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Zoning Board of Adjustment Minutes 02/27/07

February 27, 2007 meeting

Members & Staff Present:

Doug Crafts
John Giffin     
Bradley Houseworth
John Kendall
Len Pagano (recused)
Frank Scales
Paul Vasques
Don Winchester
Paul Young

Member & Staff Absent:
        Carol Court    
Public Attendees:

Mary Allen (Planning Board)
Peter Beblowski (Conservation Commission)
Jeff Burd (Torino Development Co.)
Diane Chauncey (Abutter)
Mike Genest (Selectman)
Colleen Giffin (Citizen)
Karen O’Rourke (Brown Engineering)
Bob Pace Jr. (Torino Development Co.)
Benjamin Pratt (Selectman)
Bill Prokop (Town Administrator)
Jeff Waldrop (Monadnock Transcript Ledger)

Chairman Winchester convened the meeting at 7:30 PM by introducing himself, the members of the Board, and outlining the procedure to be followed for the public hearing of Torino Development Company’s request for an area variance.  Mr. Pagano recused himself from the Board as a member but provided comments as a legal abutter.  Chairman Winchester appointed Mr. Crafts to sit for the recused Mr. Pagano.

Torino Development Company, LLC; File # 2007-01ZBA:  Chairman Winchester opened the public meeting on the request of Torino Development Company, LLC for an area variance to Article X – Steep Slopes District, Section E and Article XI – Wetlands District, Section F of the Town of Antrim Zoning Ordinances. The applicant proposes to subdivide property on the west side of Route 202, north of Old Milk Road, in Antrim, NH, Tax map 7, Lot 102-1 in the Highway Business District, into a cluster housing development and requests a variance to the minimum lot size requirements of the above mentioned overlay zoning districts. Chairman Winchester asked the applicants to stand and present their proposal to the Board.

Ms. O’Rourke introduced herself, stated she is from Brown Engineering and was representing Torino Development Company, LLC, and presented the nine-lot, 12 dwelling unit residential cluster housing development plan.  She stated that they are requesting an area variance to the Steep Slopes and Wetlands Overlay Zoning Districts’ minimum lot size requirements due to their conflict with the Cluster Housing Ordinance.  She explained that due to the unique topography, steep slopes, and scattered wetlands of this property, it lends itself to a cluster housing development approach.  She stated that their original yield plan was for eighteen (18) lots but due to the expansive network of wetlands present on the property and the road frontage requirements for each lot, only twelve (12) lots could be created which meet the Highway Business District lot requirements for a conventional subdivision design.  She explained that due to the extensive and lengthy road necessary for the conventional subdivision design, the necessary wetland impacts and filling for the road and lots (more than double for a conventional design versus a cluster housing design), and the reduction of open space or common land left on the property, the applicants decided to go with a cluster housing design approach because it made more sense for this particular property.  

Ms. O’Rourke explained that going with a cluster housing design approach was a good solution for this property because it leaves a substantial amount of land, approximately forty nine (49) acres, to be left as open space and common land for the community.  She stated that she has spoken with Mr. Peter Beblowski from the Antrim Conservation Commission and the Monadnock Conservancy has expressed interest in the possibility of establishing a conservation easement on the forty nine (49) acres of open space.

Ms. O’Rourke explained that they proposed the same cluster housing subdivision plan to the Planning Board on January 4, 2007 upon which it was determined that the applicant would first have to apply to the Zoning Board of Adjustment for an area variance because the proposed cluster housing subdivision lots do not meet the minimum lot size requirements of the Steep Slopes and Wetlands Overlay Zoning Districts.  Ms. O’Rourke stated that this is why they are in front of the Board and read aloud their explanations of how the five (5) criteria for the granting of the area variance have been met for this particular proposal; as presented on the area variance application on file at Town Hall.

