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Zoning Board of Adjustment Minutes 12/16/08

December 16, 2008 Board Meeting

Members & Staff Present:        Diane Chauncey (Staff),         Doug Crafts (Member),
John Giffin (Member),   Ron Haggett (Alternate),                Bradley Houseworth (Staff),     
John Kendall (Chair),   Frank Scales (Alternate),               Paul Young (Vice Chair)
Member & Staff Absent:      Len Pagano (Member),                Don Winchester (Alternate)                                                      
Public Attendees:    Paul Vasques (agent for the Falcignos)             
Public Meeting:  Chair Kendall convened the meeting at 7:16 pm and appointed Mr. Scales to sit for the absent Mr. Pagano. He asked the Board and Staff to introduce themselves.  Mr. Haggett excused himself from the meeting due to the fact that a full board was present, and he had other commitments.
7:15 Public Hearings:
Paul & Theresa Falcigno -Area variance to permit the construction of a carport within the minimum front yard setback: fifty feet (50’) from the street or right-of-way line (Wheeler Cover Road) and twenty feet (20’) from the minimum side yard setback):  Chair Kendall requested that Mr. Houseworth read the Public Notice aloud, which follows: Notice is hereby given that a public hearing will be held at 7:15 P.M., Tuesday, December 16, 2008 at the Antrim Town Hall concerning a request by Paul & Theresa Falcigno for an area variance from Article VIII, Section C.3. of the Antrim Zoning Ordinance to permit the construction of a carport within the minimum front yard setback: fifty feet (50') from the street or right-of-way line (Wheeler's Cove Road), and from Section C.4., within the twenty feet (20') minimum side yard setback on property located at 60 Wheeler's Cove Road (Tax Map 214, Lot 76) in Antrim, NH 03440, located in the Lakefront Residential District. Mr. Houseworth pointed out the black and white photos in the packet and passed around the color photos.

Chair Kendall asked Mr. Vasques, Mr. Falcigno’s agent, to present the proposal.  Mr. Vasques provided additional documentation to support the applicants’ request: 1) a signed  permission from the Falcignos for Mr. Vasques to represent them as their agent; and 2) additional maps and photos, showing the carport’s location on the property. Mr. Vasques explained that the Antrim Zoning Ordinance was developed in the 80’s but that Wheeler’s Cove Road had been subdivided into [now] non-conforming lots in the 50’s. Mr. Vasques stated that one of the Zoning Board’s role is to provide relief to property owners with issues such as siting a carport on a pre-existing, non-conforming lot. Mr. Vasques’ pictures showed a sloping lot, stating that it is approximately a 30º slope. Mr. Vasques explained that one of the issues of the carport brought up by the complainant was its placement in relation to the existing right-of-way and its potential obstruction of traffic flow (of most concern – the width of emergency vehicles).  One photo illustrated a solid berm abutting the carport which would not allow a wider vehicle.  Mr. Vasques contacted the Fire Department (Marshall Gale – assistant Fire Chief) who checked and measured the width of the existing right-of-way, between the carport and the berm on the other side of the road, and found it to be approximately eleven (11’) feet wide. Mr. Vasques had prepared a document stating the information that Mr. Gale had verbally agreed with - that an emergency vehicle could navigate an eleven (11’) foot wide right-of-way if needed. However, Chief Beauchamp did not allow Mr. Gale to sign the document due to potential liability concerns regarding emergency services on a private road/ ROW.  Mr. Scales felt that it was information that could not be used by the Board in determining the applicants’ request. Mr. Vasques was asked the following questions (his answers are in italics):  

        Why did the applicant not ask for a variance before constructing the carport? The applicant had                 been told by the seller of the carport that putting up this structure would not require any             approvals from the Town.  
        How did the neighbors feel about the carport? The Halls (last house on the road), and Mrs.              Neely (Lot 75), were not in favor of the carport in its present location due to its                     proximity to the right-of-way.   
        Is Wheeler’s Cove (a private road) maintained in winter? From  Lot 73 to the end, it is not             winter maintained.
        Are the setbacks on a private road different from those on a Class V road? Road classes do not                  distinguish zoning regulations in terms of setbacks from roads or rights-of-way.
        How would a comparison of a property on West Street and a property on Wheeler’s Cove Road       differ as far as setbacks go? No difference – the zoning requirements are the same. The                         difficulty with the Falcignos' property is that the right-of-way runs through the lot - not             as the front boundary line of the lot, as in most cases.
        Is the carport for winter storage for the boat? The primary use of the carport is winter storage,               but a car does park inside the carport in the summer months – according to a neighbor.

