Members Present: Jane Roberts, Chairman, Gretchen Wittenborg, Ashley Fletcher, Coni Porter, and Dan Baker, alternate.
Meeting was called to order at 7:30 PM.
Case #05-24 continued: Joslyn Christian requests an Equitable Waiver of Dimensional Requirements for shed located within front setback at Hayseed Hattie’s Antiques on Route 12 South, Map 34, Lot 26 General Business District.
The hearing had been continued so Ms. Christian could accurately measure the front setback, from the center of Route 12 to the shed. ~Ms. Christian told the Board it was 69.5 feet from the center of the road to the front corner of the shed, encroaching on the required front setback by 30.5 feet. ~The builder estimated it would cost $500 to move it, however, there is no other place on the property for it to go. ~A stone wall is directly behind the shed, and the leach field is between the house and the shed.
Fletcher noted that he drove by the property and thought it was much improved by the addition of the shed. Porter said the shed was the only structure on Route 12 that was that close to the road. ~It is back 19.5 feet beyond the state right of way of 50 feet.
Hearing no other questions, Fletcher moved, Porter seconded and the Board agreed they were ready to vote. ~Roberts proceeded to read the criteria for granting an Equitable Waiver of Dimensional Requirements and the Board voted affirmatively on each one.
Porter moved, Fletcher seconded and the Board voted to grant the Equitable Waiver of Dimensional Requirements. ~A notice of decision will be sent to appropriate parties.
New Members: ~The Board reviewed questionnaires completed by candidates for positions on the Board of Adjustment. ~Five candidates were approached and one declined at this time. ~Names of four candidates will be forwarded to the Selectmen for appointment as alternates or full members. ~They are Steve Filipi, Michael Robie, Dianne Schott, and Susan Silverman.
The Board agreed that the one position vacant on the Board should be filled immediately with a candidate who is qualified and can come up to speed immediately. ~Porter expressed her opinion that the Board needed to build up the pool of alternates so if other vacancies occurred there would be people ready to serve. Their recommendations will be communicated to the Selectmen.
Case #05-26: Jean Camden requests an Area Variance to encroach on the front setback in replacing a nonconforming garage located at 47 Templeton Turnpike, Map 11, Lot 43, Residential District.
The Board reviewed the application for an Area Variance and Roberts clarified that the new carriage house will be built on the footprint of the existing shed to the extent possible. ~Ms. Camden agreed. ~Roberts asked if the structure behind the existing garage would remain and Ms. Camden said yes.
Fletcher noted what an improvement it will be to have a new carriage house in that spot. ~Ms. Camden agreed that the current garage is falling down. ~Baker asked if the new structure would be any closer to the road and Ms. Camden said no. ~The new structure is three feet longer and three feet wider than the existing garage and the garage opening will be facing the house rather than the street.
Hearing no further questions, Fletcher moved, Porter seconded and the Board agreed they were ready to vote.
Roberts proceeded to read the criteria for an Area Variance and the Board voted to grant the Area Variance.~ A notice of decision will be sent to appropriate parties.
The Board agreed that:
1. There would not be a diminution in the value of surrounding properties as a result of granting this variance because the property will be enhanced by the new structure.
2. Granting the variance would not be contrary to the public interest because the neighborhood will be improved.
3a. An area variance is necessary in order to allow the applicant to use the property as proposed because of the following special conditions of the property: 1) the carriage house will replace an existing nonconforming garage in the same footprint, and 2) there is no other place to build that would be convenient to the house.
3b. The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden because there is no room to build elsewhere. The Board agreed that it is the best use of the property.
4. By granting this variance substantial justice would be done because the dimensional variance requested is necessary to the effective use of the land.
5. The use contemplated by the petitioner as a result of obtaining this variance would not be contrary to the spirit of the ordinance.
Approval is conditional, based on the carriage house being built no closer to the road than the existing garage.
Minutes: ~The Board reviewed minutes of the October 11, 2005 meeting. ~Wittenborg moved, Fletcher seconded and the Board approved the minutes as written.
Rules of Procedure: ~The Rules, having been read at two consecutive meetings, are ready to be adopted. Fletcher moved, Baker seconded and the Board voted to adopt the Rules of Procedure as amended.
Election: ~With the resignation of Ed Mattson, the Vice Chair position is open. ~Porter nominated Ashley Fletcher who declined “at least this year.” ~Porter then nominated Wittenborg who agreed to serve. ~Fletcher moved, Porter seconded and the Board elected Wittenborg to serve as Vice Chairman.
8:15 p.m. Case #05-27: Richard Dwinell appeal of the Administrative Decision of the Board of Selectmen to allow the proposed use of property located at 646 Route 12 South, known as Bloomin’ Antiques, for a convenience store, Map 8, Lot 13, Rural District.
Roberts read a summary of information pertaining to this case offered by legal counsel with the Local Government Center. ~Three points were made: 1) when meeting with a client in a preliminary consultation the Planning Board cannot make binding decisions; 2) Non-binding decisions are not appealable; and 3) the Selectmen do not sit as an appeal board.
