Zoning Board of Adjustment                                                      

ZONING BOARD OF ADJUSTMENT

TOWN OF BARNSTEAD

TOWN HALL

NOVEMBER 16, 2009 @ 7:00 P.M.

MINUTES

Zoning Board of Adjustment Minutes from 11/16/2009

Approved as Written 6/21/2010

CALL TO ORDER: Mark Sargent, chairman, called the meeting to order at 7:00 P.M.

ROLL CALL: Mark Sargent, chairman, Eileen Murley, vice-chair, Kaye Alguire, David Brown, Gordon Preston, selectmen’s rep, Rick Duane, James Fougere, alternate and Paula Vardaro, recording secretary

Mark Sargent read: CASE No. 0709-196 which has been continued: Starview Properties, LLC – Manager - Michael Farinola, 192 Parade Road, Barnstead, Map 6, Lot 27, is requesting an appeal to an administrative decision to Article 4, Section 4-1 Lot Size and Article 4, Section 4-2.02 Lot Accommodations of the Town of Barnstead Zoning Ordinance. The applicant is proposing to rebuild a seasonal cottage for the purpose of renting it as a single-family unit.

Mark Sargent said this has been continued a number of times, we have received an e-mail from Mr. Farinola stating he understood he would have to re-notify abutters when he eventually came back. He did not have the time these days since he has been busy renovating other properties in other communities. Hopefully in the spring. Mark Sargent asked the Board if they wanted to table it until a later date and keep it on the agenda or deny it without prejudice and he would have to make a new application.

Rick Duane made a motion to deny it without prejudice.

Kaye Alguire seconded the motion.

The Board voted unanimously to deny without prejudice.

A notice will be sent to Mr. Farinola that the case will not be carried on the agenda; he will have to re-apply when he is ready for the case to be heard.

Mark Sargent read: CASE No. 0909-198 which has been continued: Robert Young, 943 North Barnstead Road, Barnstead, Map 16, Lot 46-1, is requesting a variance to Article 4, Section 4- 2.05 (side setback) of the Town of Barnstead Zoning Ordinance. The applicant is proposing to build a home 26’ x 60’ which does not meet the minimum 30’ side setback as required by the Barnstead Town Ordinance.

Mark Sargent said they had plenty of discussion last month and the Board did a site walk on October 31st. He wanted to open up the public hearing again to give the applicant and the abutters another opportunity to speak.

Mark Sargent opened the public hearing at 7:05 P.M.

Alvin Nix, the attorney representing Robert Young, said the concern was the proximity of the abutter’s home. What Mr. Young was going to do to the lot is not going to put the house virtually in the face of the neighbors. What he has there are two sheds that are 250 square feet – which are allowable, but a cease and desist order was put on them. Alvin Nix asked if there was any more information that the Board needed.

Mark Sargent said the Board asked Robert Young to clarification of dimensions of the proposed house and the setbacks, because Mr. Young wasn’t sure exactly what he was asking for. He pointed out that they have received a new sketch showing the North East property line at 22.1 feet, North West - 15 feet, South West - 29 feet and the South East - 19.1.

Gordon Preston pointed out that the storage shed that was built his intend not for it to be a storage shed.

Rick Duane asked if this exists - are we giving a variance for the storage shed or just the proposed house.

Mark Sargent said the variance will be giving for all of it - because it will become part of the house.

Jeff Godfrey said he had a motion from the court over a line dispute. He said the Zoning Board can’t make a decision for 120 days. That’s when the court will make their decision.

Mark Sargent said they had a current survey.

Jeff Godfrey said the Board can’t make a decision until the property line dispute has been settled. He also said two years ago he came before the selectmen and now the Zoning Board. All he was asking was the Board not make a decision for 120 days until the petition to the court goes through.

Rick Duane asked if the court order referenced the survey.

Jeff Godfrey said yes, and it’s registered with Belknap County. He added as the Zoning Board you better know where your line is. How can they make a decision on this until this is cleared up?

Dean Dalpe asked if there was a septic system in place.

Mark Sargent said there was an approval for the septic system, but it has lapsed.

Alvin Nix said no the system has not been installed, but they would renew the plans.

Robert Young said he received the paper work Jeff Godfrey referenced, but it didn’t mention anything about him stopping what he was doing. He mentioned that he had a valid survey, and Jeff Godfrey needed to have his lot surveyed too.

Mark Sargent closed public hearing at 7:12 P.M.

Eileen Murley said at the site walk she couldn’t see the claims that Mr. Young would be infringing upon the neighboring properties. There seemed like there was some distance between the properties.

Both David Brown and Mark Sargent agreed.

Gordon Preston said they have known for 3 or 4 years that this is a peculiar piece of land. He knew when he bought it that it was narrow. He put on a shed and another shed with a concrete structure and the ultimate goal was to build a house. Then he came to the Zoning Board so that we can grant a variance to dig him out of the hole. Gordon Preston said he wasn’t comfortable with that. What about the 5 criteria?

David Brown said the sheds can be built out of concrete as long as it’s smaller than 250 square feet – and he doesn’t need a permit.

Rick Duane also added that the shed could also be put right on the property line.