Chair Kendall asked if the Town Planner had any additional information to add regarding the right-of-way or private road. Mr. Houseworth stated that, unfortunately, there is nothing in the deeds or plans which describe the width of the right-of-way.

Public Hearing: Chair Kendall closed the public meeting, opened the public hearing, and asked if there were any abutters who would like to speak in favor of the proposal. There were none. Any abutters in opposition? There were none. There was one letter in favor of the applicants’ proposal from Mr. Eric Piekarsk, which was read into the record by Mr. Houseworth.  One phone call, in addition to the original phone call complaint by Ms. Hall, to the Town Planner stated opposition to the carport because of the way it looks and where it is situated. Mr. Vasques further explained that the Wheeler’s Cove neighborhood, in the Lakefront Residential District, is different from properties in other Zoning Districts ( e.g. a Pleasant Street property) because of their limitations due to small lot sizes, less frontage, and right-of-ways being located within property boundaries. He felt that Mr. Falcigno had acted in good faith, despite not obtaining a building permit or variance before erecting the carport. Mr. Young discussed boat storage on Jackman Shores.  He said that it is not always aesthetically pleasing but feels that that is the way it is in the Lakefront Residential District.

Mr. Houseworth said that all abutters had been sent letters but only one of the certified letter receipts had been returned (Falcigno).  Chair Kendall closed the public hearing and reopened the public meeting for the Boards’ deliberation period.
Deliberation:  Chair Kendall asked for questions from the Board members. There was a long discussion concerning the applicant’s request. The Board members considered the various aspects of the application carefully. The following is part of each Board member’s contemplations:

Mr. Giffin felt that the carport should not have been built without a permit, and if the applicant had applied initially for a variance, he would not have voted for it. The lot is small and steep and the carport should never have been put in its current place. Mr. Giffin questioned the hardship aspect of the application.

Mr. Vasques felt that the hardship was the lot size and trying to conform to the Zoning Ordinance requirements when the lot was subdivided in the 50's, prior to the present requirements. The Falcignos would have had to cut out a portion of the hill to site the carport in the same general location but further away from the private road, likely leading to erosion and stormwater problems.

Mr. Young felt that the Zoning Board’s role is to adjudicate. On Wheeler’s Cove Road, the vehicles are able to get by the carport. Mr. Young also felt that the right-of-way extending through the Falcignos' property should extend greater flexibility to the zoning ordinance requirements.. He has seen larger messes and structures closer to the road, and Mr. Falcigno had no room to place the structure elsewhere. Mr. Young felt that it was a reasonable use of the applicant's parcel.

Mr. Scales – The only vehicles that travel by the Falcigno carport are the people who live on the road.

Mr. Crafts – The lots on Wheeler’s Cove Road are very small and the carport may be acceptable in this neighborhood.

Chair Kendall – It would have been more reasonable for Mr. Falcigno to have come in front of the Zoning Board of Adjustment before the construction of the carport, at which point carefully consideration could be made for other locations for the carport. He felt that there were other alternatives for the location of the carport and that the applicant should have come before the Board for guidance before erecting a structure.

