Zoning Board of Adjustments
ZONING BOARD OF ADJUSTMENT
APPROVED MEETING MINUTES
June 15th, 2021
Public Hearing/Meeting
Members & Staff Present:
Diane Kendall (Chair), Janet McEwen (Member), Michael Ott (Member), David Clater (Alternate), Carol Ogilvie (Planning Consultant), and Ashley Brudnick-Destromp (Assistant)
Absent: Bob Holmes (Vice Chair), and Shelley Nelkens (Member),
Public Attendees: Tom & Joyce Davis (Self), Clifford Thornberry (Applicant on Zoom), Noel Bryant (Applicant on Zoom), Dennis & Belina O’Keefe (Applicant), Deb Capistran (Abutter), Tony Cinquegrana Jr. (Abutter),and Ray Bennett (Abutter)
*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
The Chair appointed Mr. Clater to fill in for Mr. Holmes
Roll Call Vote for Attendance: Diane Kendall, “Here,” Bob Holmes- Absent Shelley Nelkens-Absent, Michael Ott, “Here,” Janet McEwen, “Here,” and David Clater, “Here.”
The Assistant reported there was a quorum but not a full Board, and read off the names of those participating on Zoom.
Chair Kendall explained the process for the Public Hearing, and explained that with 4 members voting that a split vote results in a denial and the applicant has the opportunity to reschedule prior to opening the Public Hearing. After verifying with Ms. Ogilvie and speaking to Mr. Clifford and Ms. Bryant, the applicants decided to move forward with the presentation for now and will decide before the Public Hearing is opened if they want to reschedule.
I. Public Hearing: Clifford Thornberry & Noel Bryant for a variance from Article XI-A, Section Q in order to rebuild the existing non-conforming dwelling, improve driveway access, and construct a new garage within the Shoreland Protection Setback for property located at 15 Hillside Drive (Tax Map 214 Lot 055) in the Lakefront Residential District.
The Assistant read the Public Notice and confirmed it was posted correctly and Mr. Guida began the presentation for Mr. Thornberry and Ms. Bryant. Mr. Guida explained that the proposed dwelling will still have the same number of bedrooms and bathrooms so as to not increase use on the septic that was done in 2005 and approved by the State. He gave an overview of the plans and highlighted the area where the existing camp is. Mr. Guida went on to explain that this design has the least impact to soil and the building is a pedestal design for difficult sites. The current driveway is steep so the owners want to make a safer approach. All work is outside and is not encroaching anymore towards the Lake. Mr. Guida added that the applicants already have State approval for the State’s 50’ foot Shoreland setback. There are a few oak trees that are hanging over the house that will be removed, but there is no clearing towards the lake. Most of the construction will be done with a smaller crane to reduce impact and disturbance. In regards to the Town’s 100’ foot setback requirement, the existing dwelling is already within that setback and anything that is done to this property would require a variance because of that. Mr. Guida re-iterated that there are no additional bedrooms or bathrooms being added, and proceeded to go over the responses for the 5 Criteria.
Criteria 1: The variance will not be contrary to the public interest because: Granting the variance would allow for the upgrade of an existing 1900 dwelling and is in line with other existing dwellings on Franklin Pierce Lake. Due to the steep slopes of the existing non-conforming lot of record the proposed cantilever house is to be constructed with the same footprint of the existing non-conforming dwelling and proves for the environmental impact to be minimized to the greatest extent practicable to reduce encroachment towards the lake while providing for reasonable use of the property. The addition of the detached garage and associated driveway will allow for a safe accessing of the lot reducing the foot and vehicle traffic within the areas of steep slopes. These proposed improvements are permitted and approved by NHDES and would not adversely affect the water quality of aesthetics of the property.
Criteria 2: The variance is consistent with the spirit of the ordinance because: The stated purpose of the Shoreland Protection District is to minimize the degradation of shoreland and assuring retention of the benefits provided by such shoreland. Erosion control measures have been proposed in accordance with the SWQPA to minimize water pollution and protect wildlife habitat by the lake. Proposed tree cutting is limited to allow for the construction of detached garage and driveway while maintaining the natural beauty and scenic qualities to the greatest extent possible while still providing for safe use of the property.
