ZONING BOARD OF ADJUSTMENT MEETING MINUTES
MARCH 9, 2005
Members Present: Jane Roberts, Chairman, Coni Porter, Vice-Chairman, Daniel Baker, Clerk, Gretchen Wittenborg, and alternate Carl Goldknopf.
The meeting was called to order at 7:30.
Roberts opened the Public Hearing for Case #05-03: John Tommila requests a Variance under Article VIII, Section 127- 34D of the Fitzwilliam Land Use Regulations to allow him to adjust a lot line that will result in decreasing the acreage of a conforming lot from 3.2 acres to 1.317 acres, Tax Map 41, Lot 13, Light Industrial District.
Porter recused herself. Roberts asked Mr. Tommila how this section of the Land Use Ordinance applied to what he wanted to accomplish. Mr. Tommila reviewed maps of the property in question, saying he was attempting to settle his mother’s estate. The Tommila Brothers lumber mill is using a portion of Lot 13, which used to belong to his mother, for lumber storage, which is essential to the business. He said that Lot 13 is currently a dimensionally conforming lot with a house on it. With a lot line adjustment, a nonconforming lot will be created, but no change in usage is anticipated. If he is denied the lot line adjustment he would have to move the lumber storage area and that would entail cutting down a large stand of pine trees, which currently acts as a buffer for the property. He said he would like to have a site walk to clarify his proposal.
Roberts asked again how Section 127-34D applied, noting that neither of the two lots in question is undeveloped. She remarked that there has been no decision made for which an appeal could be entertained. Baker told Mr. Tommila that it is within the purview of the Planning Board to make a lot line adjustment and they are the proper party to go to. Then, if there is an appeal, he should come to the ZBA. He noted that the Planning Board also approves/disapproves subdivisions, but said if Mr. Tommila wanted a subdivision, that would create two nonconforming lots. The drawings Mr. Tommila presented appeared to create a subdivision of one lot into two lots. Baker advised him to clarify exactly what his goal was.
Wittenborg remarked on the lack of a map indicating actual dimensions and asked Mr. Tommila if engineering had been done to mark the lot. Mr. Tommila said that he needed some sense of whether the lot line adjustment would be acceptable before spending money to do a survey. He would like to sell the house. Baker said that a lot line adjustment would create a nonconforming lot since it was being done after zoning regulations had been adopted. Baker noted that it was a ‘which comes first’ situation – do you get the variance to create a nonconforming lot, which you would need if you needed a building permit for that lot; however, in this case the house already exists and perhaps a variance isn’t necessary. Tommila asked if section 127-34D didn’t apply, what does.
Wittenborg moved, Roberts seconded and the Board voted unanimously to refer Mr. Tommila to the Planning Board. Both Baker and Roberts told him that he could return to the ZBA if necessary. Following the vote the Board discussed refunding the application fee and they agreed they would wait to see what the Planning Board’s decision was.
Roberts opened the Public Hearing for Case #05-04: John and Debbie Holman, dba Rotoan, Inc., appeals the administrative decision of the Board of Selectmen denying a building permit for a lean-to shed on property with no frontage, located at Map 8, Lot 2 off Route 12 South, Rural District. Appeal based on RSA 674:41.
Porter joined the Board to hear this case. Roberts asked Mr. Holman to explain his plans. Mr. Holman said he had one to three pieces of equipment on the property at any one time and wanted to have them protected from weather and so he can work on them if the weather is bad. He considered a tent but it is very expensive and might be vulnerable to vandalism. His plan is to create a pole barn, essentially a roof on four poles. Porter noted the Board of Selectmen denied a building permit because there was no road frontage for the lot.
Wittenborg asked if the right of way Mr. Holman presented, signed by the abutter, was recorded at the Cheshire County Registry of Deeds. Mr. Holman said no, it wasn’t recorded, even though they had intended to do so. He and the abutter have an understanding and that was enough for them. Wittenborg said this meant that there was a land locked lot with no recorded right of way, and suggested that Mr. Holman have the right of way recorded to protect him.
Baker asked Mr. Holman if he understood that the abutter could relinquish access if the right of way wasn’t recorded. Mr. Holman told the Board that the deed actually acknowledges the right of way. The Board obtained and reviewed the deed that gives right of way for cattle. The deed states “Together with a right-of-way for a lane of suitable width for cattle to pass to, from and across the west end of the Streeter lot, so-called, to the Kimball lot hereby conveyed.” Wittenborg agreed that legally this gives access. Mr. Holman has since improved that right of way.
The Board reviewed minutes from the Board of Selectmen, which noted only that the building permit was denied as the lot has no road frontage, and was passed by a unanimous vote of the Selectmen. Porter asked what the ZBA would be giving permission for. The Board would give permission for a roofed structure, not a dwelling. Goldknopf called attention to RSA 674:41 II, wherein the ZBA has power to authorize or issue a building permit if conditions are met. Roberts asked if the structure is permanent and Holman answered no, it is 4 posts and a roof with rocks on one side.
Porter asked if the Board was going to authorize a permit, were there conditions to be stipulated. Wittenborg again suggested that Mr. Holman record the right of way agreement he has with the abutter. Holman responded that we get along fine, we’re all happy.
Porter referred to RSA 674:41 I (d), regarding the need to waive liability of the Town for maintenance or damages resulting from use if a road giving access is a private road. Baker moved, Porter seconded and the Board voted to approve the petition for construction of a pole barn for the purpose of sheltering equipment, contingent upon the applicant submitting a waiver of liability to the Town for the road.
The Board agreed that going through the mandatory findings was not necessary in the case of an appeal from an administrative decision.
Minutes: There was discussion about the clarification of one item and the Board agreed to review the tapes before approving the minutes of the February 8, 2005 meeting.
Baker moved, Porter seconded and the Board approved a motion to adjourn at 8:30 pm.
Post Meeting Discussion - The Board expressed their feeling that the appeal application doesn’t elicit the information they need to make a decision, for instance, to have any proposed structure dimensionally described; to have a survey document; and perhaps some documentation of ownership. They agreed that each situation was unique, but they needed enough information to decide on the mandatory findings. Perhaps the application should be revised again.
| 
