Members Present: Jane Roberts, Gretchen Wittenborg, Cathy Davis and Steve Filipi
Others present: Tom Parker, Selectmen’s representative
Meeting was called to order at 7:05 PM
Case # 08-03: Mason Klinck appeal for a Use Variance under Article III, Section 127-9 to construct a second dwelling on his property located at 139 NH Route 119 West, Map 31, Lot 12, Historic and Residential Districts.
Roberts read the case and the Fitzwilliam definition of ‘dwelling unit.’ She noted that Section 127-9 of the Land Use Code states that ‘no more than one building for dwelling purposes shall be located on a lot.’ She asked Mr. Klinck why he demolished the structure in question.
Mr. Klinck stated that he didn’t demolish the structure, but disassembled it 3-4 months ago for the purpose of repair, planning to strengthen the infrastructure and reassemble it. He did not know when the structure was last lived in, but said his contractor estimated the building to be 200 years old. Mr. Klinck has a photograph of the structure taken before it was disassembled.
He described himself as a preservationist, and has restored several 18th century buildings. He is in the process of restoring the main house and outbuildings on his property in Fitzwilliam. He believes the structure in question was once a tenant farmer house. It had a rudimentary bathroom and kitchen with only a cast iron sink. Neither had plumbing.
When he applied for a building permit, which he did not think was necessary, he was told that if the structure had a modern kitchen and bath, a use variance was necessary to have a second dwelling on the property. He plans to reassemble the structure exactly as it was, with the exception of modern plumbing, which will not be hooked up for use at this time. He will use the same siding, windows and doors but will use new roof shingles and paint.
Davis asked what his plan was for future use of the building, since the original building did not have modern kitchen and bath. Mr. Klinck responded that his contractor had suggested putting in the kitchen and bath as the structure was being rebuilt to save money in the future and he agreed it made economic sense to do so. Mr. Klinck said he has no plans to use the structure as a dwelling but said an heir or new owner may want to in the future.
Hazel Quick, an abutter, did not have any questions. Mr. Hurst, abutter, asked where the original structure was located and was shown the diagram. He recognized it and said he’d been in the building in the past. He asked if it would be restored to the same dimensions. It will be, according to Mr. Klinck.
Wittenborg said she had been in the building several times. She believes it was built in the late 1800s. Mr. Klinck said his attorney couldn’t find any record of the structure being built and a recent owner he talked with did not know the history of the structure either.
Filipi noted that the issue was not about the age of the building but about its being a second dwelling unit on the lot. He added he thought that if the structure was reassembled as it was, without the bath and kitchen, Mr. Klinck would only need to meet with the Historic District Commission. [The Historic District Commission approved his application for the exterior of the building in April 2008.]
Tom Parker, speaking for the Selectmen, said they oppose a second dwelling on the property. They told Mr. Klinck that as soon as he proposed a modern bath and kitchen he would need a septic design, a use variance from the ZBA and approval from the Historic District Commission. He added they have no problem with his restoring the structure as is with a non-operational two-hole bathroom and cast iron sink as long as it is not set up as a dwelling.
Wittenborg said she wanted Mr. Klinck to understand that the Board represented the zoning ordinance and the appeal had to meet certain mandatory findings to be granted.
Hearing no further discussion, Filipi moved, Wittenborg seconded and the Board voted to close the public hearing and deliberate on the findings.
Section 127-42 E. Mandatory Findings for Use Variances:
(1) There would not be a diminution in value of surrounding properties as a result of granting this variance.
Unanimous agreement that this was an existing structure and it’s restoration would not negatively impact the surrounding property values,
(2) The granting of this variance would not be contrary to the public interest.
Filipi agreed with the finding saying that zoning allowed single family homes with apartments, two family homes and multi family homes on one lot. Wittenborg, Roberts and Davis disagreed, saying that the master plan, zoning ordinance and resident surveys all affirm a policy of controlling density by requiring one dwelling per lot and therefore express the public interest.