Criteria 3: Substantial justice is done by granting the variance because: Granting this variance would allow for the rebuilding of the existing dwelling by permitting necessary building improvements that meet all regulations to the best extent possible given the location of the existing dwelling and steep terrain of the property. Tree cutting has been reduced to the greatest possible extent while still providing for safe use of the property. Granting this variance would do substantial justice because it would allow for the productive use of the property, and have no negative affect on the environment or the general public.
Criteria 4: the values of surrounding properties will not be diminished because: The proposal maintains the existing residential use of the property. The proposed rebuilt dwelling and garage are in keeping with the aesthetic of neighboring properties on Franklin Pierce Lake and provide a lot with additional living space and improved structures.
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 substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property because: The proposal seeks to maintain the existing footprint of the dwelling while providing for reasonable use of the property. The cantilever structure of the dwelling provides for the environmental impact to be minimized to the greatest extent practicable while maximizing the living space. The construction of a new garage and driveway allows for safe continued access to the lot due to the steep terrain. The proposed dwelling and garage require minimal alteration of the site. And (ii) The proposed use is a reasonable one because: The proposed project is in keeping with the aesthetic and function of other houses in the Shoreland Protection District. The existing size, topography and nature of the land itself creates and inherent hardship with the steep terrain for the necessary maintenance and renovation of the existing dwelling on a non-conforming lot of record. The project does not propose any degradation of shoreland, as is the stated purpose of the Shoreland Protection District.
(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.
This concluded Mr. Guida’s presentation and the Chair asked the Board to direct their questions or comments.
Mr. Clater asked if it was a modular design. Mr. Thornberry responded saying it is pre-fab walls and roof panels that are being lifted by the small crane and are factory made with insulation. Mr. Clater asked about the foundation as he expressed concerns over the sandy soil and a significantly larger building then what is currently on site. Mr. Guida responded that it is sandy but compacted native soil so they will excavate down 4 Ft and have footing with walls on top. Mr. Clater asked to compare the square footage of the current dwelling vs the proposed, as he was concerned about additional residents living there. Ms. McEwen responded and said that it is the same number of bedrooms, and Chair Kendall said the question was not relevant to the application. Mr. Thornberry responded that it is just the two of them in case the Board wanted to know. Mr. Clater asked to verify if it is an attached or detached garage. Mr. Thornberry responded that is only attached by a covered walkway for rain purposes that is roughly 5-6 FT wide.
Ms. McEwen asked what is the size of the new footprint. Mr. Guida responded that the original was 30 X 31’ and the proposed is 30 X 32’. Ms. McEwen followed up with how much impervious area is being impacted to which Chair Kendall also asked if the applicants were staying under the maximum 40% coverage in the Ordinance as well. Mr. Guida said that the State permit says it is 19.3%.
Mr. Ott had questions about the current road and driveway in regards to the slope and steepness. Mr. Thornberry responded that as part of the application they are improving Hillside Drive which is a private road that is currently in need of improvements to gain proper access. He went on to explain they are going to slope the road to reduce elevation and this will also benefit the neighbor on the left and anyone else who uses the road. Mr. Ott mentioned the garage would be on 810 Ft elevation and the road on 830 Ft elevation according to the plans, and asked if this is a substantial change. Mr. Thornberry responded that they are going to drop about 4 Ft on the road and raise the garage 4 Ft and that the garage will have a basement so there is a lower level in the back.
The Chair asked if there were any further questions from the Board, there was no response. The applicants talked to the Board and informed them they would like to wait for a full Board. The Chair made them aware there is never a guarantee but they can schedule again.
Motion: At 7:41 PM Ms. McEwen made a motion to reschedule for June 22nd.
There was discussion and it was determined that the 22nd and the 29th of June did not work for a full Board outcome.
Motion Withdrawn: At 7:43 PM Ms. McEwen withdrew her motion.
Motion: At 7:43 PM Mr. Ott made a motion to continue the Public Hearing for 15 Hillside Drive to Tuesday, July 6th at 7:00 PM, at 7:43 PM Ms. McEwen seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Michael Ott, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”
The Board took a few minutes to allow breaks and set up of new plans for the next Public Hearing.
