Zoning Board of Adjustments

Meeting date: 
Tuesday, May 25, 2021

ZONING BOARD OF ADJUSTMENT
APPROVED MEETING MINUTES
May 25th, 2021
Public Hearing/Meeting

Members & Staff Present:               
Shelley Nelkens (Member), Diane Kendall (Chair), Janet McEwen (Member), Bob Holmes (Vice Chair), David Clater (Alternate), Carol Ogilvie (Planning Consultant), and Ashley Brudnick-Destromp (Assistant)

Absent: Michael Ott (Member)

Public Attendees: Tom Davis (BOS), Richard Edmunds Jr. (Applicant), Todd Bryer (with Applicant)

*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,” Michael Ott- Absent, Janet McEwen, “Here,” and David Clater, “Here.”

Chair Kendall appointed Mr. Clater to sit in for Mr. Ott.

The Assistant reported there was no attendance on 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.

  1. Public Hearing: Richard Jr. & Jeanine Edmunds for a variance from Article VII, Section C. (E) in order to build a garage within the 20’ foot side yard setback requirement on property located at 3 Bryers Lane, (Tax Map 245 Lot 013) in the Rural District.  

The Assistant read the Public Notice and confirmed it was posted correctly and Mr. Edmunds introduced himself and gave his proposal. Mr. Edmunds said he was looking to build a garage 26’ feet wide by 28’ feet deep with a 7’ foot breezeway attaching it to the house. He explained that the drawing shows the setback as 10’ feet, but after the site visit it was measured again and it’s 9’ feet. Mr. Edmunds said he talked to the neighbors and there were no issues, and his neighbor wants to do the same thing in the future and will also need a variance. He explained that the neighborhood is set up with cluster housing and with his paved driveway there is no other place to really put the garage.

Right now he said there are multiple sheds on his property to store vehicles, equipment, and recreational vehicles and the garage would be a visual improvement to the house and neighborhood.

The Chair opened up with questions from the Board.

Mr. Holmes said that it cannot be contrary to Public Interest including Public Safety, and that he is also concerned about the roof for the garage causing run off into the neighbors property.

Mr. Edmunds said that the roof would have a 12x12 pitch, and that the house currently has gutters that collect the rain water for his garden and he could do something similar for the garage. He added that he also wants the roof to drain towards the east side where the trees are because it’s currently a sand bank, and there would not be water issues.

Mr. Clater asked Mr. Edmunds to clarify if he meant from the gable end, and Mr. Edmunds responded yes.

Chair Kendall asked Mr. Edmunds about his mentioning of the neighbors intentions for a garage also, and that if they want to do the same thing then the future garage would cause for about 18’ feet between the two structures. Mr. Edmunds responded that would be correct, and that the neighbor is aware that they would need ZBA approval as well.

Chair Kendall asked Mr. Edmunds if the variance is not granted, what would his options then be? Mr. Edmunds responded that he would probably appeal the decision, as he had a similar experience before in Bennington and went through an appeal process. He continued that there is no other place to put it on the property without requesting a variance. Chair Kendall asked about the North side of the house, and Mr. Todd responded that is where the leach field is located as well as the power lines, to which Mr. Edmunds also added that would also require him moving his driveway and he is not willing to do that. Mr. Edmunds added that this plan is the most logical, but the breezeway could be narrowed about a foot but his wife is trying to utilize the space as much as possible for her plans.

Chair Kendall asked if there were any abutters that wished to speak in favor? There was no response and the Assistant had no letters.

Chair Kendall asked if there were any abutters that wished to speak against the application? There was no response and the Assistant had no letters.

Chair Kendall asked if there were any other interested parties? There was no answer

The Assistant read the 4 Department Reviews from the Police, Conservation Commission, Building, and Highway Department. The Assistant informed the Board that the review from Conservation Commission had come in that day. All reviews had no issues, and the Board asked if Fire had responded and the Assistant informed them no.

Chair Kendall closed the Public Portion at 7:17 PM and the Board moved into Deliberations.

Deliberations:
Chair Kendall read the applicants responses to the 5 Criteria, and the Board discussed each one.

Criteria 1: The variance will not be contrary to the public interest because: By building a garage I will have a place to put all of the things that are currently an eye sore to my neighbors like the kids bikes, lawn tractor, snow blower, and snowmobile. My neighbor is also going to build a garage.