Eileen Murley asked if they wanted to go through the answers for the 5 criteria.

The Board agreed and decided to discuss each one individually.

Eileen Murley read the following answers #1- The building to be constructed will be a residence and will be similar to other surrounding properties.

Mark Sargent agreed that it was pretty straight forward and couldn’t see how it would diminish the surrounding properties. It would be similar to the other structure around there that are visible from other properties.

The Board agreed.

#2 - The building will be a residence, it will not be in close proximity to other residences and it will allow a normal and acceptable use of this unique lot.

Eileen Murley said it was consistent with her observation of the lot. It doesn’t seem to be in close proximity with the other properties.

David Brown said it was further away from the minimum distance.

#3 – This is a home similar to what is on the other abutting and surrounding properties and it will allow a reasonable and acceptable use of this lot of land.

Mark Sargent cited a case many years ago regarding a unique piece of property on the water, that you couldn’t do anything without a variance. The variance was given, but was challenged in court. The Zoning Board won the case. There are many similar conditions with the two properties. Without a variance there would be nothing that could be done on this property except put a 10 foot wide house on it. He asked if a 10 foot wide house was reasonable use of the property, he didn’t think so.

#4 – Residential homes are allowed in this zone and the building will not be close to the road or other abutting structures.

Mark Sargent said the intent of the ordinance is to prevent crowding on properties. It is set back far enough from the road.

David Brown said it’s not crowding his neighbor’s houses or other areas.

#5 - Hardship: Area Variance – a. The property at the building location is only 70 feet wide leaving only 10 feet for construction. Plus building in this location will create a safe play place for the children. b. Building a home 10 feet wide in 2009 is contrary to modern safe living standards.

Eileen Murley said the special condition is the width of the property.

Gordon Preston said he didn’t agree with the safe play area for the children and 10 feet wide being an unreasonable width.

David Brown disagreed – he felt that a 10 foot wide home is unconventional – but safety was a stretch.

Mark Sargent said there are smaller homes, but 10 feet probably isn’t the way to go.

Eileen Murley added she wouldn’t want to live and raise children in a 10 foot wide home.

Kaye Alguire added that trailers are wider than 10 feet.

Mark Sargent said Mr. Godfrey brought up a valid point about a variable property line or the possibility of it. He thought a variance would have to be made very specific regarding the dimensions from the property line. It could change the whole outcome from a 26 foot wide building to something else.

David Brown said if there is a court case, independent of what we do, there would be a stay of consideration if the property line is or isn’t changed. Then a request for a new variance would have to be submitted.

Mark Sargent said the point is the variance should be very specific that its 22.1 feet in the northeast corner etc. – no matter where the property line is - it is specific.

David Brown asked if they should vote on the 5 criteria individually.

Mark Sargent said no – he didn’t think they needed to.

Rick Duane questioned the original intent of the lot.

Mark Sargent said according to the town attorney, that was not an issue for this Board. That’s a title issue.

Rick Duane asked if this was approved would it be adding another layer of problems.

Mark Sargent said he didn’t know. He said if the Board was uncomfortable making a decision tonight he would call the attorney and table the case again.

Rick Duane said the attorney was consulted before.

Mark Sargent said yes, he spoke with him about 1 year ago regarding this case and he said the Zoning Board could grant a variance.

James Fougere asked if a proviso could be put on the deed regarding the property line and a distance variance.

Mark Sargent said he could talk with the town attorney about that.

James Fougere asked what if the court case shrinks the lot and makes the lot smaller.

Gordon Preston said he was uncomfortable with this because it’s in the courts and he felt they were only compounding the issue if the lot line is changed if we to grant variance.

Kaye Alguire asked if Jeff Godfrey went to court two years ago, why it is taking so long to resolve this issue.

David Brown said the courts are making the Zoning Board do their work for them.

Jeff Godfrey said he came before the zoning board 2 years ago, they said it was a civil matter.

David Brown asked if they could give a variance for 15’ from the northwest corner 22.1’ from the northeast corner, 29’ from the southwest corner and 19.1’ from the southeast corner and from whatever lot line becomes a legal lot line.

Mark Sargent didn’t agree, but asked if there was a seconded. He added that the town’s attorney should be consulted. We don’t want to do something that we will be sued for.

There was no seconded the motion died on the table.

James Fougere agreed that the site wasn’t the issue it’s the lot that is weird.

Eileen Murley asked if they should spend some time on questions for the attorney.

Mark Sargent agreed.

Eileen Murley asked if they grant this variance and the lot line is adjusted by the court decision would Mr. Young be responsible for removing the obstructions that were constructed in accordance with the variance they have granted.

David Brown asked for evidence of the actual court case. He also stated that Jeff Godfrey presented this as if it was an open case and we have to wait until it is settled to make our decision. A court order means that the case has been before the judge and there is a ruling.

Jeff Godfrey handed Mark Sargent his copy of the paper his attorney wrote for the court.

Mark Sargent commented that the paper wasn’t signed by the court.

Jeff Godfrey said he was waiting for the courts to sign it.