Chairman Winchester told Ms. O’Rourke that it was his understanding that the Planning Board had previously requested a cluster housing subdivision design which met the minimum lot size requirements of the Steep Slopes and Wetlands Overlay Zoning Districts for this property but that this request went without results.  She replied that they did prepare a plan with a cluster housing subdivision design that met the overlay districts’ requirements and that the lot yield was nine (9), single-family lots but they decided to go with the nine-lot, twelve (12) dwelling units cluster housing design approach instead, which incorporated smaller lot sizes, six (6) single-family lots, and three (3) duplex lots.  Mr. Young asked Ms. O’Rourke if it is necessary to have three (3) duplex lots as part of the cluster housing subdivision proposal in order to obtain twelve (12) dwelling units, she responded that it ultimately is dependant on the lot sizes that are determined by the Planning Board to be adequate and that they could propose three (3) additional lots but that these lots would sprawl along the west side of the property (and include more of the 100 ft. ‘No-Cut’ Conservation Easement), extend the road, involve more disruption of the wetlands, and reduce the acreage of open space left for the community.  She explained that the cluster housing subdivision design plan in front of the Board includes what they feel are reasonably sized lots which are adequate to sustain single-family homes and/ or duplexes, and furthermore, these lots more than exceed the State requirements for cluster lots with individual septic systems and water supply wells.  
Mr. Young questioned Ms. O’Rourke why the three (3) duplex lots were proposed along the western boundary of the lot where the 100 ft. ‘No-Cut’ Conservation Easement exists?  She explained that the layout just happened to work that way because their primary guideline for determining lot sizes was to create cluster lots that were approximately fifty (50%) percent the size of what is normally required in the Highway Business District; in other words at least 45,000 square feet for single-family lots and 65,000 square feet for duplex lots.

Chairman Winchester asked the Board if there were any other questions for the applicant.  
Mr. Kendall stated that the minimum lot size requirements of the Steep Slopes and Wetlands Overlay Zoning Districts are approximately twenty five (25%) percent smaller than what is normally allowed for conventional lots in the Highway Business District.  He asked Ms. O’Rourke why they feel that this twenty five (25%) percent reduction is not acceptable and why they are proposing cluster housing lots that reduced an additional twenty five (25%), in other words, what is the hardship?  She replied that due to the presence of scattered wetlands and their expansive network on the property, it was necessary to make the lots smaller in order to minimize the impacts on the wetlands, provide more open space, and have sufficient contiguous upland for each cluster lot to support an individual septic system.  She stated that in a true cluster housing subdivision development, the lot sizes could potentially be smaller than those lot sizes required by the overlay districts, when no wetlands or steep slopes are present.  She stated that the hardship is the unique circumstances of the property and the large presence of scattered wetlands and steep slopes that restrict development.  She stated that if they created larger lots that adhered to the minimum lot size requirements of the overlay zoning districts, then they would end up disturbing, filling, and crossing a significant larger amount of wetlands and steep slopes.  

Mr. Kendall replied that he disagreed and stated that the smaller lot sizes proposed by the applicants will be more detrimental and impact more of the smaller wetland pockets that exist on the individual cluster housing lots due to the reduced amount of square footage to site a septic system, well, driveway, house, and any other additional structures or accessory uses.  She stated that if the cluster housing lots are increased in size, then the road would need to be extended, and there would be a greater number of wetlands disturbed as well as an increase in wetland crossings and fill.  She added that one of the main criteria of NH DES when they determine whether to issue a State Wetlands Standard Dredge and Fill Application is if the proposed wetlands impacts have been minimized as best as possible, if the wetland crossings are placed in an area to minimize impact, and if other alternatives to avoid or minimize the projects impact on the existing wetlands have been pursued.  Chairman Winchester stated that the question may be more if the project has to include twelve (12) units and could the development have a few less lots and meet the requirements of the overlay zoning districts.  She replied that twelve (12) units for sixty seven (67) acres is a very small number to what could normally be developed on a similarly sized lot with different conditions and there original yield plan for the lot was for eighteen (18) lots so they have already proposed less lots than the property could theoretically yield.  She added that if they were to adhere to the lot requirements of the overlay zoning districts then there probably would be nine (9) single-family lots that would obviously involve more disturbances to wetlands due to a longer road to access the larger sized lots.

Chairman Winchester closed the public meeting, opened the public hearing, and asked if anyone were present that would like to speak in favor of the proposal; there were none.  He then asked if anyone was present that would like to speak against the proposal.  

