Zoning Board of Adjustments
ZONING BOARD OF ADJUSTMENT
APPROVED MEETING MINUTES
April 20th, 2021
Public Hearing/Meeting
Members & Staff Present:
Shelley Nelkens (Member), Diane Kendall (Chair), Christopher Parks (Member), Janet McEwen (Member), Bob Holmes (Vice Chair), Carol Ogilvie (Planning Consultant participating by Zoom), and Ashley Brudnick-Destromp (Assistant)
Absent:
Public Attendees: Tom Davis (BOS via Zoom), Donna Hanson (Town Administrator via Zoom), (BOS via Zoom), Lyrell Gillette (Abutter via Zoom), Janet Van Zoeren (Abutter via Zoom), Glenn Noble (Abutter), Bruce & Teresa Engel (Applicant), David Clater (Self,
*Due to COVID-19 this meeting was conducted with social distancing and also made available to public access via Zoom*
Opening of Meeting: Chair Kendall opened the meeting at 7:00 PM
Roll Call Vote for Attendance: Diane Kendall, “Here,” Bob Holmes, “Here,” Shelley Nelkens, “Here,” Christopher Parks, “Here,” and Janet McEwen, “Here.”
The Assistant informed everyone in person who was attending via Zoom.
Chair Kendall explained the process for the Public Hearing and also added that the ZBA had just done at site visit at the property at 6pm prior to the Public Hearing.
I. Public Hearing: Bruce & Teresa Engel for a variance from the 20’ foot side yard setback requirement in order to build a garage on property located at 125 Mountainside Drive (Tax Map 201 Lot 042) in the Lakefront Residential District.
The Assistant read the Public Notice and confirmed it was posted correctly and abutters were notified.
Mr. Parks mentioned that during the site visit earlier in the evening, the applicant informed them that he had changed the plans and presented a new set of plans that were done. The Assistant stated she knew nothing of such plans, neither did the Planning Consultant or the Building Inspector. Because of this, she suggested that they amend their application and re notice. There was a discussion on this, as the Board felt that Mr. Engel needed a variance from the 50’ foot setback from the Road. Ms. Ogilvie explained that the “road” is actually a right of way (ROW) and that the 50’ foot front yard setback is intended to be from the road that the frontage is on, and the ROW is not where the frontage is. She added that this is an access road only and should be treated like a driveway and where the Town has no driveway regulations the Board could make a condition of 10’ Foot setback for the purpose of snow and maintenance space when plowing.
Ms. McEwen felt that because of this and the changes it should be a revised application with the ROW included. Ms. Ogilvie did not think it was necessary for a revised application because the issue can be clarified with the decision.
Mr. Holmes inquired if the Board can make a 10’ Foot setback from the ROW a condition, and Ms. Ogilvie responded yes because there should not be anything impeding the ROW.
Ms. McEwen mentioned Section 3 of the physical application, and how there was no mention of the side yard setback in the applicant’s answer nor mention of distance being requested within the 20’ foot setback.
Mr. Parks responded that because the application shows plans now being less into the 20’ foot side yard setback if this was an issue. Chair Kendall said that the conditions for the NOD could have the specific amount in them or just reference the new set of plans.
Mr. Engel introduced himself and his wife and explained how they had resided in CT and had purchased the home years ago and decided with COVID to make it their permanent residence and sell their home in CT. They did not realize how hard the winter was going to be with snow and moving vehicles and how they struggled getting out of their home at times this year. Mr. Engel expressed that they need a garage for their vehicles and a better way to have access to leave. There are no Town services on that road and they had to purchase a plow as well so they need additional space for 2 vehicles, a plow, and plow truck. He then presented the new set of plans to the Board and the Assistant showed the original plans submitted with the application so they could compare changes made.
Mr. Holmes asked about the size. Mr. Engel responded it would be a 2 story garage 32x28 feet with gable ends that are 32’. He added that there would most likely be power and water. Ms. McEwen asked if the water would be hooked into the current septic and Ms. Nelkens asked how easy it would be for the applicant to change the garage into a residence. Mr. Engel said they hadn’t gotten to the water part at all yet so he was not sure if it would be current septic or if he would have to do anything new, but that there is no intention or desire to change it into a residence and there is no heat being installed. Mr. Engel added that the current house is roughly 800 sq feet and they raised it and put a basement underneath but need room for cars and tools.
Ms. McEwen asked what the need for the water in the garage is. Mr. Engel said that he has hobbies and it would be nice to have a bathroom and sink to wash up and use when working in the garage. Ms. Nelkens remarked that the applicant will need heat if he plans on having running water.
Chair Kendall opened the comments from abutters.
Assistant read a letter in favor from the abutters who own Map 201 Lot 041.
Mr. Glenn Noble who represents 121 Mountainside Drive was there in person and spoke in favor of the application saying that what the applicant is asking for is now oversized for their lot and that they are only asking for 4-5 Ft into the set back.
The Assistant read comments from department reviews for Police, Fire, and Conservation Commission. Police and Fire had no concerns or comments, Conservation Commission commented that they could move the garage further back from the side yard setback and not require the variance.