Roberts asked the Board if the Planning Board had made a binding decision. ~Wittenborg, referring to minutes of the preliminary consultation between Mr. Patel and the Planning Board on July 19, 2005, noted that the Planning Board voted to “refer” Mr. Patel to the ZBA for a Special Exception. She said a referral is not a binding decision and Mr. Patel was free to ignore the “referral.” ~Baker remarked that there could be no appeal because there was no decision made, adding he would like to hear from the petitioner.
Roberts invited the petitioner to speak and his attorney, Silas Little, spoke for him. ~Mr. Little referred to RSA 676:5 III, interpreting the word “may” in that context as meaning the Board is authorized to make a decision during a preliminary consultation. ~He added that if Mr. Patel had disagreed with the decision he could have appealed it, but didn’t.
Baker pointed out that this interpretation is contradictory to RSA 674:4 which states that in preliminary consultations neither the applicant nor the Board is bound by anything that is said. They are advisory opportunities only.
Mr. Little rebutted that a fair reading of the minutes shows the Planning Board moved, seconded and voted, which constitutes a decision. Baker thought that the preliminary consultation is like an interview process, where a decision is not necessarily expected. Wittenborg said Mr. Little was over-reading the statute.
Mr. Little noted that if one reviews the nature of the planning board process and takes into consideration expenditures the applicant must make to complete a site plan review, one sees that the Planning Board was trying to save the applicant money by sending him for a special
exception, knowing he would need it before they could approve a site plan. ~He read the minutes again and emphasized that Chairman Silverman had told Mr. Patel he must return to the Planning Board after he had received the special exception. ~He argued that the word ‘refer’ has a stronger meaning when used administratively, as in this case; it means that the referring Board cannot make a final decision before another Board makes its decision.
Mr. J.R. Davis, attorney for Mr. Patel, distributed several documents that are a part of these minutes. ~He began to review the history of the case when Wittenborg asked if the Board wasn’t getting ahead of itself. ~She pointed out that the Board was not discussing the substance of the case, but needed to focus on the appeal before it, which was based on procedural grounds. ~Roberts noted the Board has already reviewed some of the material distributed.
Mr. Davis said it was their position that the Planning Board did not make a binding decision. Referring to a September 26, 2005 letter he sent to the Selectmen, he noted that no where does it mention an appeal, but instead asks for an ‘administrative determination’ on the need for a special exception, given the history of the property as grandfathered for retail use. He said a board of selectmen acts to interpret and enforce zoning ordinances and the ZBA only interprets when an appeal is made. He said the Fitzwilliam Selectmen agreed with him that a special exception was not needed, and called attention to several court decisions he says uphold this analysis.
Mr. Davis said Mr. Patel could not appeal the Planning Board ‘decision’ because the Planning Board could not, and therefore did not, make a binding decision in the preliminary consultation. ~Following his client’s appeal for a special exception, and subsequent public hearing before the ZBA, which was continued, he and his client decided that a special exception was not needed after all. They believe the Planning Board erroneously referred Mr. Patel to the ZBA for a special exception. ~Regarding Mr. Little’s argument, and referring to the first two paragraphs of RSA 676:5, he pointed out that the Planning Board was not acting as an administrative officer for the purposes of the statute, since there was no formal application for a site plan review, no public hearing and no written decision.
~That being the case, he said he thought the Dwinell appeal before the board tonight should be denied.
Roberts asked if the Board wanted to close the hearing to discuss the appeal. ~Mr. Jonathan Mattson, an abutter, asked to speak. ~He asked about the meaning of ‘grandfathered.’ Roberts reminded him that the Board was not discussing the merits of the case at this time.
Sandy Coburn, another abutter, asked how the property could be grandfathered as retail. Wittenborg reiterated that the Board could not hear that argument at this point. ~Baker noted that if the appeal tonight is denied, the Board may not hear the case again at all. ~He
said the Board was trying to decide if the Selectmen had the authority to make a decision on the merits of the case.
Mr. Niemala, an abutter, asked when residents could be heard. ~Baker said if the remarks were relevant to the appeal they could be heard now, but if they were on the merits of the case, residents would have to speak with the Selectmen, since they made the decision on the merits. ~The Board agreed.
Attorney Davis noted that if the appeal is denied tonight, his client Mr. Patel will still have to go the Planning Board for a site plan review, which will be conducted at a public hearing in the future.
Porter suggested that tonight’s hearing be continued so the Board can review all the material presented to them tonight, some of which is new. ~Baker noted he wanted to hear more from the abutters pertaining to this appeal. ~Roberts summarized the issues as 1) did the planning board make a binding decision and 2) did the Selectmen have jurisdiction.
Gary Taylor, current owner of the property in question, asked for an expedited hearing. ~He said that since ‘rumors are flying’ that his antique store is being sold dealers are moving out of his building and he is losing money.
Fletcher moved, Wittenborg seconded and the Board voted to continue the public hearing on this appeal to a special meeting of the Board of Adjustment on Tuesday, November 22, 2005 at 7 PM.
The Board adjourned at 9:20 PM.
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