II. Public Hearing: Dennis & Belina O’Keefe for a variance from Article XI-A, Section Q in order to construct a new 672 square foot attached garage with driveway access, expand a portion of the existing deck, and enclose a portion of the deck on a pre-existing non-conforming structure within the Shoreland Protection Setback for property located at 11 Jackman Shores Rd (Tax Map 206 Lot 007) in the Lakefront Residential District:
Chair Kendall gave the applicants the opportunity to reschedule as well, they responded they wish to proceed this evening with the full Public Hearing.
The Assistant read the Public Notice, confirmed it was posted and advertised correctly, and abutters notices were sent out.
Mr. Guida opened up the presentation saying that the 28 X 24 Ft garage is the only expansion and there is no tree cutting involved in the project. The roof runoff will have gutters to direct to a rain garden and there will be a silt fence and erosion protection in place. He went on to say there is not a lot of energy driving runoff, and the imposed impervious impact is minimal. The current impact is 22.3% and the end result would be 25.5% so they are well underneath the 40%. The septic was approved in 2021. Mr. Guida also mentioned the ROW on the lot that belongs to Mr. Bennett and that it is 20 Ft wide. Mr. Guida said that there are basins and rain gardens that address the concerns mentioned in the Conservation Commission Department Review.
The Assistant asked Ms. Ogilvie if it was ok to move forward where the applicant does not have official State approval yet even though an application was submitted as the ZO was updated this year that made it a requirement. Ms. Ogilvie mentioned it can be a condition on the NOD. Mr. Guida also commented that anything under 20% of impact does not require a storm water management plan, but the applicants have one regardless.
Mr. Guida then went over the answers for the 5 Criteria:
Criteria 1: The variance will not be contrary to the public interest because:
Granting this variance would allow for the upgrade of the lot and is in line with other existing garages and driveways on Franklin Pierce Lake. Due to the existing gravel parking lot adjacent to Jackman Shores roadway the garage and driveway provide a safe ability to access the lot without the need for parking so close to the roadway, reducing congestions on an already narrow roadway. The addition of storm water collection system with gutters and infiltration basins provides for the environmental impact to be minimized to the greatest extent practicable to reduce encroachment towards the lake while providing for reasonable use of the property. The enclosed portion of the deck would provide additional multi-season living space while not increasing the footprint of the existing non-conforming dwelling. These proposed improvements are permit pending by NHDES and would not adversely affect the water quality or aesthetics of the property.
Criteria 2: The variance is consistent with the spirit of the ordinance because: The stated purpose of the Shoreland Protection District is to minimize the degradation of shoreland and assuring retention of the benefits provided by such shoreland. The addition of the proposed storm water collection system and having an enclosure for vehicles further reduces the contamination of the lot and adjacent Franklin Pierce Lake. Erosion control measures have been proposed in accordance with the SWQPA to minimize water pollution and protect wildlife habitat by the lake. There is no proposed tree cutting or vegetation removal for the construction of attached garage, driveway, and deck enclosure while maintaining the natural beauty and scenic qualities to the greatest extent possible while still providing for safe use of the property.
Criteria 3: Granting the variance would do substantial justice because: Granting this variance would allow for the construction of a new attached garage, driveway and deck enclosure by permitting the necessary building improvements that meet all regulations to the best extent possible given the location of the existing dwelling and limited size of the existing non-conforming lot of record. Granting this variance would do substantial justice because it would allow for the productive use of the property, and have no negative affect on the environment or the general public.
Criteria 4: Granting the variance would not diminish the value of surrounding properties because: This proposed project maintains the current residential use of the property while upgrading the lot to similar standards of the surrounding neighborhood. The proposed construction of the garage, driveway, and deck enclosure are in keeping with the aesthetic of neighboring properties on Franklin Pierce Lake and provide a lot with additional living space ad improved structures.