Chair Kendall closed the Public Hearing at 7:39 PM and moved into deliberations
Deliberations:
Ms. Nelkens asked what the response to moving the garage closer to the house made by Conservation Commission. Mr. Engel responded that they favor moving it closer to the house but was worried about impact to undisturbed land with the State so their designer did it this way. When he received the comments from Con Com Mr. Engel contacted the State and they were ok with moving it a little closer so that is why he now only needs about 4 feet vs the original plan. Chair Kendall said if they moved it that additional 4 feet they wouldn’t need a variance at all. Mr. Engel said that they didn’t want to disturb anymore area and create a larger impact. Chair Kendall asked if they could reduce the size then of the garage, and Mr. Engel said they are not willing to do that for the needs they have and that there are elevation issues on the lot.
Chair Kendall explained the Board will now discuss each of the 5 criteria, and then take a vote to see if the Board feels he met all 5 criteria for approval.
The Assistant then read each criterion and the applicants responses:
Criteria 1: The variance will not be contrary to the public interest because:
No obstruction of view, not in traffic lane or right of way. No obstruction of direct sun to other property.
Ms. McEwen personally felt there needs to be clarification on the ROW issues. Mr. Holmes said to determine if they met the criteria first and then deal with the side setback during the conditions part after if the application is approved. The Assistant, Ms. McEwen, and Chair Kendall spoke on the site yard setback. It was determined that if the Building Inspector determines they need a variance for the ROW once they submit the new plans to him for the BP then he will send them back to the Board for another variance.
Criteria 2: The variance is consistent with the spirit of the ordinance because:
Garage blocks nothing for view of lake or right of way navigation or hazard to view of right of way traffic.
Ms. McEwen asked the question on how does the Town define a garage, and if it is standard to have water in it because it could become a living unit down the road. Chair Kendall explained that a garage is considered an accessory structure and that the ZBA is not here to determine anything other than the 20’ foot side yard setback. There was a conversation between Chair Kendall and Ms. McEwen and they disagreed with this.
Criteria 3: Substantial justice is done by granting the variance because:
Need to have garage. Winter is hard to clear pathway to exit. We are retired unable to keep up with snowstorms to have a vehicle ready to move if needed.
Chair Kendall mentioned how there has been no objection from abutters. Mr. Holmes added that he is mainly concerned about keeping protection of the ROW for the purpose of snow removal. Ms. McEwen mentioned that this also applies to the first criteria.
Criteria 4: the values of surrounding properties will not be diminished because:
It will increase surrounding home values. Garage will match aesthetics of the newly renovated home.
The Board did not have any concerns or comments on criteria 4.
Criteria 5: Literal enforcement of the provisions of the ordinance would result in unnecessary hardship. (A) For the purposes of this subparagraph, “unnecessary hardship,” means that, owing to special conditions of the property that distinguish it from other properties in the area: (i) No fair and substansital relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property because: Garages and outbuildings are on most residences that are occupied year round around the lake. And (ii) The proposed use is a reasonable one because: We need a garage and storage of needed machinery to maintain property, to clear way of snow and ice to roadway. Retirement Home.
Ms. Nelkens asked what the uniqueness of this property was compared to others around it. Chair Kendall answered that the surrounding properties are very steep. Ms. McEwen added that Mr. Engel’s has a much larger lot and the ROW is further from their house and therefore the applicant has the ability to move and accommodate a garage more than others. Mr. Engel added that they purchased 2 lots 6 years ago but merged them into one. Ms. Nelkens asked how does this meet criteria 5? Ms. McEwen said that how the application is written for what they are requesting is a garage and that she objects to them needing water. Mr. Engel responded that if the water is such an issue he will just pull it from his plans. Mr. Parks disagreed with this as the owner is here for a side yard setback and not water approval. Ms. Nelkens asked the question again on how their property is unique to the surrounding properties. Mr. Holmes explained that because it is like the surrounding properties and that those properties have garages it would be “undue hardship” to not allow them to have a garage like the others. Chair Kendall explained that the owner was already aware of these things about the property, and Ms. Nelkens and Chair Kendall had a further discussion on what makes the property unique. Mr. Engel added that he needs to keep a specific percentage of the property undeveloped and stay within the boundary given by NHDES. His neighbors have garages and he gave some examples but his direct abutters do not because those properties are seasonal summer camps. Chair Kendall asked Mr. Engel if the variance was not approved, if he would then change the size in order to not need a variance and he said if he had to he would but would prefer not to.
Ms. McEwen directed to the Chair that the applicant is willing to make things more compliant and state that he doesn’t have to have water and Chair Kendall asked Ms. Ogilvie to respond to the concerns about water that Ms. McEwen has. Ms. Ogilvie responded that it is not appropriate to address if he has water or sewer because it is not mentioned in the definition of a garage for Antrim and that garages are permitted as accessory structures. She added in her experience she has not known of Town’s requiring a garage not have water. She went on to say that the ZBA cannot determine if it will be future living space because the application is only for a side yard setback.