Mr. Holmes was concerned about run off with water on the roof but that the Board can make it a condition that the applicant submit a plan for storm water management to protect the neighbors. Ms. McEwen and Ms. Nelkens said they had no problems. Chair Kendall mentioned how setbacks are there for provide space for emergency response, to provide better ventilation between buildings, and to make sure that lighting, ventilation, landscapes, and buildings have enough space.

Criteria 2: The variance is consistent with the spirit of the ordinance because: It doesn’t change the rural character of the neighborhood. It’s still a single family home. Many of the houses in the neighborhood have garages.   

The Board stated they felt this was covered and discussed with criteria 1 and all members expressed they were satisified with this criterion.  

Criteria 3: Substantial justice is done by granting the variance because: Our active family needs a place outside the basement to work on our projects which many times include fumes from paint or gasoline.  

Chair Kendall expressed how this criterion covers if the benefit to the applicant does not outweigh the abutters. Mr. Clater said that the applicant mentioned the neighbors also wanta a garage, and if that would cause an issue with the space between two garages. Several Board members responded that they can only go off of what is there currently. Mr. Clater said he was concerned about the negative impact on the neighbors being able to use their lot for a garage if the Board approves this garage first. Ms. Ogilvie said that if the neighbors do come in for an application in the future, the Fire Chief can weigh in on the matter at that point. She added a firewall could be implemented at that point. She concluded that Mr. Clater makes a good point, but not part of tonight’s application. Chair Kendall expressed that concern for another structure could be contrary to public interest.

Criteria 4: the values of surrounding properties will not be diminished because: A nicely sided garage and breezeway will increase the value of my home and my neighbors.

The Board agreed that this would not diminish property values.

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: Bryers Lane is a cluster housing development with ½ acre building lots and 18 acres of common land we share. There are 9 lots. We have limited places for driveways. And (ii) The proposed use is a reasonable one because:  The layout of the land doesn’t allow me to put my garage anywhere else. Most of the driveways are less then 20’ feet from the property lines.  

(B) If the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguished it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.

Ms. Nelkens asked about the common land. Mr. Edmunds said that past the house is a cul-de-sac with a swamp area, and that is the shared area. He gave a brief overview of the neighborhood. He also added that in the winter he starts his truck outside, and he is aware of how loud it is, and that the garage would help improve that issue as well.

Ms. McEwen commented that because of the nature of the subdivision being a cluster development, that the lot is not unique to the neighbors but half of them do have garages already, and anyone needing one would require a variance.

Mr. Clater asked about when the subdivision was done, if there was any discussions on what could or could not be on the lots. The Applicant responded that the subdivision was done in 1968, prior to Zoning. Ms. McEwen and Ms. Ogilvie commented that there is cluster housing that was adopted in 2008, but the subdivision was done prior to Zoning. The Assistant said she was not aware of any other variances requested in that neighborhood in the past 3 years. Mr. Holmes commented that it was originally supposed to be 9 2-acre lots, but when the developer realized the issue with the swamp it was changed.

Chair Kendall said the Board needed to decide of the applicant can’t achieve a garage by any other means, and if the use is a reasonable one. Mr. Clater asked about the applicant having a one bay garage instead of two. Mr. Edmunds said it is not a decision he can make alone without his wife. Chair Kendall said the other houses in the neighborhood have one bay garages.

Ms. McEwen said that would be an unnecessary hardship and how some people chose to only have a 1 bay garage but a 2 bay garage is reasonable for what Mr. Edmunds needs.

Chair Kendall said the Board needs to keep in mind that it doesn’t matter who the applicant is or what they store for their work. The Board then circled back to criteria #2. Mr Holmes reminded the Board to not make a decision today based off of a possible future development, and mentioned the last application that was approved did not have this issue discussed.

Ms. Nelkens commented on need vs want, and Mr. Clater asked if that matters at this point. Ms. Kendall said it is about the applicants needs to use their property and if the ZO setbacks restrict someone from a reasonable use then that is what matters.

Motion: At 7:44 PM Ms. McEwen motioned to move to a vote, Mr. Holmes seconded it at 7:44 PM
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”

The Board then discussed the conditions for the NOD if the variance is approved. The Assistant added a condition that the Applicant submit a storm water management plan and that the applicant build no closer than 9’ feet from the property line. There was already a condition on the draft that the applicant obtain proper permits and obtain to health and fire codes.