(3)(a) The zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property within its environment.
Unanimous disagreement, saying that the setting is not unique in Fitzwilliam. Filipi noted that a very long time has passed since the structure was last used as a dwelling without interfering with the reasonable use of the land, adding that the main house and property have been occupied during that time.
(3)(b) There is not a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property.
Unanimous disagreement, stating that the relevant zoning has a fair and substantial relationship between the general purpose of the ordinance and the specific restriction on the property. Wittenborg said the ordinance has been in effect for more than 20 years and it expresses the wishes of the residents as applied to this property.
(3)(c) The variance would not injure the public or private rights of others.
Davis and Filipi agreed. Wittenborg and Roberts disagreed, saying zoning must be upheld unless there are unique circumstances.
(4) By granting this variance substantial justice would be done.
Unanimous agreement with Filipi when he stated he felt the zoning was just in this case.
(5) The use contemplated by the applicant as a result of obtaining this variance would not be contrary to the spirit of the ordinance.
Unanimous disagreement, saying that the use contemplated would directly contravene the spirit of the ordinance.
Filipi moved and Wittenborg seconded a motion to approve the variance. The Board unanimously voted nay, denying the variance based on the findings.
Case #08-04: Robert and Joan Wolfe appeal for a Special Exception under Article III, Section 127-9 C to designate their house with an accessory apartment, a two family dwelling, located at 79 Old Troy Road, Map 9, Lot 11-01, Rural District.
Filipi recused himself saying he built the house in 1999-2000. Roberts informed Mrs. Wolfe that now there were only three members of the Board to hear her case and that a unanimous decision was necessary to approve her appeal. She asked if Mrs. Wolfe wanted to proceed or if she wanted to postpone the hearing until a full Board was present. She asked if she could request a rehearing if the decision went against her and all agreed that she could.
Filipi confirmed, at Roberts request, that the house he built did have an accessory apartment in it when it was built. Apparently a building permit was mistakenly issued by the town without a special exception for the accessory apartment, which in fact exceeded the 800 square foot limitation required.
Mrs. Wolfe explained that she and her husband requested a special exception to designate the house a duplex rather than a house with accessory apartment. After living in the house for five years, they moved out last year to take care of family in Keene. The town requires owner occupancy of one unit in a single family home with accessory apartment. Presently the house is rented by two different families. She said it came to her attention in February 2008 that they were out of compliance with town regulations by not living in the house themselves.
Tom Parker said the Selectmen are not opposed to the special exception requested. Nothing will change in the house other than its status and as a duplex it would be in compliance with the ordinance. Wittenborg noted that the house has not conformed since inception and the apartment exceeds the allowable square footage.
It was noted that the appeal is for a Special Exception under 127-9 C. and there are no limits for square footage or requirements for owner occupancy.
Wittenborg wondered if the special exception should be conditioned on the Wolfe’s continued ownership. She noted there are no two family homes in the neighborhood. Davis wondered what happens if the Wolfe’s sell the home. Filipi noted that the home was designed as two completely separate dwelling units, with no connection whatsoever and couldn’t be converted to a single family home with apartment. Wittenborg asked if the Board wanted to permanently make it a two family home.
Parker said he had no problem with its being a two family home. Mrs. Wolfe noted that no abutters were objecting. Filipi said that under town zoning, special exceptions are allowed once an evaluation of the specific situation by the zoning board has taken place.
Mrs. Wolfe said they hope to return to their home in Fitzwilliam but don’t know when. Davis said it is a duplex whether it was intended to be one or not, and it makes sense now.
Wittenborg moved, Davis seconded and the Board voted unanimously to grant the special exception without conditions.
Administrative: The minutes of the May 13, 2008 meeting were not available for signing, so it was postponed to the next meeting. Roberts noted that the Board needs at least one other alternate member. Parker said the Selectmen were open to suggestions.
The meeting was adjourned at 8:30 PM.
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