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Zoning Board of Adjustment Minutes 04/02/2013

April 2, 2013 Meeting
Public Hearing – Risman-Jones – Two Variances
File #: 2013-01ZBA       Map #: 104      Lot #: 104

Members & Staff Present:     
Diane Chauncey (Staff)     John Giffin (Member)    Ron Haggett (Member)     
Frank Scales (Member       Shelley Nelkens (Alternate)  
 Ray Ledger wood (Alternate)      
Members & Staff  Absent:
John Kendall (Chair)                
Public Attendees:       
Atty Callen             Heidi Risman-Jones              Richard Risman-Jones    Earl Sandford
Walter Neff             Barbara Cohen                   

7:00PM Public Meeting:

Heidi & Richard Risman-Jones for a variance from Article XI-A Section 10.d (Shoreland Protection District) to permit expansion of an existing non-conforming structure within 100’ of the reference line; and a variance from Article VI Section C. 6. (Residential District – Non-residential uses), as authorized by Article XVI, Section C.1. (Non-conforming structures) to permit the expansion of the existing structure (to accommodate the Child Care Center) on this pre-existing lot of record, which does not comply with current minimum lot size, lot frontage, lot depth, and front setback requirements on property located at 3 High Street (Tax Map 104, Lot 104), Antrim, NH 03440 in the Residential District..

Acting Chair Giffin opened the meeting at 7:05 PM. He appointed Ms. Nelkens to sit for the absent Chair Kendall and Mr. Ledgerwood to sit for the absent member.

The Public Notice was read and noted that it had been advertised appropriately. It was noted that an email from Mr. Belliveau had been sent to the Secretary today. It was determined that it would be read in the Public Hearing.

Atty Callen of BCM Environmental & Land Law, LLC introduced his clients, Heidi and Richard Risman-Jones, as well as, Earl Sandford, surveyor/engineer of Sandford Engineering, also an agent for the applicant.

Atty Callen gave the history of his applicants’ case thus far. He said that the Risman-Jones came before the ZBA on May 8, 2012 for a Special Exception which was granted by the ZBA. He stated the criteria which the ZBA had reviewed and that the Special Exception request had been granted. Atty Callen said that, although he did not want to criticize the former attorney, the former attorney should have realized that other variances were needed. It was noted during Site Plan Review it was determined that other variances should have been requested. Atty Callen stated that he joined the Risman-Jones case after the ZBA Special Exception had been granted.

Mr. Haggett asked if the question of the variances was brought up by the Planning Board and did the Planning Board feel that the variances were necessary. The answer was yes.

Atty Callen continued his presentation. He stated that two variances were requested (wording from the application):

  • Variance request from Article XI-A (Shoreland Protection District) Section 10.d. of the Zoning Ordinance to permit expansion of the existing non-conforming structure within 100’ of the reference line; said expansion of a nonconforming structure is explicitly permitted by Variance under Article XI-A, Section 15. The expansion is to accommodate a Child Care Center already approved by Special Exception, which will actually reduce the building footprint within 100’ of the reference line. We expect the project will also be approved by DES under the Shoreland Water Quality Act as an improvement to an already heavily “altered” and developed site.
  • Variance request from Article VI. (Residential district) Section C. 6. (Non-residential uses) of the Zoning Ordinance (as authorized by Article XVI. Section C.1. (Non-conforming Structures) to permit expansion of the existing structure (to accommodate the Child Care Center ) on this pre-existing lot or record, which does not and cannot comply with current minimum lot size, lot frontage, lot depth, and front setback requirements.
Atty Callen explained the five criteria necessary for the two variances.  He read from the application (complete application available at Town Hall). He stated several lawsuits that he felt were relative to this case: Harborside Associates, L.P. v. Parade Residence Hotel (hard copies of this case were given to the ZBA members) Chester Rod and Gun Club v. Chester, Brandt Development Co of NH v. Somersworth, and Malachy Glen Associates v. Chichester.

Summary of the five criteria:
  • The variance will not be contrary to the public interest – the redevelopment of the site is very much in the public interest, and allowing such productive redevelopment does substantial justice.
  • The spirit of the ordinance is observed – the spirit of the ordinance is observed, indeed honored in that this redevelopment will, necessarily, receive approval from NHDES and the limitations to the site with respect to size, frontage, and depth are pre-existing, historic and thus “grand-fathered, and the non-conformity is not affected in anyway by the expansion to the rear.
  • Substantial justice is done – criteria discussed in #1.
  • The values of surrounding properties are not diminished – the applicant maintains that this up-grade and redevelopment of the site will improve the neighborhood, and increase, rather than decrease, the value of the surrounding properties – the renovated existing building and the new childcare center will be an asset in comparison to the abandoned commercial building.
  • Literal enforcement of the provisions of the ordinance would result in unnecessary hardship.
Mr. Haggett questioned the role of the Planning Board.

Atty Callen referred to the Planning Board Notice of Decision which conditionally approved the project. There were seven conditions. Two conditions required the applicant to return to the ZBA to request the current variances.

Ms. Nelkens questioned the ZBA minutes of May 8, 2012 – page 3 which concerned driveway with the easement issues. (3 High Street and Frameworks [owned by Paul Belliveau] share a driveway).