Mark Sargent read the letter written by Jeff Godfrey’s attorney, the court favoring the petitioner - stating findings. He referenced the perpetual easement of the septic system for maintenance, the boundary line as surveyed by Donald Poppema in 1982, driveway removal on his property, removal of the stone wall, removal of the pond and  restoration of the area, the fence to be 2’ from property line, and the graffiti removal from the fence and painted over.

Mark Sargent asked if we had the copy of Donald Poppema’s plan – we did not. The property line might come out to match the current survey or the earlier plan.

Eileen Murley asked if the survey we had in hand is current with the Poppema survey.

She asked if what Mark Sargent read was the draft order and are they waiting for the court order to accept the proposed language and sign it.

David Brown asked if they have to wait for that.

Mark Sargent said they can either offer a motion or table it and seek the advice from the town attorney.

David Brown asked if there was any reason to believe they would get different advice from the attorney now.

Rick Duane said he would be surprised if the attorney gave different advice.

Kaye Alguire said the way David Brown proposed the motion, it wouldn’t matter if they changed the boundary lines it was very specific.

David Brown said that was his intention.

Eileen Murley said the catch all at the end of the motion was what she struggled with– from whatever is determined to be the boundary line by the court. Maybe we could put on a provision that no construction can occur without the court’s ruling.

David Brown said the survey exists and we are referencing that survey. He added that there could be court cases for years and it’s not what this Board should be concerned with. We can put a stay of construction on it until the court rules.

Eileen Murley asked if we could approve using dimensions.

Mark Sargent advised not to tie the approval to the court case only the property line. It’s hard to say how the court will sort this out.

Eileen Murley made a motion to grant a variance 15’ from the northwest corner, 22.1’ from the northeast corner, 29’ from the southwest corner and 19.1’ from the southeast corner.

David Brown seconded the motion.

Rick Duane asked if he can’t meet the requirement does he have to come back and seek another variance.

Eileen Murley said he could adjust the width of his house.

Rick Duane said so those are minimums.

Mark Sargent said the variance should be very specific.

Kaye Alguire asked if you could add “a minimum”.

David Brown said to change the motion to add minimum.

Eileen Murley made a motion to grant a variance of a minimum 15’ from the northwest corner, a minimum of 22.1’ from the northeast corner, a minimum of 29’ from the southwest corner and a minimum of 19.1’ from the southeast corner.

David Brown seconded the motion.

Gordon Preston said the civil issue will not go away. It’s compounding the previous deeds.

Mark Sargent called for the vote.

The Board voted as follows:

Rick Duane                No             Eileen Murley    Yes

Gordon Preston           No            Kaye Alguire      Yes

David Brown               Yes

Mark Sargent said the variance has been granted. With any variance granted by this Board there is a 30 day appeal period. You will receive a notice of our decision within 5 days. Any aggrieved party has the right to appeal the decision back to this Board

OLD BUSINESS: Eileen Murley said a meeting of the subcommittee is scheduled for Tuesday evening November 17 to discuss the issue of two residences on properties.

Mark Sargent said he, Rick Duane and David Brown attended the last meeting of the Planning Board. They discussed signs and driveways regulations along with the Zoning Ordinance. Paula Vardaro informed the Board that this Thursday, November 19th the Planning Board was having a work session to discuss the same issues and invited any of the Zoning Board members to attend.

MINUTES FROM 10/19/09 & 10/31/09: 10/19/09 minutes- Eileen Murley said on page 3 and 4 the word “council” should be changed to “counsel”.

David Brown made a motion to approve the minutes as amended.

Eileen Murley seconded the motion.

The Board voted unanimously to approve the minutes as amended.

10/31/09 minutes – Eileen Murley made a motion to approve the minutes as written.

David Brown seconded the motion.

The Board voted unanimously to approve the minutes as written.

ADJOURNMENT: Eileen Murley made a motion to adjourn the meeting.

David Brown seconded the motion.

Mark Sargent adjourned the meeting at 8:00 P.M.

Respectfully Submitted

Paula Vardaro

Recording Secretary

|Top

ZONING BOARD OF ADJUSTMENT

TOWN OF BARNSTEAD

SITE WALK

SATURDAY, OCTOBER 31, 2009 @ 8:30 A.M.

MINUTES

Zoning Board of Adjustment Minutes from 10/31/09 Site Walk

Approved as Written 11/16/09

CASE No. 0909-198: Robert Young, 943 North Barnstead Road, Map 16, and Lot 46-1.

ROLL CALL: Mark Sargent, chairman, Eileen Murley, vice-chair, Gordon Preston, selectmen’s rep, Rick Duane, David Brown, Kaye Alguire, James Fougere, alternate and Paula Vardaro, recording secretary.

The Board met at the Town Hall at 8:30 A.M. and proceeded to the applicant’s property at 943 North Barnstead Road. Jeff Godfrey, an abutter met the Board on his property. He showed the Board where his septic was on Robert Young’s property adding that they went to court last week and the court granted him an easement for his septic on Robert Young’s property. Jeff Godfrey also showed the Board just where the boundary lines were on his side and where the driveway was.

The Board proceeded up the long narrow driveway to where Robert Young wanted to build his home.

