ZBA MEETING MINUTES
FEBRUARY 8, 2005
Members Present: Jane Roberts, Chairman, Coni Porter, Vice-Chairman, Daniel Baker, Clerk, Edwin Mattson, Gretchen Wittenborg, and alternate Carl Goldknopf.
The meeting was called to order at 7:35.
Roberts opened the Public Hearing for Case 05-01. George and Lise Patten request a Special Exception under Article VIII, Section 127-36 C. of the Fitzwilliam Land Use Code for the property on Map 23, Lot 4 in the Rural District on Laurel Lake, to rebuild a nonconforming dwelling on a nonconforming lot.
Roberts invited Mr. Patten to present his request. Mr. Patten told the Board that he and his wife inherited the property in1989. He said that the Town had widened and raised the road prior to the inheritance, resulting in snow being plowed over the retaining wall, which undermined the foundation. The cottage was not habitable. He applied for and was granted a Special Exception for construction in 1991 but took no action on it. In September 1992 DES granted approval to replace the septic holding tank and it was approved for operation with conditions for a two bedroom dwelling in November 1992.
In spring of 2004 he applied for another application for a special exception, which he withdrew. Since then he has contacted the Department of Environmental Services (DES) and they found the “existing dwelling to be ‘abandoned’ and the site to be a ‘nonconforming lot of record’”. They issued a determination that the “single-family home construction, as shown on the submitted plans, allows the maximum possible setback from Laurel Lake and therefore meets the criteria of RSA 483-B:10.”
Patten told the Board the foundation is so degraded that it will need to be rebuilt and he proposes altering the footprint, adding an additional 140 square feet to the footprint, and building a two story, 2 bedroom cottage. The original structure is 595 sq ft and the proposed structure would be 1,470 sq ft. They plan to live in NH in the summer and in Florida in the winter.
The Board reviewed Mr. Patten’s sketch for the proposed dwelling, letters to and from DES, septic plans and approvals, prior applications for special exceptions and meeting minutes.
Baker clarified that Mr. Patten wanted the Board to consider his proposal to build a nonconforming structure more than twice as large as the current nonconforming structure. Mr. Patten responded that he was granted a special exception in 1991 under similar circumstances, but that he had to postpone his plans due to lack of funds.
Porter asked when the dwelling was last inhabited. Patten said 1990 and noted that now nothing works and it is dangerous with the rotted foundation. Porter asked if there were any other two story homes in the neighborhood. Patten said yes. One couple whose home abuts the Patten property was present and agreed, saying that they have a two story home on one side of them that blocks their view of a portion of the lake, and that they didn’t want another on the other side.
Silverman asked if the porch in a photo of the cottage was a part of the 595 sq ft. Patten said yes. Porter asked what kind of beach they had. Patten replied stone and sand. Roberts noted that the holding tank for septic was approved in 1992. Silverman asked if it would be a year around dwelling. Patten said no, while they plan to insulate they don’t plan to live there year around. He said his estimate for construction does not allow for a fully winterized home with central heating. There will be no basement and he would need to build a deck to get to the dock and boat.
Mattson asked why he needed to increase the size of the footprint and add a second story. Patten replied that it would look like a silo if he added a second story to the existing footprint. He wants to build a new retaining wall to protect the house from snow.
Goldknopf wondered if the septic and well would need to be approved again. Patten responded no, they were approved in 1992 and never used. Mattson said Patten will need a building permit and Patten responded that he didn’t want to get one before he knew what final square footage would be allowed.
Porter asked if the property is abandoned, would the lot fall under the Shoreline Protection Act. Silverman noted that in the past, we have allowed an owner to replace what’s there. She suggested a site walk. Porter asked if it was staked. Patten responded no and said he needed an answer from the Board quickly because he would need to start construction in March. He said he didn’t think he was abusing the land and turned to ask the neighboring couple if there was anything he was doing that they didn’t like. They responded that Patten would be coming closer to their boundary line and a second story would impinge on their views.
Goldknopf asked if the Board denied the special exception, does it mean the property can never be built on. Baker said no and quoted RSA 483-B:11 I “Except as otherwise prohibited by law, nonconforming structures, erected prior to July 1, 1994, located within the protected shoreland may be repaired, renovated, or replaced in kind using modern technologies, provided the result is a functionally equivalent use. Such repair or replacement may alter the interior design or existing foundation, but no expansion of the existing footprint or outside dimensions shall be permitted.”
Patten said that if it was determined to be abandoned he would have to start over and that’s why he put in a new holding tank and well in 1992, even though he didn’t have the money. “I knew I’d never be able to build on it or use it if I didn’t.”
Goldknopf asked if the property had been surveyed. Patten said not recently. Goldknopf said it would be nice to know where the right of way is. Patten said the Town may have built the road too close but it is not so documented on any deed. When it was surveyed, prior to his inheriting the property, it showed the property extending back from the edge of the road into the lake by 13 feet.
Baker noted that the Board had a guiding document in the Shoreline Protection Act and that he didn’t feel comfortable overriding it by approving anything before the Board now.
