Zoning Board of Adjustment
Meeting Minutes
January 11, 2011
Members Present: Steve Filipi, Jane Roberts, Gretchen Wittenborg, Jack Ernst and Cathy Davis
Others Present: Carmen Yon, alternate, Tom Parker, Selectmen’s representative
CTO: 7:00 PM.
Minutes. The Board reviewed the minutes of the November 18, 2010 meeting. Ernst moved, Wittenborg seconded and the Board approved the minutes as written.
7:00 PM Public hearing: Craig and Michele Alley application for a variance, under Article III, Section 127-9, Residential Uses, to install a bathroom in an outbuilding on property located at 314 Richmond Road, Map 10, Lot 79-3, Rural District.
Cathy Davis recused herself and Carmen Yon, alternate, was seated.
Filipi asked Mr. Alley to give a brief overview of the proposal, and complimented him on the quality of the application. Mr. Alley said they want to install a bathroom in the shed, which was used by the former owner as a commercial enterprise. He said it already has electric service and heat. They’d like to use it as a potential guest room or game room. It will require a separate septic system. He said he recognized that there is a fear that it will become a second dwelling, but he assured the Board it would be a stretch to make it a second dwelling since it is completely dependent on the main house.
Filipi asked abutters if they had any comments. Mr. and Mrs. Bessette said they had no problem with the proposal. Mrs. Bessette said she thought there was a bathroom in it already because it was a store. Mr. Bessette said they had watched the work the Alley’s had done on the property since they moved in and it is very profession and he assumes this installation would be done the same way.
Filipi asked Parker if the Selectmen had denied a building permit for this work. Parker said the Selectmen refused the building permit because issuing one directly violates the town ordinance. He asked the Board to uphold the Selectmen’s decision.
Mr. Alley asked which town ordinance it violates. Parker specified section 127-9 of the Land Use Ordinance. He said it eliminates the possibility of a second dwelling of any kind on a single lot. He said the Selectmen felt that if this was allowed the building could be used as a second dwelling in the future. He added the town has some very small buildings used as residences.
He was asked about the Walters property with the guest cottage. He said the guest cottage was on a separate lot from the main house.
Mr. Alley said the sheer size of the shed prohibited a second independent dwelling, and further that any future development would require a building permit and perhaps permits from this or other bodies.
Parker said the existence of water and septic indicates it is potentially useable in the future as a second dwelling, adding that the Selectmen do not necessarily support all town ordinances but they were proposed by the planning board and voted in by the town.
Mr. Bessette asked if a toilet would be allowed in a barn or other out building? Parker said it wouldn’t be allowed and referred to another property in town with similar issues where the building permit was denied until the property was subdivided. He said that septic systems will not be approved by the state until they are signed by the Selectmen.
Mr. Alley reiterated that this shed is not capable of sustaining independent living, and that it is not their intent to make it a second dwelling. He added that any future development would have to go through a permitting process.
Filipi questioned whether 127-9 F could be used to determine the existence of a second dwelling. Roberts referred to the definition of “dwelling” in the town ordinances (127-3). She said that by the definition this proposal does not qualify as a second dwelling. She added that you can have a bathroom anywhere; it doesn’t mean it will morph into a dwelling unit, even though this may have happened in the past. Filipi wondered if having a bathroom constituted a dwelling.
Wittenborg said that under the plain language and clean meaning of the definition, this proposal would not be considered a dwelling. She feels that if the ZBA were to deny this on the basis of a potential future use, it may be overturned in court. She said the Board cannot legislate a potential future use. She suggested changing the ordinance to say having a bathroom constitutes a dwelling if that’s what’s meant. Filipi said there are many places in town with a toilet in an outbuilding without the intention of it’s being a second dwelling. Wittenborg said that it is more common in difficult economic times for people to convert internal rooms to serve as a second dwelling.
Filipi noted that the case referred to earlier regarding a cottage with a bathroom, the owner of the property also wanted a kitchen. He wondered if this proposal really needed a variance. Roberts said she did not think this proposal needed a variance. Yon agreed that the application is in no way a violation of the ordinance.
The Board reviewed RSA 674:33, paragraph II, and drafted a motion to reflect their authority in this case. The final motion, made by Yon, seconded by Ernst, reads “We the Board of Adjustment find the application as presented by Mr. and Mrs. Alley does not violate section 127-9 of the Town of Fitzwilliam’s Land Use Ordinance, and therefore no variance is required. The application does not meet the definition of a dwelling unit in 127-3 because no independent cooking facilities are proposed. Therefore, under RSA 647:33, paragraph II, the Board finds that a building permit shall be issued for this proposal.” The Board voted unanimously in favor of the motion.
Yon asked if the Board of Adjustment could sign the building permit. Filipi said the Selectmen issue building permits. Wittenborg said the Board of Adjustment’s authority under RSA 674:33 II preempts the authority of the Board of Selectmen and the Selectmen can appeal the decision and ask the Board to rehear the case if they choose.
There was further discussion about how to resolve these types of issues. Eventually the Board thought they would try to draft an ordinance clarifying what is meant by “single dwelling.” Wittenborg reiterated that she felt no court would enforce a decision involving the denial of a potential future use. Roberts said one can go only so far in predicting what people will do. Filipi asked if Parker could ask the Selectmen to read the definition of “dwelling” in 127-3, and ask if they thought a court would concur with a decision to deny a potential future use.
Roberts read a statement into the minutes to correct a statement made in a letter to the ZBA from the Selectmen. Roberts moved, Yon seconded and the Board voted to enter the statement which follows: “It has been the practice of the Board of Adjustment over the last eight years or so to ask an alternate to the Board to take the minutes of the meeting when the Land Use Assistant is absent. For the last several years it has generally been Sue Wood who has taken the minutes.”
The appointments of Cathy Davis and Jack Ernst expire in March 2011. At this time both members would like to be reappointed.
Staff noted that new state legislation allows alternates to sit at the table with Board members and join in the discussion, however they may not vote.
The Board read and approved the draft of the Town Report for 2010.
The Board adjourned at 8:20 PM.
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