Atty Callen stated that there had been numerous attempts to contact Mr. Belliveau, but there had been no response. Certified mail had been received by Mr. Belliveau’s agent.

Ms. Risman-Jones explained the parking, the safety of the children, and her reasons for adding a new building rather than renovating an old structure. She stated that she had created a turn around which would create safer parking.

Atty Callen stated that the question asked by Ms. Nelkens was the purview of the Planning Board and did not speak to ZBA criteria. Atty Callen stated that he would like to have discussed the easement issues with Mr. Belliveau but up until an email received today, Mr. Belliveau has been silent.

Mr. Sandford stated that the parcel was in an urban setting that will be fenced. As to the parking issue, he stated that five cars could be stacked up and waiting and still would not be in the Frameworks easement.

Mr. Haggett stated that the Planning Board had agreed to the parking lot in the Major Site Plan Review.

Mr. Giffin questioned the maximum coverage of the parcel.

Mr. Sandford explained the coverage issues.

Ms. Nelkens had questions concerning the maximum number of cars, the trucks and health and safety.

Atty Callen stated that the ordinance required 10 spaces and Ms. Risman-Jones stated that she was willing to create a policy – should parking become a problem.

Mr. Haggett repeated that all of these issues were discussed at the Planning Board Major Site Plan Review.

Atty Callen’s final point – he stated that the drivers would be going driveway speed, would realize that there is a childcare center, and that the child care center has every right to utilize the driveway.

Ms. Nelkens continued - that winter accidents could occur in a downhill skid and then questioned the Zoning Ordinance and was this a change of use?

Atty Callen reminded Ms. Nelkens that the ZBA had granted Risman-Jones a Special Exception on May 8, 2012. He continued that the applicant is now asking for a variance concerning dimensional use – which will improve the lot.

Mr. Scales asked the age of the house. Ms. Risman-Jones stated that she was not sure.

Ms. Nelkens asked about the cemetery. Mr. Sandford answered the same as he had in the Site Plan Review.

Acting Chair Giffin asked the Board if there were any further question concerning the proposal. There were no further questions.

Public Hearing:

Acting Chair Giffin asked if there were any abutters who would like to speak in favor of the proposal. There were none. Acting Chair Giffin asked if there were any abutters who would like to speak that were not in favor of the proposal.

In opposition – Mr. Neff stated that he was nervous about the pond. He said that the neighborhood was now rural and industrial. He said that he owned a dam and a pond and that he may now have to fence the pond and that would be a burden that he never anticipated. He explained that tractor trailers have difficulty making the bridge corner. He cited several examples of impaled and jack knifed trucks. He also stated that there were blocks under the bridge and that he had a concern for water backing up.

Also, in opposition – Ms. Cohen stated that she had been a teacher her whole life and that (the proposed site) was the last place she would ever put a childcare center. She stated her concern for securing the area and health and safety of the children.

Mr. Haggett asked Mr. Neff and Ms. Cohen if they had attended the Planning Board meetings. They had not attended the meetings.

Ms. Nelkens asked the cost of installing a fence.

Ms. Cohen read from a Department of Environmental Services (DES) letter stating that the Neffs would have the responsibility to erect a fence. She stated that they would need legal counsel – that they have no choice.

Atty Callen stated that the proposed childcare center will be entirely fenced and that the Neffs were expressing an unreasonable fear – the center will be gated and fenced.

Ms. Risman-Jones stated that the facility would be state licensed and that she would be following all criteria and that she understands the liability of caring for children.

Ms. Cohen stated that she continued to be concerned for the safety of the children.

Mr. Neff stated that the abutting parcel was a Brownfield’s site.

Atty Callen stated that in the conclusion of the DES report, there was a statement that said a childcare center was appropriate for this use and that the children would not be going next door and eating dirt.

Ms. Risman-Jones said that in the DES Environmental Site Assessment, Mr. Keith Dubois had come to the site and that the letter clearly states that no remedial action was necessary.

8:45 – Short Break

Acting Chair Giffin stated that the Deliberation would not occur this evening.

Ms. Risman-Jones objected. She stated that this was the 6th meeting before an Antrim Board.

Acting Chair Giffin read Mr. Belliveau’s email which was in opposition to the proposed project.

Mr. Haggett moved to continue the meeting to April 23, 2013 at 7PM; it was seconded by Mr. Scales. All were in favor to continue the meeting.

The meeting was closed. The public attendees left the meeting room.

John Kendall joined the meeting

Business Meeting:       

Approve Minutes of May 8, 2012

Mr. Haggett moved to approve the minutes; Mr. Scales seconded. The minutes were approved as presented.

Organize Committee – Vote for Chair, Vice-Chair, and Recommend new member to replace Doug Crafts

Mr. Haggett moved to appoint Mr. Ledgerwood as a full member and to reappoint Ms. Nelkens as an alternate. Mr. Scales seconded. All were in favor of the appointments.

Mr. Haggett nominated Mr. Kendall to continue as Chair of the ZBA and Mr. Giffin to continue as Vice-Chair of the ZBA. Ms. Nelkens seconded. All were in favor of the motions.

At 9:10 PM, Mr. Haggett moved to adjourn; Mr. Scales seconded. All approved. The meeting was adjourned.

Respectfully submitted,
Diane Chauncey, On Behalf of the Antrim Zoning Board of Adjustment


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