Robert Young told the Board the orange outline on the ground indicated the area where he wanted to build the house. He explained it would be attached to the last shed that was built. He told the Board the first shed that they saw is on a floating deck – so nothing could be attached to it. The second shed has a concrete foundation – so he would add the house to that.

Mark Sargent asked how many feet was he actually looking for, because the sketch he provided had one setback and the application asked for a different setback. He also added that the house seemed to be pictured on an angle from the second shed.

Robert Young said he wasn’t sure how much of a variance he could get on either side so the house had to appear on an angle.

Mark Sargent told Robert Young that the Board needed to see a clear sketch of the actual setbacks and where the house would be situated.

James Fougere agreed that the dimensions of the house and the setbacks needed to be clarified.

The Board agreed they would like to see a new sketch with the appropriate setbacks.

Respectfully Submitted

Paula Vardaro

Recording Secretary

|Top of page

ZONING BOARD OF ADJUSTMENT

TOWN OF BARNSTEAD

TOWN HALL

OCTOBER 19, 2009 @ 7:00 P.M.

MINUTES

Zoning Board of Adjustment Minutes from 10/19/09 Meeting

Approved as Amended 11/16/09

CALL TO ORDER: Mark Sargent, chairman, called the meeting to order at 7:00 P.M.

ROLL CALL: Mark Sargent, chair, Eileen Murley, vice-chair, Gordon Preston, selectmen’s rep. Rick Duane, Kaye Alguire, David Brown, James Fougere, alternate and Paula Vardaro, recording secretary

Mark Sargent read: CASE No. 0709-196 continued: Starview Properties, LLC – Manager - Michael Farinola, 192 Parade Road, Barnstead, Map 6, Lot 27, is requesting an appeal to an administrative decision to Article 4, Section 4-1 Lot Size and Article 4, Section 4-2.02 Lot Accommodations of the Town of Barnstead Zoning Ordinance. The applicant is proposing to rebuild a seasonal cottage for the purpose of renting it as a single-family unit.

Mark Sargent said we have received a correspondence from Michael Farinola requesting the case be tabled again. He told the Board that is was his unwritten policy after a third continuance he felt it was only fair that if the applicant requests at the November meeting to table the case once again, that all of the abutters are re-notified. Mark Sargent said the applicant doesn’t show up for the hearing and he didn’t think it was fair that the abutters do continuously month after month. He then asked for the Boards opinion.

Eileen Murley suggested this policy be put into the Rules of Procedures.

Mark Sargent agreed.

Kaye Alguire made a motion to continue the case until November 16th.

David Brown seconded the motion.

The Board agreed unanimously to table the case until November 16th.

Mark Sargent told the public if there were any abutters present this would be the only notification they would receive.

Mark Sargent read: CASE No. 0909-198: Robert Young, 943 North Barnstead Road, Barnstead, Map 16, Lot 46-1, is requesting a variance to Article 4, Section 4- 2.05 (side setback) of the Town of Barnstead Zoning Ordinance. The applicant is proposing to build a home 26’ x 60’ which does not meet the minimum 30’ side setback as required by the Barnstead Town Ordinance.

Alvin Nix introduced himself as the Attorney from Laconia, who was representing Robert Young. He showed on the plan that the lot is very narrow but very long. The question is very simple. As an area variance - the reality is the average width of the lot is 70 feet. If he were to build a house by the setbacks set in the Zoning Ordinance the house could only be 10 feet wide. The applicant is only asking for an 8 foot variance for the side setbacks.  The concern is location, but the lot is very deep. The area has residences there so there’s no difference in that regard. That’s what his intent is to do – make it a residence. Is it reasonable to ask him to build a 10’ x 26’ or 10’ x 60’. Most double wides are 26 feet wide. The plan shows he has two existing sheds for his own purpose. Alvin Nix went through the 5 criteria explaining the special conditions are the lot is only 70 feet wide. There are no other properties abutting him that he could buy to make the lot larger. The variance would not be contrary to public interest because residences are allowed in the permitted use of the Zoning Ordinance. Substantial justice – he bought what he could afford and wants to put a home on it. He’s not going to build something that will be contrary to what’s in those areas. They are all single family residence and it can only enhance the value.

Gordon Preston asked where the driveway was. He asked if the driveway crosses over Jeff Godfrey’s land.

Alvin Nix explained that driveway at one point was an access, but it’s no longer used for that purpose on the applicant’s property.

Mark Sargent asked if the driveway was encroaching on the neighbor’s property.

He was answered – no there is no encroachment.

Mark Sargent stated the last time Robert Young was before the Board the question was if this lot was a lot of record. He asked if this was ever resolved.

Alvin Nix answered - the position taken is the Town in 1983 approved it. The Planning Board minutes state it was approved and there was a history on the land.

Mark Sargent referenced a letter that was sent from Attorney John Lake August 27, 2008. It contained documentation of the deeds recorded at Belknap County Registry of Deeds. At the end of the letter he stated “Based upon the foregoing records it is my opinion that the above named owners have valid and lawful title to the subject premises”.

Eileen Murley asked if the Board had questioned the Towns Attorney.

