Members Present: Jane Roberts, Jack Ernst, Steve Filipi, Coni Porter, Gretchen Wittenborg, and Sue Wood, alternate.
Others present: Mike Methe, Selectmen’s representative, and several abutters.
Meeting was called to order at 7:00 PM
Case # 07-11 Grant Foisey appeal for a Special Exception to open a dog breeding business on his 3 acre property, located at 738 Templeton Turnpike, Rural District.
Roberts congratulated Mr. Foisey on the thoroughness of his application. He presented his application adding that he plans to raise European blood line German Shepard dogs. They own one dog as a pet and have just acquired a 16 week old female puppy that will become the first of their planned four breeding dogs. They will begin breeding in spring 2009 when the dogs are OFA certified for hips and elbows. The dogs will be bred for temperament and show.
Mr. Foisey had prepared a site plan for his upcoming Planning Board hearing and distributed it for the Board. It locates his home, barn, well, septic and dog waste disposal unit on a plat. No new structures are planned; dogs will be housed in existing structures. At some point they may build a paddock so the dogs can be outdoors unsupervised for limited periods. He noted that they will use Simple Green cleaning products, which are environmentally safe. There were no abutters at this public hearing.
Hearing no further questions, the Board proceeded to vote on the Mandatory Findings for a Special Exception. They voted in the affirmative on each of the four Findings and granted the Special Exception with no conditions. The fifth item in the Findings does not apply.
Minutes: Wittenborg moved, Ernst seconded and the Board approved the minutes of the July 10, 2007 meeting as written. (Minutes were taken by Sue Wood, Board alternate.)
Case # 07-10 continued: Peter and Janet Lopilato appeal for a Use Variance under Article III, 127-9 and RSA 674:33, I. (b) and V. to convert a detached garage to an accessory apartment on property located at 432 NH Route 119 E, Map 12, Lot 36-01, Rural District.
Porter recused herself from this case, having not been present at the first hearing. Sue Wood, alternate who has attended previous hearings, was seated in her place. Wittenborg recapitulated the history of this case. The Board met with the Lopilatos twice and conducted a site walk of the property. She noted that the Land Use Ordinance does not permit more than one dwelling on a lot and there is no provision that permits the creation of a second detached dwelling on one lot. She added that Mr. Lopilato told the Board he needs the living quarters to house his daughter while she provides health caregiving for him. Wittenborg wondered why the existing permitted options won’t suffice; an accessory apartment could be added to the existing home or a room(s) inside the existing home could
be renovated to accommodate a caregiver.
Mr. Lopilato asked what was the difference between a two family house and two detached single family houses. Ernst clarified the difference a second detached dwelling versus an attached unit or a unit inside the home. One is allowed by town ordinance and the other isn’t. Mr. Methe said the accessory apartment must be attached or inside the existing building.
Filipi said a neighboring town deemed an open air breezeway with a roof connecting two buildings is sufficient to meet the definition of “attached” for Jaffrey.
Mr. Lopilato wondered about the town objective in creating the ordinance. Mr. Methe said ordinances are passed by the town and Fitzwilliam has never allowed two dwellings on one lot. Mr. Lopilato asked if that had ever been challenged, and Methe said no. Wittenborg said the town has a 3 acre minimum lot size in the rural district to limit density.
Mr. Methe noted that the ordinance has provisions for enabling two families to live in one dwelling and that Mr. Lopilato has to decide whether or not to exercise those options.
Wood wondered if a typical accessory apartment, attached to or inside a dwelling, would have to be dismantled after use. It wouldn’t. Wittenborg said the Board could only grant a use variance for a detached second dwelling is if the second dwelling is dismantled after there is no longer a need for caregiving for Mr. Lopilato.
Mr. Lopilato said he might just withdraw his application without prejudice. Mrs. Lopilato asked if they went ahead and renovated the garage would they have to dismantle it after Mr. Lopilato was dead; could they do it if there was a full roof from the garage to the house connecting the two dwellings. She added it seems such a waste to renovate the garage and then destroy it after Mr. Lopilato dies. Wittenborg said the Board can only act on applications before them and they would need a plan to consider. Mr. Lopilato said he loves Fitzwilliam and doesn’t want to move, but will since he can’t do what he needs to do here.
Roberts thought a 20 foot breezeway to a garage was too long to be called an attachment. Staff will research the legal definition of attached. Wittenborg said that if Mr. Lopilato wants to amend the application, to include construction plans and dimensions, the Board could consider it. She added, and the Board concurred, that they would need very specific construction plans indicating how the garage would become an attached dwelling unit.