Patten said he had submitted his application and wanted the Board to act on it tonight. Baker said the Board can rule on the evidence before it. Goldknopf read RSA 483-B:10. Porter noted that DES said Patten could build on the lot and wouldn’t need any additional waivers from them. Wittenborg clarified that the Board was dealing with a nonconforming structure on a nonconforming lot. Baker noted that nonconforming use is more restrictive if the dwelling is considered abandoned. Porter remarked that the DES letter doesn’t guide the Board’s decision making then.
Patten requested a vote on the issue tonight. Roberts asked if there was any further comment or question. The abutters said they would rather see a building there than a broken down shell, but they were concerned about what happened on the other side of them. Silverman noted that that owner overbuilt his permit.
Porter asked again if they wanted to do a site walk and Baker responded that no amount of site walks would change the need to comply with RSA 483-B:11.
Roberts asked again for final comments. She then closed the Public Hearing at 8:30 PM. The Board discussed the issue. Baker said Patten could move the footprint but not make it dimensionally larger. Wittenborg agreed with Baker. Baker wondered if the Board could even hear the appeal based on what had been presented
Mattson noted that DES had not addressed RSA 483-B:11, and thought that the Board was obligated to do so. Porter said the Board should look at all the laws and approve or not with the community in mind.
Roberts asked if the Board was ready to vote. Roberts moved, Porter seconded and the Board voted to proceed to the vote on the Special Exception appeal. The Board considered the Mandatory Findings and voted on whether the proposed use:
1. Is in harmony with the purpose and intent of this chapter – The Board voted four yes, it is in harmony and one no, it is not in harmony.
2. Will not be detrimental or injurious to the neighborhood in which it is to take place – The Board voted four yes, it will be detrimental and one no, it won’t be detrimental. Wittenborg pointed out that the scale of the new plans, a two story home with a larger footprint, would be detrimental. Baker noted that a two story home would encroach on neighbors’ view.
3. Is appropriate for the site in question – The Board voted unanimously that this proposal is not appropriate for the site. Baker noted that the Board is guided by RSA 483-B:11, citing “no expansion of the existing footprint or outside dimension should be permitted.”
4. Complies with all applicable requirements of this chapter – The Board voted unanimously that this proposal does not comply with all of the applicable requirements of the Land Use Code.
5. With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome – The Board voted that no special conditions exist that would make these requirements unduly burdensome. The Board commented that there was a provision for renovation on the existing footprint, should the owner choose to do so.
Baker moved, Porter seconded and the Board voted unanimously to deny the appeal for a Special Exception. Roberts closed the Public Hearing.
Roberts opened the Public Hearing on Case #05-02: Kenneth and Darlene Olsen, Map 36, Lot 9 request a Special Exception under Article III, Section 127-9 of the Fitzwilliam Land Use Regulations to add an apartment above the garage, which is attached to the main dwelling. Roberts asked Mrs. Olsen to tell the Board what they planned to do.
The Board reviewed the drawings, noting that the lake is 80 feet from the back of the house. Baker determined that the apartment will be 680 sq ft, well below the limit of 800 sq ft according to Section 127-9 B and that the Olsen’s are owner/occupants of the main house. Roberts asked if they planned a kitchen and a bath and Mrs. Olsen answered yes. Porter asked if there would be a separate entrance to the apartment. Answer, yes. Baker reminded the Board that whether or not rent is charged is not relevant. The relevant factors are the square footage of the apartment, that the property owner occupies either the apartment or the single-family dwelling, and that the accessory apartment is attached.
Porter asked about parking cars and Mrs. Olsen replied that there is the two car garage and others would park outside. They live on one and one-quarter acres on a private road, maintained by the residents, with only three other year-around residents. There are no nearby neighbors.
Roberts asked for other comments and Kathy Hansen, an abutter, responded in favor of the renovation to add an apartment. Roberts closed the public hearing and asked the Board if they were ready to vote. Roberts moved, Baker seconded and the Board voted to proceed to a vote on the Mandatory Findings on whether the proposed use:
1. Is in harmony with the purpose and intent of this chapter – The Board voted unanimously yes, the requested use is in harmony.
2. Will not be detrimental or injurious to the neighborhood in which it is to take place – The Board voted unanimously yes, the requested use would not be detrimental.
3. Is appropriate for the site in question – The Board voted unanimously yes, the requested use is appropriate.
4. Complies with all applicable requirements of this chapter – The Board voted unanimously yes, the requested use does comply.
5. With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome – The Board voted unanimously that this finding does not apply to the appeal in question.
Baker moved, Mattson seconded and the Board voted unanimously to grant the Special Exception. Roberts advised Mrs. Olsen that they would now need to obtain a building permit.
Roberts closed the public hearing and the Board proceeded to administrative work. The Board reviewed the minutes of the October 26, 2004 meeting, their last meeting. Porter moved, Goldknopf seconded and the Board voted to approve the minutes as written with a typo changed.
Baker asked Board members to spend some time with the Board’s Rules of Procedure, noting that he found it very helpful to refer to them during meetings. He suggested that they be read at the beginning of each meeting to keep meetings running smoothly.
The Board reviewed notices of decision from the Planning Board, conference announcements, and the 2005 revised budget.
Mattson moved, Baker seconded and the Board voted to adjourn at 9:25 PM.
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