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Zoning Board of Adjustment Minutes 05/12/09

May 12, 2009 Meeting
Site Walk - Map 214 Lot 76 - 60 Wheeler's Cove Road

Members & Staff Present:        Diane Chauncey   Doug Crafts            John Giffin     
Ron Haggett                     John Kendall             Frank Scales                           
Members & Staff Absent:   Len Pagano             Don Winchester         Paul Young      Paul Vasques
Public Attendees:               Neal Cass               Peter Hopkins           Beverly Hall
David Hall                      Jason W. Philhower              Paul Falcigno           Peter Moore
John Rattigan                   Jerry Nye                       
5:30 Town Hall
 Meet and then take the Antrim Community bus driven by Neal Cass to 20 Wheeler's Cove Road

Weather  Threat of a thundershower, but none occurred. Black flies were present

5:55pm Public Meeting at 20 Wheeler's Cove Road Chair Kendall introduced himself and the Board members. He appointed Mr. Scales to sit for the absent Mr. Young.  All of the above listed Board members, staff, and public attendees (except Jerry Nye who only attended the Town Hall portion of the meeting) viewed the Falcigno carport. Mrs. Hall had a diagram depicting the area and a measuring tape with which she (and two Board members) measured the carport and its relation to the right of way. Both the Halls and the Falcignos explained their position related to the carport and the right of way. The Board members asked questions. After the attendees had reviewed the area and the conditions, all participants proceeded to Town Hall where the meeting was continued.

7:00 Public Meeting continued at Town Hall
Chair Kendall continued the meeting. He asked if there was any further information to be presented. The Halls were concerned that all had received the “AllClear Septic” letter. The letter had been copied and all had received a copy as well as the diagram that Mrs. Hall had shown at the Site Review. The letter was read into the meeting minutes. Chair Kendall asked if anyone would like to speak concerning the proposal.

Attorney Rattigan summarized what has occurred thus far. His initial letter of February 17, 2009 addressed all criteria. He explained that the carport had come before the ZBA because a permit had not been obtained. He said that no one would have allowed a building permit. The right of way should not matter. The hardship aspect did not matter because there was nothing unique about the Falcigno lot. The topography and the steep slopes are the same in many of the lots on Wheeler’s Cove Road. Attorney Rattigan stressed that the criteria had not been satisfied. He stated that the issues are not about medical conditions, nor is it a personality contest. The application simply does not satisfy the criteria. And there is danger in an emergency and the carport violates construction in the right of way.

Mr. Hall expressed his sense of living  in the town of  Antrim. Mr. Falcigno had been a good neighbor. Mr. Hall had asked Mr. Falcigno not to place anything there. He told about the rut in the road (near the carport). He explained that Mr. Mellen had done the survey. He told how the truck driver for the septic company was very angry about the narrowness of the road. He stated that he was just trying to put into perspective what has happened. He told of discussing the situation with Jeff Parsons and his complaint to him concerning the right of way which went through Mr. Falcigno’s property. Mr. Parsons had sent a letter to the Falcignos expressing the need for a building permit. He said that it was not okay to place the post of the carport in the tire rut. He and Mrs., Hall have spent $10,000 on fees thus far. He said that he is pleading to the Town, asking as a citizen, and trying to paint a picture of what it is like to be him.

Chair Kendall asked if there were any abutters who would like to speak in favor of the applicant. There were none. Chair Kendall asked if there were any abutters who would like to speak against. Mr. Falcigno asked to rebut some of the information that had been given.

Mr. Falcigno explained that he had bought the carport in Swansea from a man who assured him that a building permit was not needed for the carport structure. Mr. Falcigno needed the carport to protect his boat. He never dreamed that it would come to this point – just to provide protection for his boat. The deed just states a right of way ‘as laid out’ – no dimensions stated.

Chair Kendall asked if there were any further questions from the board. The Board discussed several ambulance incidents that had occurred, none of which had difficulty with the carport.

Chair Kendall closed the Public Hearing.

Chair Kendall explained to the Public Attendees that this is the time for the Board members to discuss the facts of the case that had been presented to them. The Board discussed the following issues that were presented to them:
  • Concern about the construction on the right of way
  • The Board had granted the variance to the side yard and front yard setback
  • Dimensions of the right of way are not known
  • Emergency vehicles are a concern
  • Community bus able to move through the carport area effortlessly
  • Does the ZBA have jurisdiction on boundary disputes
  • Some Board members felt that the Board should not be ruling on boundary disputes
  • Unfortunate that a site walk did not occur in December
  • Should the Board members decide if boundary is not known?
  • The lots involved were pre-zoning
  • Information from Town Counsel letter was read and confirmed to the Board that they could not make a decision if the right of way is not know.
At this point in the deliberation, Attorney Rattigan added (with permission of the Chair) that paragraph three of his letter (dated January 13, 2009) to the ZBA chair stated that medical conditions were involved. The carport is in the right of way. The issues touch on emergency services and the right of way.