Mr. Pagano replied yes, introduced himself, and reiterated that he is a member of the Zoning Board of Adjustment and has recused himself but wants to provide comments about the proposal as a legal abutter on two sides of the property in question.  He stated that he is completely opposed to an area variance to the Steep Slopes and Wetlands Overlay Zoning Districts for this particular property and, as an abutter, would like to see the minimum lot size requirements of the overlay zoning districts be upheld by the Board in order to protect his family’s concerns and interests.  Mr. Pagano presented an enlargement of the applicants’ plan, essentially focused on the smallest proposed lot of the cluster housing subdivision, Lot 102-1-6, which is approximately 47, 879 square feet or 1.10 acres and, of which, approximately fifty (50%) percent or more of the lot is within the 100 ft. ‘No-Cut’ Conservation Easement, along the western edge of the tract.  Mr. Pagano explained that he colored in the various areas of the lot including: the house, the driveway, the conservation easement, and the four thousand (4,000) square foot septic/ disposal area, and what is left over is a postage stamp parcel with very little available area.  He explained that he was the one responsible for the subdivision, the creation of the lot, and the establishment of the 100 ft. ‘No-Cut’ Conservation Easement.  He stated that the conservation easement was specifically established to prohibit disturbance of any kind; for example, no tree cutting extraction, or cutting of the vegetative understory is allowed nor is any road construction or signage allowed within the easement area.  

Mr. Pagano stated that as a professional architect he questions how a house could be built on the edge of a 100 ft. ‘No-Cut’ Conservation Easement without any disturbance to the easement.  He explained that it is virtually impossible to place a building on the edge of the easement because the excavator would have to cut a wide swath of trees to lay the foundation and, furthermore, once the lot is sold and a family moves in, a simple project like the construction of a sidewalk or deck on the back of the house would inevitably encroach into and/ or disturb the conservation easement.  Mr. Pagano explained that for the reasons previously stated, he feels that this subdivision plan is totally unrealistic.  He also stated that the rationale of the applicants as to how they meet the five (5) conditions or criteria for granting the area variance are simply not realistic.  He explained that the limitations in developing this property are what are delineated by the zoning ordinances and he feels that these ordinances should govern the development of this property.  Mr. Pagano provided the Board with a proposed order, dated February 27, 2007, essentially outlining his interpretation of the zoning ordinances and how the applicants’ proposal does not meet the five (5) criteria considered when granting an area variance.  He finished by stating that he feels the application for an area variance should be denied on the grounds of the zoning ordinances and would like the lot size requirements of the overlay zoning districts upheld in accordance with his rights as an abutter.  Mr. Beblowski asked Mr. Vasques to read aloud the proposed order to the audience, which was subsequently done.

Mr. Jeff Burd, Project Manager from Torino Development Company, introduced himself and stated that this isn’t a site plan review, the plans in front of the Board now are simply just a draft, and the plan will most likely be adjusted and revised as they go in front of and work with the Planning Board.  He explained that they are here requesting an area variance to the lot sizes themselves, not the plans, and depending on the Board’s decision tonight, they may propose a conventional subdivision design approach to the Planning Board or a cluster housing subdivision design that conforms to the overlay zoning districts’ minimum lot size requirements.  He stated that regardless of the subdivision design, they are going to have to find a way to respect the conservation easement but may end up making some tight lots due to the unique features of this property.  Mr. Burd explained that essentially the hardship is the fact that the property is unique because of its natural features, scattered wetlands, steep slopes, and the availability of only one access point off of Rt. 202 at the intersection with Old Milk Road.  

He stated that if the Zoning Board denies the area variance request tonight, Mr. Bob Pace has stated that they most likely will go with a conventional approach in order to get the twelve lots or twelve units that are necessary to make the project economically feasible.  He stated that they are going to try and find the highest and best use for the property as possible but there is only so much you can do with a property with such an extensive network of wetlands and steep slopes with only a single point of access.  Mr. Burd added that the conflict between the cluster housing ordinance and the two overlay zoning districts leaves the applicant at a disadvantage because it provides no guidelines for the applicant to follow when determining what will be an adequate size for cluster housing lots.  He stated that the cluster housing design proposal as shown on the plan leaves more acreage for open space, which is an asset for the Conservation Commission and the Town.  He stated that he hopes Mr. Beblowski would speak favorably tonight about their subdivision proposal, since he seemed on board with what they were proposing to do in regards to the open space.  Mr. Beblowski introduced himself, stated that he represents the Conservation Commission, and explained that the Conservation Commission is not prepared at this time to state they are in favor or against the proposal.