Criteria 5: Literal enforcement of the provisions of the ordinance would result in unnecessary hardship. A. Describe special conditions of the property that distinguish it from other properties in the area: (i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property because: (i) The proposed construction allows for reasonable use of an existing non-conforming lot of record. The proposed garage allows for safe storage fo vehicles and reduces congestion along Jackman Shores. Having an enclosure for parked vehicles provides for the environmental impact to be minimized to the greatest extent practicable while maximizing the living space. The addition of a storm water collection system with roof run off collecting gutters and infiltration basin further reduces the environmental impact of Franklin Pierce Lake. The proposed garage, driveway, and deck enclosure require minimal alteration of the site with no tree cutting or vegetation removal. (ii) The proposed use is a reasonable one because: (ii) The proposed project is in keeping with the aesthetic and function of other houses in the Shoreland Protection District. The existing size, topography and nature of the land itself creates an inherent hardship for the necessary maintenance and development of the non-conforming lot of record. The project does not propose any meaningful degradation of shoreland, as is the stated purpose of the Shoreland Protection District.
Mr. Guida concluded his presentation for 11 Jackman Shores Rd, Chair Kendall then asked if there were any questions from the Board, there were none. The Chair opened the Public Hearing at 8:01 PM.
The Chair asked if there were any abutters who wished to speak in favor? Mr. & Ms. Davis said they were not abutters but they are neighbors and they think what the O’Keefe’s are doing is great for the neighborhood and Town and give their full support. The Assistant then read 3 abutters letters that will be attached to these minutes that were all in favor of the application. There was no comment from the Parks and Rec Department, and the Assistant read the review from the Conservation Commission. The Chair asked if there were any abutters that wished to speak in opposition. There was no answer. Any other interested parties or comments? There was no answer.
The Chair closed the Public Hearing at 8:07 PM and the Board moved into deliberations.
Deliberations: The Board had no concerns with criteria 1-4. Chair Kendall gave a brief overview of the purpose of the Ordinance being to protect water quality, and in her opinion the applicant has a storm water management system and are well under lot coverage. Mr. Clater asked to verify the Conservation Commission’s comments, and if the main concern was of building or if was storm water management. Chair Kendall responded how she interpreted it, the main concern is storm water management but it is tied together.
The Board went over the conditions for the drafted NOD if the application is approved. There would be 3 conditions as well as the standard State requirement that an application needs to be acted upon within 2 years of the date approved. The Board also had the wording changed, as Mr. Guida had submitted the application incorrectly saying the deck was being expanded and covered but it is not being expanded.
Motion: At 8:22 PM Ms. Nelkens motioned to approve the application and grant the variance, at 8:22 PM Mr. Ott seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Michael Ott, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”
The variance was GRANTED.
III. Review/Amend Drafted Minutes from the 5/25/2021 Site Visit and Public Hearing:
Motion: At 8:25 PM Ms. McEwen made a motion to approve the site visit minutes from 5/25/2021 as written, at 8:26 PM Mr. Clater seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Michael Ott, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”
Motion: At 8:29 PM Ms. McEwen made a motion to approve the minutes from the Public Hearing/Meeting on 5/25/2021 as written, at 8:29 PM Mr. Clater seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Michael Ott, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”
IV. Planning Assistant Report:
The Assistant informed the Board that the next Public Hearing is now scheduled for July 6th at 7:00 PM.
V. Other Business:
Chair Kendall wanted to quickly verify the ZO is correct online, the Assistant and Ms. Ogilvie explained that it counts the table of contents as a page online so it can get confusing but it is in order correctly.
The Chair reminded the Board there is no discussion with applicants or other Board members directly about an application. She encouraged the Board to review this specific section of the Ordinance since there are a lot of variances being requested for it. There was further discussion on if Planning Board will make Shoreland a Conditional Use Permit (CUP). Ms. Ogilvie will draft a letter to the Planning Board from the ZBA recommending they consider it and the reasons why. There was a discussion on future training opportunities, the Assistant will email some webinars out to the Board.
Motion to adjourn: At 8:43 PM Ms. McEwen made a motion to adjourn, and at 8:45 PM Mr. Ott seconded it.
Roll Call Vote: Diane Kendall, “Aye,” Michael Ott, “Aye,” Janet McEwen, “Aye,” and David Clater, “Aye.”
Meeting Adjourned: 8:45 PM
Respectfully Submitted,
Ashley Brudnick-Destromp
Assistant to Land Use Boards