Mark Sargent said yes. The question was – the lot was shown on the Town’s tax map, but there was some question if it was properly approved or sold as something else. Does it make it a lot of record if it’s shown on the tax map? The Attorney said no just because it’s on the tax map doesn’t justify it.

Eileen Murley stated that the Town Attorney said the Zoning Board could act on the request for a variance.

Mark Sargent agreed.

Alvin Nix brought up the issue of an equitable waiver on a lot after 10 years.

Mark Sargent said the only issue before this Board was the sideline setback, not if the property was a valid lot.

Gordon Preston stated when this was created - there is a septic system from one lot on the other lot. He referenced a registered letter (the Board didn’t have a copy of this) that was sent asking the septic system to be removed. Going back, a person sold this 70’ strip, which wasn’t registered correctly, saying it can’t be sold separately.

Mark Sargent stated that the Board has a letter from an attorney saying that this is a valid lot of record. The question before this Board is - can he get a valid variance for the side setbacks. The argument that it’s not a valid lot can still be out there, but that’s not the issue before this Board.

Eileen Murley again stated that the Towns council said the Zoning Board can act upon the variance request.

Gordon Preston stated we can’t give permission to build something prior to it going to court between the two neighbors precisely on these lot lines and the septic system.

Eileen Murley questioned the application requesting a variance for the frontage.

Alvin Nix said he put in all the evidence and only to see if the Zoning Board really needed it. He considered it a Town approved lot and really doesn’t believe that the frontage is an issue seeing that the 200’ frontage can’t be met.

Mark Sargent said in his opinion this application was not a frontage issue at this time.

James Fougere asked why the Building Inspectors rejection letter referenced a barn being built.

Paula Vardaro told him that letter was for the original permit that was applied for in 2007.

Gordon Preston said the driveway as it is at the moment is on the side of Jeff Godfrey’s property, but it appears to have moved to the other.

Robert Young showed them just where the driveway was and just where Jeff Godfrey’s septic is on his property.

Gordon Preston asked about the leach field.

Alvin Nix said the only thing they knew was the septic was on Robert Young’s property.

Mark Sargent opened the public hearing at 7:22 P.M.

Peer Kraft-Lund, an abutter, told the Board he felt the application was shaky. He told the Board several years ago he did a work shop and used this lot as an example of how a bad administration can sneak through something that doesn’t belong. This lot was created only to hold a septic system – then it got clouded up. He took the position of someone that works in the Town. He pointed out in his opinion this was at least a two variance request because of the two sidelines. It might be more; there is no plan as to what the structure is going to look like, you need to see that. In researching the deed – the Town’s counsel needs to research the deed, then it should go to the Building Inspector who should also research the deed to see if it was a clear deed, then it comes to the Zoning Board. If there is an error on the lot you cannot do anything about making it a building lot. He was also concerned with a suit against the Town – you need to have everything looked at by the Towns council so the Town doesn’t get sued.

Brandee Kraft-Lund, an abutter, was concerned that the lot was purchased as is. The people who bought and sold it knew what they were doing. It isn’t the Town’s responsibility to mitigate the problems or the mistakes that people who purchase face. Substantial justice is to check out something before we buy it.   You should check out just what you can do on a property before you purchase it. They need to consider what a residence is. They can’t put up anything without setbacks. She argued that the negative impact would be great, because the lot is so close. It would not enhance the value of their property because of the rural area. Contrary to the area where the building is the use of it has been brought to the Selectmen with real serious concerns as neighbors - for safety. She produced copies of a letter by Carol Pontbriard regarding previous owner Helen McLaughlin and James Conley, which states this lot was only to be used for a septic system. She continued long term Barnstead residents rely on the committees to do the right thing. It’s not easy, but we encourage you not to feel guilty for someone else who has done things that are very offensive and encourage you to look at the property and the surrounding neighbors. She added that it was not a clear application.

Alvin Nix said in response he understood how the process works, how the Town approves things, but that might not have been the case when this lot was created in 1983. We deal with the process we have today and that’s just what we need to look at. The Board makes the decision; they do variances, special exceptions, waivers and appeals from administrative decision. Those are tasks given by statutes. The Board has letters from counsel; it has its input from perspective persons. The research has been done; the deed doesn’t have any restrictions on it regarding the letter from the Conley’s. There are no records. He did buy the lot as is he couldn’t buy anything larger. The purpose of the Zoning Board is that everyone is treated with the same justice.

Jeff Godfrey stated he wished Robert Young had asked questions 5 years ago, before he bought the lot.

Mark Sargent asked for any further questions from the Zoning Board. Mark Sargent referenced a letter that was sent from Attorney Hoover who represents Jeff Godfrey against Robert Young in litigation over boundary lines between the two properties. The letter requested the boundary lines between the two properties be firmly established before the Zoning Board addresses any variance request.

Gordon Preston questioned the size of the two cement slabs that were on the lot.

Alvin Nix said they were 2- 250 square foot sheds which do not require permits according to the Town’s building regulations.

Gordon Preston said these sheds were put in with a concrete foundation.

Alvin Nix argued – the sheds were still within the letter of the law. A person can put in multiple sheds as long as they aren’t connected.