Roberts stated that the Board has two options at this point; to nix the whole thing or to consider specific plans to attach the garage. Mr. Lopilato said the Board had talked about silly things in the past, like attaching it with a 2X4; adding that he could go to a lot of trouble and the Board may still not like the plan. Ernst said they didn’t need interior details but did need details about the exterior and the attachment.
Filipi asked what constituted attachment. Methe said he recalled an RSA that may address the matter and will get it for Mr. Lopilato and the Board. Filipi made some construction suggestions, such as a heated hallway, new entrance, etc.
Mr. Lopilato then said that the town has been assessing the garage as though it was a 24x26 structure when in fact it is a 24x24 foot structure. Methe suggested he make the changes with the town office.
Wittenborg moved, Ernst seconded and the Board voted to continue the public hearing to September 11, 2007 at 7:30 PM. They asked Mr. Lopilato to provide them with a detailed plan for the construction of the attachment. Mr. Lopilato apologized for using a loud voice.
Case # 07-12 Fitzwilliam Green LLC appeal for a Special Exception under Land Use Ordinance 127-9 C. and 127-11 B. to convert a single family home to a duplex and business office on property located at 90 Jaffrey Road, Map 15, Lot 52, Rural district.
Wittenborg recused herself. Wood was seated for Wittenborg. Porter rejoined the Board.
Wittenborg noted that she had done some title work for Mr. Green and she believes facts of the case indicate that the dwelling has existed as a duplex since 1964-65 when it was first built, predating zoning in Fitzwilliam. Mr. Green has a photo of the unit when it was finished. It has a separate septic system. Wittenborg feels it is a preexisting grandfathered use as a two family dwelling, and that it doesn’t qualify as an accessory apartment. Methe recalled that a caretaker lived in the apartment at one time.
Mr. Green clarified his intention. He said they would like to rent both units in the dwelling for the income to continue developing and preserving the property as a farm. He said that the Hancock’s, the previous owners, used the whole house as though it were a single family dwelling. It was not identified as a two family home or an accessory apartment on the town tax card.
There was much discussion about its current status.
Ann Killeen, abutter, said the hearing was noticed as a conversion to a duplex and she is concerned about maintaining the rural character of the area. She wondered what would change if it is deemed to be a duplex. Mr. Green assured her nothing would change; it will look exactly the same. They want to rent the two units separately and use the center room, dividing the two dwelling units, as a business office. Ms. Killeen wondered what that use could lead to.
Mr. Green said their intentions are to conserve/preserve the land and to take some time to sort out how best to achieve that goal. In the meantime they need an income to support that work.
Wittenborg said Mr. Hancock was running a real estate business from the home at one time. Ms. Killeen said it was a very unobtrusive business; there was no extra traffic and she didn’t even realize it was being used as a business or a two family home. Mr. Green said they will use it to manage the property and grow flowers.
Ernst wondered if the business was grandfathered as well. Methe wondered if a use not exercised in a calendar year would be considered abandoned.
Ms. Killeen wondered if a future owner could turn the whole house, or barn, into businesses if the use was grandfathered. Methe said no, the barn has no relation to the house in terms of use. He added that anyone can come before the ZBA with a plan to change a use.
Mr. Green said the business is a desk and some papers; there will be no increase in traffic. He added that he has a six year track record in town for preserving rural character and pointed to the mixed use structure he has renovated for use in the Village.
There was more discussion about the status of the house as having an accessory apartment or as a duplex. Mr. Green said he didn’t want to permanently designate the house as a duplex; he just wants to rent out both sections until it is sold.
Ernst moved, Filipi seconded and the Board voted to remand the case to the Board of Selectmen for clarification of its status as a grandfathered dwelling with an accessory apartment or as grandfathered two family dwelling.
Moving on to the request for a special exception for a business office in the structure, there was discussion about its status as a grandfathered home business or occupation or as a business office. Wood asked if the Board could grant a special exception for a temporary use until the property is sold and when it is, the use can revert to a home office. Methe said the Board could so stipulate.
Filipi moved, Porter seconded a motion to vote on the mandatory findings for a special exception under 127-11 B. The Board unanimously agreed the findings were met. Wood moved, Ernst seconded and the Board voted to grant a special exception under 127-11 B for a business office until such time as the structure is sold, when the use will revert to a home office.
Ernst moved, Porter seconded and the Board voted to adjourn the meeting at 8:50 PM.
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