Mr. Young asked Mr. Burd how they propose to address the issue of not disturbing the conservation easement while still achieving the necessary square footage for each proposed lot and without decreasing the number of lots proposed.  Mr. Burd replied that 1) the layout of the lots on the present plan in front of the Board is simply a draft and is by no means the final proposed lot layout; 2) there is obviously a problem with the proposed lot (Lot 102-1-6), which Mr. Pagano pointed out; and 3) perhaps the lot design and layout can be reconfigured so that the western boundaries of the three (3) lots along the western boundary of the tract are established at the edge of the 100 ft. ‘No Cut’ Conservation Easement, instead of including the easement within the proposed lots.  He added that through the review process with the Planning Board, they will assure that the abutters’ concerns are addressed as best as possible in regards to the protection of the already established 100 ft. ‘No Cut’ Conservation Easement.
Mr. Vasques stated that he received a letter this morning from an abutter, Mr. Matt Chauncey, regarding his opposition to the granting of the variance for the proposed cluster housing subdivision.  Mr. Vasques read the letter aloud to the audience, at the request of Mr. Chauncey whom could not attend, and which is on file at Town Hall.  There was no response to the letter.

Chairman Winchester asked the audience if any abutters would like to speak to this issue, either in favor or against this proposal; there were none.  He then asked the audience if anyone is present that is not an abutter that would like to speak to this issue, either in favor or against.  Mr. Beblowski stated that the Conservation Commission met with Brown Engineering and Torino Development Company, LLC in May 2006 and at that time, a conservation easement of forty nine and a half (49.5) acres was proposed to be presented to the Town as part of this cluster housing subdivision proposal.  He explained that the Town’s current Cluster Housing regulations require the recognition of open space and that at least forty percent (40%) of the tract be dedicated to open space.  In this particular subdivision proposal, he stated that approximately seventy (70%) percent of the tract has been proposed to be left as open space as a conservation easement.  He explained that the Conservation Commission is in favor of cluster housing developments in order to utilize areas as open space in exchange for smaller lot sizes and frontages.  He stated that unfortunately there are no provisions in the current Cluster Housing regulations specifying to what degree the lots can be reduced in terms of lot size, frontage, and setback requirements for a cluster housing subdivision and is not the Conservation Commission’s role at this time to decide what these lot diminutions should be for cluster housing subdivisions.  He finished by stating that the Conservation Commission is generally in favor of open space and projects involving open space and explained that in this particular situation, if the project is required to have a longer road to access larger lots, then there would definitely be greater impacts to the wetlands present on the property.

Chairman Winchester asked the audience if anyone else is present that is not an abutter that would like to speak to this issue, either in favor or against; there were none.  He then moved to close the public hearing and opened the public meeting for the deliberation of the Board, which was seconded by Mr. Young and unanimously passed.  

Chairman Winchester stated that essentially the Board needs to now decide whether or not the five (5) criteria have been met for the granting of an area variance to the minimum lot requirements of the Steep Slopes and Wetlands Overlay Zoning Districts.  Mr. Young expressed his concern regarding the protection of the existing 100 ft. ‘No Cut’ Conservation Easement and suggested that the Board consider this when deciding on whether or not to grant the variance as it affects the minimum lot sizes of the proposal.  Mr. Kendall stated that he is a big advocate of cluster housing developments but stated that the precedence has to lie over the Steep Slopes and Wetlands Overlay Zoning Districts’ minimum lot size requirements.  He explained that he quickly counted at least fourteen (14) impact areas to separate wetlands pockets by the proposed lots and if the Board allows the lot sizes to be reduced, there’s no way to know how small the lots may end up being.  Furthermore, he stated that the point is that the tract is a tough piece of property, the proposal impacts a substantial amount of wetlands, and the Board will do more justification to the owners’ of those lots if they have 68,000 square feet to put in a pool, swing set, shed, or whatever.  He explained that by requiring that the applicants adhere to the minimum lot size requirements of the Steep Slopes and Wetlands Overlay Zoning Districts: 1) the applicants may still be able to get the same number of lots, 2) the end users or owners of these lots will have more room for accessory structures and/or other activities, and 3) it is less likely that the 100 ft. ‘No Cut’ Conservation Easement will be disturbed because property owners have a large space to use for placing the house, septic system, wellhead, driveway, and any other accessories.