Eileen Murley asked if the cease and desist order was still on the property and how that came about.

Gordon Preston said that the application for the house had not been submitted to the Building Inspector, the lot wasn’t surveyed and things were being built. The Selectmen didn’t have a choice, but to put a stop on everything until the permit was filed.

Mark Sargent said the property line is the question even though the survey was done in 2008.

Brandee Kraft-Lund asked who was responsible. The abutters spoke with the Selectmen, the Building Inspector and the Planning Board. She said the applicant has set up living when no permits were taken out. That’s disconcerting and upsetting.

Mark Sargent said the zoning Board grants variances, special exceptions, equitable waivers and appeals to administrative decisions, that’s all the Zoning Board is responsible for. We don’t write the Zoning Ordinance or the Planning Regulations we don’t enforce the regulations.

Eileen Murley questioned Brandee Kraft-Lund’s mention of the septic not being approved. She had in hand the approval for construction notice.

Robert Young said the property has been approved for a 3 bedroom septic.

Brandee Kraft-Lund said it was all very confusing, because there was no building permit.

Mark Sargent said it was a civil matter pertaining to distance and property lines.

Jeff Godfrey suggested the Board table the matter until after the matter is cleared up in court.

Mark Sargent answered - the Board would decide that issue.

Gordon Preston asked where the well was.

Mark Sargent pointed out the well and the septic on the plans along with the approval from the State.

Alvin Nix added that the applicant has the right to apply for a permit.

Peer Kraft-Lund asked the Boards opinion on the fact there are at least 3 violations maybe 4. He should be seeking 4 variances.

Mark Sargent disagreed with Peer Kraft-Lund that 4 variances were required. There are only 2 side setbacks in question.

David Brown added that both side setbacks are handled as one variance.

Mark Sargent said that was the way the Zoning Board has always handled it.

Gordon Preston asked if he should be asking for 3 variances. The Board should consider the history of the lot that has been deleted from the deeds. We are being asked for permission to build on a piece of property that a judge would be deciding on. It would be foolhardy to grant the variance especially where the side line is in dispute. The Town would be exposed to this.

James Fougere asked if the court will consider the variance in their ruling.

Alvin Nix stated that the site plan is on record at the Belknap County Registry of Deeds and is a legal document until the time that it is changed or challenged. The law states that it is valid.

Gordon Preston said this case is very murky from way back– it’s not a normal situation.

Alvin Nix said the Board has to make their decision. The judge has the final say in the lot line. He’s not going to look at your variance choice. The only way he would, is if someone appeals the Board’s decision and challenges the lot line.

Gordon Preston wanted to go on record stating that he would not vote for a motion for the variance to the Town setbacks for this property.

Brandee Kraft-Lund stated that the Town needs to be clear on this matter. The Town should really check this out instead of making a decision that will end up in a huge law suit which will cost the Town a lot of money. The builder should stop until the matter is cleared up.

Robert Young asked if he could build a home 10 feet wide.

Mark Sargent said he would need a building permit, but if he didn’t need a variance there was no need to seek a variance with the Zoning Board.

Mark Sargent closed the public hearing at 7:55 P.M.

Mark Sargent asked the Board if they would like to go look at the site.

David Brown said he would like to see the relative position of the other homes within the side setbacks. He proposed a site walk with the markings set for the house and side setbacks.

Mark Sargent asked Robert Young if he could put stakes in the corners of the proposed house.

Robert Young said yes, he has the lot line and the house already marked out.

David Brown made a motion to have a site walk.

Gordon Preston said most of the Selectmen have already been there.

Saturday, October 31st , at 8:30 A.M. was decided for the site walk.

There was a question regarding the abutters being allowed on the property.

Mark Sargent informed them, they can show up, but the owner has every right not to allow them on his property.

Robert Young chose not to allow the abutters on his property.

Rick Duane made a motion to continue the case until the November 16th meeting.

Eileen Murley seconded the motion.

The Board voted as follows:

Rick Duane                            yes                  Gordon Preston      no

Eileen Murley                         yes                   David Brown          yes

Kaye Alguire                          yes

Mark Sargent informed the applicant and the abutters – there will be no official notification for the continuance of the hearing on November 16th at 7:00 P.M. This was the only notice they would receive.

NEW BUSINESS: Mark Sargent reminded the Board that the Zoning Board doesn’t write or vote for the Zoning Ordinance. He referenced proposed wording from John Petschauer that was sent to a Board member regarding the suburban districts. We can write a letter to the Planning Board with this comment, but he felt we cannot say that the Zoning Board cannot grant a variance to the Zoning Ordinance. Mark Sargent said he would draft a letter to the Planning Board addressing this issue.

Eileen Murley told the Board that the Planning Board would like to schedule a seconded joint meeting to discuss the Zoning Ordinance changes. They felt a lot was accomplished at the first meeting.

Mark Sargent agreed he would like to have an additional one seeing as he was unable to attend the first one.

Gordon Preston added that the intent of this meeting was to inform the Planning Board of where they found discrepancies like the Table of Uses and the definitions.