Motion: At 7:47 PM Mr. Holmes moved to approve the application for Richard Jr. & Jeanine Edmunds for a variance from Article VII, Section C. (E) with the attached conditions, at 7:47 PM Ms. McEwen seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”
The Motion PASSED and the applicant thanked the Board for their time.

  1. Review/Amend the drafted minutes from the site walk visit on 5/11/2021 and the Public Hearing on 5/11/2021:

Mr. Holmes stated he wanted the site walk minutes amended to show he was not there in agreement to end the meeting because he was on the other side of the property when the other Board members adjourned. The Assistant made the changes. There were several grammatical errors corrected in the Public Hearing minutes.

Motion: At 7:52 PM Ms. Nelkens motioned to approve both sets of minutes as amended.

Mr. Davis asked to speak. Chair Kendall expressed that the Board was in the middle of a motion. Mr. Davis said he wished to discuss the minutes with the Board before they approved them. Chair Kendall allowed Mr. Davis to speak.

Motion Withdrawn: At 7:53 PM Ms. Nelkens withdrew her motion.

Mr. Davis discussed line 217 on the drafted minutes from the Public Hearing with the Board. He felt he was misquoted in the minutes, and what he had actually said was that he was in agreement with Mr. Holmes, but felt his actions were inappropriate. Mr. Clater asked for clarification within the minutes in regards to the context. The Board discussed this with Mr. Davis, and their recollection is that how it was in the drafted minutes was what was said. The Assistant does not write verbatim, but she also added that her notes reflected what was in the draft as well.

Chair Kendall said that someone on the Board would need to make a motion to change those lines. There was no motion made.

Chair Kendall said that hearing no motion to amend the minutes, they will stay as written other than grammatical errors, and that the current conversation would be reflected in this evenings minutes.

Mr. Davis also asked to speak on another matter in regards to Staff Reports. Chair Kendall granted him permission. Mr. Davis asked the Assistant when the Staff reports were due back, and she responded the 20th. He added that the Conservation Commissions report came back that evening, the day of the Public Hearing, and how the Planning Board had already wrote to Mr. Beblowski about this because his reviews are detailed and important, and both the Board and applicant need proper time to review them prior to a Public Hearing. Chair Kendall said she did agree with this, but where the Planning Board already reached out and it happened again, that maybe the Town Administrator or the BOS should speak to Mr. Beblowski as a Town personnel if it continues. Mr. Davis and Chair Kendall both thanked each other for their time.

Motion: At 8:01 PM Ms. Nelkens motioned to approve the minutes from the 5/11/2021 Site Walk as amended, it was seconded at 8:01 PM by Ms. McEwen.
Roll Call Vote:  Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”

Motion: At 8:02 PM Ms. Nelkens motioned to accept the minutes from the 5/11/2021 Public Hearing as written minus the grammatical errors, at 8:02 PM Ms. McEwen seconded it.
Roll Call Vote:  Diane Kendall, “Aye,” Bob Holmes, “No,” Shelley Nelkens, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.” Mr. Holmes commented he voted No because he couldn’t remember verbatim what was said.

  1. Other Business:

The Assistant informed the Board that they had copies of the ZBA application with the changes they asked at the last meeting. She also mentioned how the Board did want exact measurements answered for Criteria 3, but if the applicant is reading the application it states clearly that is what is needed. She also added this is something they can just inform the applicants as well if they pass it in without it in the future. Mr. Clater asked about making it a requirement for typed answers where some of the handwritten ones have been difficult to read. Chair Kendall said that it can’t be a requirement because some might have limited access to technology.

  1. Planning Assistant Report:

The Assistant informed the Board that the next Public Hearing is June 15th at 7:00 PM and it is a double Public Hearing with a double site walk starting at 6pm with the Fieldstone representatives at one property and then immediately moving to the next. She also informed the Board that the Planning Board has a Public Hearing on June 17th for Antrim Storage, and that on June 3rd they have a workshop for driveway and Fire regulations.  

Motion to adjourn: At 8:09 PM Ms. McEwen made a motion to adjourn, and at 8:09 PM Ms. Nelkens seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Bob Holmes, “Aye,” Shelley Nelkens, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”

Meeting Adjourned: 8:10 PM

Respectfully Submitted,
Ashley Brudnick-Destromp
Assistant to Land Use Boards