Chairman Winchester added that perhaps the applicants could reduce the number of lots slightly in order to obtain the required lot sizes while still allowing the project to be economically feasible to complete.  Mr. Young stated that the Board must make a reasonable decision based on the five (5) criteria for granting an area variance and the applicants’ presentation regarding how the applicants meet these five criteria.  Mr. Kendall explained that half of the Town is either composed of steep slopes or wetlands and it is a bad precedent for the Board to set if it grants an area variance to the minimum lot sizes of these overlay districts in order to make this particular project more affordable, economical, or feasible for the applicant or developer.  He explained that the minimum lot size requirements of the Steep Slopes and Wetlands Overlay Zoning Districts were established for a reason and must preside over the Board’s decision tonight.  Mr. Young stated that he agreed with Mr. Kendall and thinks there are too many lots proposed for the amount of buildable land available on this property.

Chairman Winchester asked the Board if they had any further questions for the applicant.  He asked the applicants if they feel it is conceivable that they could propose a cluster housing development that meets the overlay district requirements and perhaps have fewer lots; would this be something you would consider?  Mr. Burd replied that they would have to propose something along those lines if they went with a cluster housing design approach and the Board denied the variance request tonight.  He explained that they may have to go back to a conventional subdivision design approach in order to make the project more economically feasible, they will have to determine that before going back in front of the Planning Board.  Mr. Burd added that they need at least nine (9) lots in order to make it economical to develop this property; nine is the bare minimum number of lots needed and is really not that many lots for a seventy (70) acre parcel of land.

Chairman Winchester asked the Board if they had any further questions or if they were ready for a roll call vote.  Mr. Young made a motion that a roll call vote be taken for the area variance.  Mr. Winchester seconded the motion which unanimously passed.  Mr. Vasques reviewed and read aloud the criteria for an area variance during the Roll Call vote.  The Roll Call Vote is as follows:

1.      The value of surrounding properties will not be diminished.  Roll call vote: Mr. Young – aye, Mr. Scales – aye, Mr. Crafts – aye, and Mr. Kendall – nay.
2.      The variance will not be contrary to the public interest.  Roll call vote: Mr. Young – nay, Mr. Scales – nay, Mr. Crafts – aye, and Mr. Kendall – aye.
3.      Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship as follows:
A) An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property.  Roll call vote: Mr. Young – aye, Mr. Scales – aye, Mr. Crafts – nay, and Mr. Kendall – nay.
B) The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.  Roll call vote: Mr. Young – nay, Mr. Scales – aye, Mr. Crafts – nay, and Mr. Kendall – nay.
4.      Substantial justice is done.  Roll call vote: Mr. Young – aye, Mr. Scales – aye, Mr. Crafts – nay, and Mr. Kendall – nay.
5.      The variance is consistent with the spirit of the ordinance.  Roll call vote: Mr. Young – aye, Mr. Scales – aye, Mr. Crafts – nay, and Mr. Kendall – nay.

The applicants were advised that the variance had been denied and they would receive an official notice of decision in the mail, signed by Chairman Winchester, as well as an e-mail with the minutes of the meeting attached.

Approve ZBA Meeting Minutes:  Mr. Scales made a motion to approve the minutes of the December 12, 2006 meeting as presented, which was seconded by Mr. Crafts and unanimously passed.

NH OEP News – 14th Annual Spring Planning and Zoning Conference:  Mr. Vasques advised the Board that the New Hampshire Office of Energy and Planning (NH OEP) is holding another planning and zoning conference in the spring of 2007 on Saturday, April 28, 2007 at the Center of NH, Radisson Hotel, in Manchester, NH.  He stated that the registration information is available at NH OEP’s website (

Chairman Winchester moved to adjourn the meeting.  Mr. Kendall seconded the motion which passed.  Chairman Winchester adjourned the meeting at 9:00 PM.

Respectfully submitted,

Bradley J. Houseworth, Planning Technician
Antrim Zoning Board of Adjustment

Town of Antrim, NH P.O. Box 517, 66 Main Street Antrim, NH 03440
Phone: (603) 588-6785    Fax: (603) 588-2969    Monday - Thursday 8:00am - 4:00pm
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