The Board decided that at the next meeting of the Planning Board November 5th the Zoning Board would attend to discuss the issues.

David Brown brought up the fact at the OEP Conference he attended, the question was asked about the abutters being allowed on the applicant’s property. The lecturer stated that the abutters were allowed on the property.

Mark Sargent said that was his opinion. He stated that the applicant has every right not to allow the abutters on his property.

Rick Duane said he wouldn’t allow abutters on his property either.

Mark Sargent said he has been to properties that do not allow abutters on the property. When an applicant fills out the application, they check off an item allowing only the Board to go on the property.

David Brown said he only brought it up because the question was asked and answered at the conference. They also said if the abutter were not allowed on the property, the Zoning Board couldn’t act upon the request.

Mark Sargent disagreed – the applicant has the right to refuse entrance on his property by the abutters.          

MINUTES FROM 9/21/09 – Eileen Murley said page 4 line 17 change cottage “district” to cottage “industry”.

Paula Vardaro said the applicant Deborah Simpson requested her name “Debbie” be changed to “Deborah” throughout the minutes.

Eileen Murley made a motion to approve the minutes as amended.

Rick Duane seconded the motion.

The Board voted unanimously to approve the minutes as amended. Gordon Preston abstained.

ADJOURNMENT: Mark Sargent adjourned the meeting at 8:15 P.M.

Respectfully Submitted

Paula Vardaro

Recording Secretary

|Top of page

ZONING BOARD OF ADJUSTMENT

TOWN OF BARNSTEAD

TOWN HALL

SEPTEMBER 21, 2009 @ 7:00 P.M.

MINUTES

Zoning Board Minutes from 9/21/09 Meeting

Approved as Amended 10/19/09

CALL TO ORDER: Mark Sargent, chairman, called the meeting to order at 7:00 P.M.

ROLL CALL: Mark Sargent, chairman, Eileen Murley, vice-chair, David Brown, Rick Duane, Kaye Alguire, James Fougere, alternate and Paula Vardaro, recording secretary

Mark Sargent read: CASE No. 0709-196 continued: Starview Properties, LLC – Manager - Michael Farinola, 192 Parade Road, Barnstead, Map 6, Lot 27, is requesting an appeal to an administrative decision to Article 4, Section 4-1 Lot Size and Article 4, Section 4-2.02 Lot Accommodations of the Town of Barnstead Zoning Ordinance. The applicant is proposing to rebuild a seasonal cottage for the purpose of renting it as a single-family unit.

Mark Sargent informed the Board that the applicant sent an e-mail requesting the case be continued until next month.

David Brown made a motion to continue the case until next month.

Eileen Murley seconded the motion.

The Board voted unanimously to continue the case until next month.

Mark Sargent read: CASE No. 0709-197 continued: Deborah and Scott Simpson, 138 Hazel Clark Road, Ctr. Barnstead, Map 12, Lot 25-1, are requesting a variance to Article 4, Section 4-2.02 of the Town of Barnstead Zoning Ordinance. The applicants are seeking a variance to allow a mobile home and a residence on their property. The Barnstead Zoning Ordinance only allows one dwelling unit per lot.

Mark Sargent said that last month the Board had a couple of questions and concerns. One concern was the actual building permit for the house and the barn. The permit doesn’t mention the other trailer on the property.

Scott Simpson explained that it only referenced the second mobile home that was on the property while they were building the house.

Mark Sargent also added the other piece of information that was obtained was the request for tax abatement in 2003 for the trailer, which stated the trailer was being used for storage only.

Mark Sargent opened the public hearing at 7:07 P.M.

Scott Simpson read a letter written by Deborah Simpson, requesting the variance be granted and that this would not be setting precedence for future cases because each case is different. They should take into consideration today’s economy consider that someone is living there and they would have to deny them a place to live.

Rick Duane questioned the status of the trailer referring to the tax card stating the kitchen and bathroom had been removed.

Deborah Simpson said that tax card was inaccurate.

They discussed the updates and what was referenced on the tax cards.

Mark Sargent questioned the two structures on the property; he asked Scott Simpson if the mobile home was there first.

Scott Simpson said yes.

Mark Sargent continued – then the seconded mobile home was put on the property while the house was being built.

Deborah Simpson stated there were a lot of misconceptions.

Norman Dion, an abutter, said he bought his land in 1978 or 1979 and he remembers the trailer always being there.

Doris Dion said she couldn’t see evicting someone from their home.

Mark Sargent closed the public hearing at 7:15 P.M.

Eileen Murley questioned the application for the tax abatement. It seemed it was based upon the trailer being used for storage only, and now the Simpsons want a variance to approve of the change to a residence. She felt it would make the lot a more non-conforming residence.

Mark Sargent added the abatement changed it from a residence to storage, now they are asking to have it changed back to a residence and to allow two residential dwellings on one lot. He added that it puts the Board in an awkward situation. We wouldn’t want to put anyone out in the street, but unfortunately the law is the law. If the Board wants to consider this then we should discuss it.

Rick Duane said do we have any options seeing that someone is living there now. Can we set a time frame to allow them to live there for example 18 months, and then it reverts back to storage. He felt it wouldn’t be setting precedence with that decision.