At 7:30, Chair Kendall states that the right of way needs to be defined before any decision can be made 
The Board discussed the role of the ZBA in adjudicating this type of issue. They discussed their role and how they interpret the information put before them. In this case it is a non-conforming lot among many other non-conforming lots  - all of which share similar topographical challenges.  Town Counsel stated that it is a boundary dispute between neighbors. The question of making a definitive decision is before the Board.

Attorney Rattigan questioned – is it therefore possible for anyone to build a carport wherever they want without a permit?

The discussion of the possible choices continued. It was finally determined that the five criteria should be read. Ms. Chauncey read the criteria.

        1. The value of surrounding properties will not be diminished:
        2. The variance will not be contrary to the public interest: 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:
                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:
        4. Substantial justice is done

        5. The variance is consistent with the spirit of the ordinance:

The discussion continued. At 8:00, Chair Kendall stated that in order to make an accurate decision the Board needed to know the right of way measurement. The Falcignos would confer with the Halls on the edge of the road as far as safety is determined, if the carport is in the right of way or not in the right of way and aesthetics is not the issue..

The Halls, Attorney Rattigan, and the Falcignos step into the lobby area to discuss the right of way, while the ZBA and other attendees remained in the Little Town Hall. The Wheeler’s Cove group returned with their decision.

Chair Kendall resumed the meeting.

Attorney Rattigan states that both parties agree that the first carport post is ¼” in the right of way.

The Board questioned whether other property owners on the right of way of Wheeler’s Cove Road should be involved in the discussion. It was decided not to involve the other landowners on the right of way. The Board also discussed whether or not conditions needed to be added to an approval. After some discussion, Mr. Giffin moved to add a condition that stated that the carport should be relocated to five feet from its present location. Mr. Crafts seconded the motion. Roll Call Vote: Mr. Giffin, aye; Mr. Crafts, aye; Mr. Haggett, aye; Chair Kendall, aye; Mr. Scales, aye.

Mr. Giffin moved to  vote on the approval (disapproval) of the area variance with four conditions. Mr. Scales seconded it.

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 January 20, 2009 and subsequent meetings as they pertain to this application are a conditional part of this approval.
2.  The applicant is to obtain a building permit for any construction or alteration and adhere to all            
      building, health and fire codes.
3.  Subject to payment of LCHIP $25.00 fee.
4.  The carport should be relocated five feet (5') off the traveled way from its present location of 1/4" in the right of way.

Roll CallVote: Mr. Giffin, no; Mr. Crafts, aye; Mr. Haggett, no; Chair Kendall, aye; Mr. Scales, aye.

The Area Variance is GRANTED with three ayes and two nays. The Notice of Decision with the four conditions will be sent to the Halls and the Falcignos within six business days.

Business Meeting:

Approve the minutes of the April 28, 2009 Meeting Mr. Scales moved to approve the minutes as presented. Mr. Haggett seconded the motion and the Board unanimously approved.

Approve the minutes of the May 5, 2009 Site Walk Mr. Haggett moved to approve the minutes as presented. Mr. Giffin seconded the motion and the Board unanimously approved.

(1)New Cingular Wireless (AT&T):
Mr. Vasques reviewed the proposal from Mr. LeMay to conduct an independent survey regarding the potential impact of a cell tower view on parcel Map246 Lot 6. There was a brief discussion as to whether or not the Board should require such a survey at the expense of the applicant. The consensus was that they should.  Mr. Vasques asked for a  roll call vote.
Mr. Crafts moved to accept the real estate appraiser's proposal to prepare an independent evaluation of the abutting properties of ( Map 246 Lot6) subject to the agreement of New Cingular. Mr. Haggett seconded the motion.

Vote: Mr. Giffin, aye; Mr. Crafts, aye; Mr. Haggett, aye; Chair Kendall, aye; Mr. Scales, aye.

(2) Review Mr. Hutchins’s correspondence with the applicant – Mr. Vasques stated that Mr. Hutchins (Radio Frequency Engineer) has requested information from AT&T and they  have responded with the requested information.

(3) Decision to hold a  balloon test on May 19th – this will not happen – the date will be discussed at the May 19, 2009 Zoning Board Meeting with the Applicant.

(4) Status of appointments of members and alternates – should be determined by the next Selectmen’s meeting
Correspondence: No new actions

New Business from the floor No new business

At 9:35, Mr. Haggett moved to adjourn. It was seconded by Mr. Giffin, and approved.

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
Phone: (603) 588-6785    Fax: (603) 588-2969    Monday - Thursday 8:00am - 4:00pm
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