Ms. McEwen said that Francestown has it specifically in their ordinance and Ms. Ogilvie responded by saying it is not relevant to the application before the Board.
Ms. Nelkens expressed that she didn’t see the hardship. Ms. McEwen asked if the applicant can demonstrate why they can’t be within the 20’ setback. Mr. Engel responded that his truck is 21 Ft long and the garage would be 28 Ft long and if he shortens it then he won’t be able to get his truck in. The width is 32 Feet because they have a plow, tractor, and 2 vehicles so the minimum size needs to remain what is on the application. Ms. McEwen asked if the designer said it would not get approval from the State if it was changed. Mr. and Mrs. Engel responded that with elevation and impact to soil the designer said that this was best.
Chair Kendall once again stated that this is for a side yard setback and explained why that setback is there, and that the proposed use is reasonable and a 4 foot encroachment seems reasonable. Ms. Nelkens again stated that she did not agree with the applicants’ hardship but agreed with everything else. Ms. McEwen said that she would feel better if the designer explained themselves on why it has to be in that exact spot instead of taking the applicants word for it. Mr. Engel responded that he didn’t tell the designer where to put it, as it would have been better for it to be next to the house, and that he took the designers word for when they designed it.
Mr. Holmes and Chair Kendall asked that the Board move forward.
Motion: At 8:20 PM Mr. Holmes motion to move to vote on the variance. A discussion ensued and at 8:20 PM Mr. Parks seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Abstained,” Christopher Parks, “Aye,” and Janet McEwen, “No.”
The motion PASSED 3-1-1
Motion: At 8:22 PM Mr. Holmes made a motion to approve the application based on the plans provided by RCS Designer dated 4/10/2021, and Mr. Parks seconded the motion at 8:23 PM.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Abstained,” Chris Parks, “Aye,” and Janet McEwen, “No.”
The motion PASSED 3-1-1
Motion: At 8:25 PM Mr. Holmes made a motion to require a 10’ foot setback from the ROW, Mr. Parks seconded the motion at 8:25 PM.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye”, Shelley Nelkens, “Aye,” Chris Parks, “Aye”, and Janet McEwen, “Aye.”
The motion PASSED
The applicants and Board thanked each other for their time, and a NOD will be sent to them once it is signed.
II. Public Hearing: Amendments to the ZBA Bylaws for 202
The Assistant Read the Public Notice. The Chair asked if there was anyone that wished to speak. Mr. Davis asked if there are any department reviews or comments requested from the BOS regarding these changes. The Assistant explained Department Reviews aren’t required for by law changes, and that the notice was posted but there was no request made to her for any information and no comments or input was received. Chair Kendall added that during the Public Hearing anyone can speak on it. Mr. Davis asked Ms. Ogilvie if it is proper for the ZBA to adopt different rules without any comments or input. Ms. Ogilvie said that it is and it is not a requirement to even have a Public Hearing but that she suggested having one where tonight was one. Mr. Davis thanked everyone.
After no further input, Chair Kendall closed the Public Hearing at 8:35 PM.
Motion: At 8:35 PM Ms. McEwen made a motion to approve the revision made at the previous meeting after the Board approved the changes, Mr. Parks second the motion at 8:35 PM.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Aye,” Christopher Parks, “Aye,” and Janet McEwen, “Aye.”
The Motion PASSED
III. Amend/Approve minutes from 3/30/2021:
Chair Kendall stated she wanted to add on to the Agenda under “Other Business” a chance for Mr. Clater to speak to the Board.
There were no changes made to the minutes from 3/30/2021
Motion: At 8:38 PM Mr. Holmes made a motion to approve the minutes from 3/30/2021 as written, at 8:38 PM Mr. Parks seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye”, Shelley Nelkens, “Aye,” Christopher Parks, “Aye,” and Janet McEwen, “Aye.”
The Motion PASSED.
IV. Other Business:
Mr. Clater introduced himself to the Board and gave a background of when he lived in Dublin to moving to Antrim this past year at the start of COVID. He went over his work experience and explained he has already started researching ZBA and the Town’s applications, Zoning Ordinance, and By Laws. He would be delighted to be on the Board.
Mr. Davis asked Mr. Parks if there was anything that could be done to keep him on the Board. Mr. Parks said at the moment no, but he might return in the future. Mr. Parks thanked Mr. Davis and the rest of the Board for their praise.
V. Planning Assistant Report:
The Assistant asked if the Board would be interested in having a double Public Hearing on 5/11/2021, the Board would prefer to space out the Public Hearings.
The Assistant informed the Board that the BOS met last night and did not appoint Mr. Clater yet, they would like an opportunity to meet him in person as well as Mr. Ott who is interested as well. The Board would also like to meet Mr. Ott since Mr. Clater came tonight and introduced himself.
Motion to adjourn: At 8:53 PM Mr. Parks made a motion to adjourn, at 8:53 PM Mr. Holmes seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Aye,” Christopher Parks, “Aye,” and Janet McEwen, “Aye.”
Meeting Adjourned: 8:54 PM
Respectfully Submitted,
Ashley Brudnick-Destromp
Assistant to Land Use Boards