate dwelling units on one lot. Wittenborg remarked that the ordinance was unclear but that it had been interpreted in the past to mean that the proposed accessory apartment was in some way attached to the primary dwelling unit. She said that in this case the garage is not attached.
Mr. Lopilato said he could connect the house and garage with a covered walkway. Buonomano asked Mr. Lopilato to submit a new plan if the current one is incorrect. Buonomano assured Mr. Lopilato that the Board was only trying to follow the ordinances. Methe noted that the Board has to follow town ordinances approved by residents.
Buonomano moved, Filipi seconded and the Board voted to postpone the hearing and do a site walk of the property. It was scheduled for Friday, June 15th at 6 PM.
Wittenborg read 127-9, which states that no more than one building for dwelling purposes shall be located upon a lot. Cathy Wood, alternate (not seated), asked if the family could make any changes to the plan before the site walk so the Board could discuss them on Friday.
Mrs. Thompson, abutter, said it sounded like there were alternatives that could meet the requirements and wondered if the Board could conditionally approve the appeal based on changes to the plan. Wittenborg said the Board couldn’t approve two detached buildings used as dwelling units. Mrs. Thompson asked if that was true if the family agreed to join the two buildings. Filipi noted that, in theory, a single piece of lumber could join two structures and they could be considered attached. Filipi added he didn’t think a site walk would change the argument in this case.
Anna Goettle, an abutter, said she was a property owner who had not built yet, and was very impressed with the process.
Wittenborg noted that the Board had never approved two detached dwelling units or two units that were attached by a single piece of lumber.
Mr. Haeberle, abutter, asked if the Lopolato’s were planning to build another garage if they were going to convert this existing garage to an apartment. Mr. Lopilato said no.
Roberts asked if the Board wanted to continue the hearing to the next meeting. Ernst asked if the Lopilato had submitted a building permit application, which would have dimensional information. Mr. Lopilato said yes. Wittenborg said that information should have been available to the Board.
Methe suggested this meeting was going nowhere and it could be continued to gather more information on definitions, case law, precedents. Buonomano read the definitions of building, structure, dwelling unit from the Land Use Ordinance. Wittenborg said they needed more specific paperwork, and suggested postponing the site walk to work on the definitions, legal opinion, etc and review the building permit. [Research indicates the Lopilatos have not yet submitted a build permit application. sg 6/14/07]
Wittenborg moved, Filipi seconded and the Board voted to continue the Lopilato hearing to July 10, 2007 at 7:30 PM.
Buonomano asked what the Board would be looking for next meeting. Wittenborg said they would look at the building permit application, review language in the ordinance and research the way it has been applied in the past. Methe added that he’d like to get a legal opinion on whether or not a single piece of lumber could be considered as attaching two structures.
Buonomano asked it there was any possibility of considering provisions in the temporary dwelling ordinance for medical purposes, given that the need for the apartment was primarily so a daughter could live on site to provide caregiving for her father. Filipi thought this might be a perfect situation to consider a use variance, adding he didn’t want this case to go on for months. Roberts said the Board wants to make sure of the definitions and wants a clearer picture of what exactly the Lopilatos are proposing. Filipi asked that if the Board finds out information before the next meeting that would require the applicant to make any changes, that that information be communicated to him. The Board indicated they agreed.
Mr. Lopilato said that while the apartment would be for their daughter now, she will inherit the house eventually.
Wittenborg moved, Filipi seconded and the Board voted to adjourn the meeting to conduct the Tremblay site walk before it got any later.
Tremblay site walk: The Board reconvened at the Tremblay’s home and conducted a site walk of the property at 8:00 PM. Members noted where the garage would need to be located to meet the 75 foot setback. The garage site was marked on the ground and a chair had been positioned at the 75 foot setback mark. The Board noted this point was way down the slope from the house. Davis thought repositioning the garage would not be aesthetically pleasing. Filipi thought that the angle would be too severe if repositioned. Wittenborg noted it would limit the use of the back yard.
Roberts called the meeting back to order at 8:20 PM. Buonomano read mandatory findings 3 a. and b and the Board proceeded to a vote on these findings.
3.a. An Area Variance is necessary in order to allow the applicant to use the property as proposed because of the special conditions of the property. Filipi agreed, adding that to angle the garage might mean the house would lose value aesthetically, Buonomano agreed, Ernst agreed, Wittenborg agreed, Roberts agreed.
3.b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden. Filipi agreed, saying it would be very expensive if the proposed garage was sited differently, Buonomano agreed, Ernst agreed, Wittenborg agreed, Roberts agreed.
Roberts moved, Buonomano seconded and the Board voted unanimously to grant the Area Variance.
Filipi moved, Roberts seconded and the Board voted to adjourn at 8:40 PM.
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