The discussion ended and Chair Kendall continued the public meeting by reviewing the 5 criteria which must be met in order for an Area Variance to be granted. Mr. Houseworth read aloud the following five (5) criteria for an area variance from Article VIII, Section C.3. of the Antrim Zoning Ordinance to permit the construction of a carport within the minimum front yard setback: fifty feet (50') from the street or right-of-way line (Wheeler's Cove Road) and Section C.4. twenty feet (20') within the minimum side yard setback on property located at 60 Wheeler's Cove Road (Tax Map 214, Lot 76) in Antrim, NH 03440, located in the Lakefront Residential District. The criteria were read with the applicants' responses from the application that had been submitted for the proposal:

        1. The value of surrounding properties will not be diminished: because it is a sound structure          which is setback as far as possible.
        2. The variance will not be contrary to the public interest: because if is not blocking the right-              of-way and is best and only location for carport.
        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: because it is a small lot and the                         right-of-way is located in front yard setback an (it is a) very steep lot.
                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:
                        because (it is the) only location to position carport on property.
        4. Substantial justice is done: because (the applicant) needs a structure to protect boat from          damage by trees which is reason for putting up carport.
        5. The variance is consistent with the spirit of the ordinance: because carport is positioned as                far back from the lake as possible on level surface, minimizing erosion.

Mr. Houseworth stated that these are the 5 criteria to focus on when deciding whether to grant the applicant’s request. Mr. Giffin restated his position that he felt that the value of surrounding properties were diminished because the carport is not aesthetically pleasing and it could have been positioned differently. He also felt that the structure encroached on abutters land. The other Board members felt that they had stated their opinions in the deliberative session.

Mr. Young moved to vote on each criterion individually. Some Board members questioned Mr. Young's voting procedure. Mr. Houseworth reminded the Board that Town Counsel's position was to vote the application as a whole, not each criterion individually. Chair Kendall felt that Mr. Young's motion put the Board in direct conflict with Town Counsel’s recommendation and therefore declared the motion out of order. Mr. Giffin moved to approve the application and Mr. Crafts seconded it. Mr. Young thought that the application should be approved with no conditions.  The other members of the Board thought that at the least,  the first condition (of the 3 standard conditions) should be in place. Mr. Young moved to accept the application with one condition; it was seconded by Mr. Scales, and unanimously approved to read as follows:

Move to approve, with conditions, the request of Paul & Theresa Falcigno for an area variance from Article VIII, Section C.3. of the Town of Antrim Zoning Ordinance to permit the construction of a carport within the minimum front yard setback: fifty feet (50') from the street or right-of-way line (Wheeler's Cove Road) and twenty (20') within the minimum side yard setback structure on property located at 60 Wheeler's Cove Road (Tax Map 214, Lot 76) in Antrim, NH 03440 in the Lakefront Residential  District.

The following conditions apply to this approval:
Zoning Board of Adjustment requirements, commitments and agreements made by the applicant and/or his agent as recorded in the meeting minutes dated December 16, 2008 and subsequent meetings as they pertain to this application are a conditional part of this approval.

Motion to Accept made by Mr. Young. Motion seconded by Mr. Scales.

Roll call vote: Mr. Giffin. no; Mr. Scales, yes; Chair Kendall, no; Mr. Young, yes; Mr. Crafts, yes

The area variance request was GRANTED. A Notice of Decision, signed and endorsed by the Chair with the above-mentioned one (1) condition, will be sent to Mr. & Mrs. Falcigno within 144 hours of the end of the meeting.

Approval of the Zoning Board of Adjustment Meeting Minutes:  Mr. Giffin made the motion to approve the December 9, 2008 meeting minutes as presented. Mr. Scales seconded it.  The minutes were approved.

Business Meeting:

Final Version of Town of Antrim Zoning Board of Adjustment Rules of Procedure:  Note: no longer called ‘By-Laws’ –the final version of the rules of procedure were distributed to the Board members.

Clingenpeel – Miscellaneous materials, junk, garbage, and animal control issues
FYI regarding current code enforcement issues on property located at 123 Reed Carr Road (Tax Map 212, Lot 6) in Antrim.
Mr. Scales made a motion to adjourn, which was seconded by Mr. Crafts and unanimously approved by the Board.  Chair Kendal adjourned the meeting at 8:35 pm.

Respectfully submitted,

Diane M. Chauncey, Planning Assistant,
On Behalf of the Antrim Zoning Board of Adjustment

Town of Antrim, NH P.O. Box 517, 66 Main Street Antrim, NH 03440
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