Kaye Alguire asked when only one residence per lot was adopted into the Zoning Ordinance.

Mark Sargent said it has been on the book for at least 20 years. It wasn’t something that was put in recently.

David Brown said if the variance was approved it would be setting precedence.

Kaye Alguire agreed it would.

Mark Sargent brought to the Boards attention another parcel of land the Zoning Board granted a variance to that is now up for sale. The seconded living space is over the garage which was set up for a mother. The owner was told when the mother was no longer living there the apartment had to be removed. If someone was to buy this place they would assume that they could rent out the seconded unit.

David Brown asked about John Abbott’s case and why was his approved.

Mark Sargent told him that according to the file his home was considered a duplex.

Eileen Murley said drawing a conclusion from the 2002 abatement application and it being granted in 2003 the change of use brought the property into compliance with the existing Zoning Ordinance for only one residence and if we were to approve the variance we would be setting precedence to allow the second residence. She would concur with Rick Duane; because someone is living there an extension to the time period was in order to allow this person to find a new residence.

Mark Sargent asked if this was a motion.

Eileen Murley made a motion to not approve the variance on the basis it would make the property more non-conforming by allowing the second residence.

Mark Sargent said he didn’t think if that motion was made that a proviso could be put on it to grant the extension of 18 months. The motion needs to be granted with the proviso that the use is extinguished within 18 months.

Eileen Murley made the motion that the variance is granted to allow the second residence, but for it to only continue for a period of 18 months. At which time the mobile home has to be transferred to a storage unit.

Rick Duane seconded the motion.

David Brown asked when the tenant actually came on board.

Deborah Simpson said 1 year for this tenant and then the previous tenant was there about 1 year as well.

David Brown asked if she had filed for a change of use when it reverted back to a residency.

Deborah Simpson said she didn’t realize that they needed to change it back. She said they filed the abatement because it was used as storage by Bob Simpson and they were being taxed as a home. She didn’t realize that she needed to come back before the town and change it back. They have been renting it out since then; it provides a roof over someone’s head and keeps them warm. All they are asking is to maintain it as a residence until it breaks down.

Eileen Murley added she and the other Board members didn’t think that this was done on purpose.

Scott Simpson pointed out on the tax card that it has maintained its value, or even gone up in value.

Mark Sargent stated that the Board has laws that they have to go by and it just can’t say one person can’t do something and another person can. He understood where they were coming from, but take into consideration their house wasn’t there for 20 years, the mobile home was. We are put in a situation we have to weight everything.

Mark Sargent called for the vote granting the variance with the proviso that the mobile home has to convert back to a storage facility within 18 months.

The Board voted as follows:

Rick Duane                      Yes                           David Brown                    No

Eileen Murley                   Yes                            Kaye Alguire                    Yes

Mark Sargent informed the Simpsons that the variance is granted with the proviso. They will receive notice of the decision within 5 business days and with any decision they have 30 days in which to appeal back to this Board. If we don’t rehear the case you can take it to superior court.

NEW BUSINESS: Paula Vardaro informed the Board the Planning Board invited them to attend their

Work session on October 15th at 7:00 P.M. to discuss items for the Zoning Ordinance.

Mark Sargent told the Board that this case was a tough decision, and they are going to have to make some tough decisions, but that’s just the way it goes. It would be nice if we could say yes to everybody but you need to take into consideration that the law is the law and it’s our duty to uphold that law taking into consideration - if there are extenuating circumstances to grant the variance. Mark Sargent told the Board he felt they made the right decision in this case.

James Fougere questioned how this particular case came in front of them seeing that there many more of them out there.

Rick Duane said the appraiser noted it and then brought it to Paul Richardson, the building inspector, who in turn gave it to us. He agreed that there were many situations like this out there.

Mark Sargent agreed mentioning an additional case, stating they will probably see more cases like this one.

The Board discussed lot sizes and two dwelling units with two separate structures and duplexes.

Eileen Murley asked if this issue should be brought before the Planning Board work session. Should an additional dwelling unit be allowed in the primary residence?

Mark Sargent said the Zoning Board shouldn’t be making zoning regulation, they can only suggest to the Planning Board. You need to come in as a private citizen and suggest the provision for an apartment. He added that the Planning Board does look for the repeat situations so they can eliminate then, referring to the size of decks that came before the Zoning Board.

Eileen Murley said after reviewing the cases from the past year there are changes to the ordinance that need to be addressed. She felt the table of uses and the definitions in the suburban district should be reconciled.

Rick Duane added there was no definition of the cottage industry.

Eileen Murley asked what the Board should recommend. Was it to allow nothing in the suburban district or the statement of purpose of the definition for the suburban district allowing a little more flexibility and should be changed or maintain districts as residential lots free of business or industry. Maybe the purpose statement of the suburban district should be changed to the intent is to maintain districts of residential lots with a minimal business for little impact on the neighbors.

Rick Duane suggested looking at the size of the business for the minimal impact on the neighborhood.

Eileen Murley agreed.

They discussed the suburban district referencing different businesses that they were aware of.

Mark Sargent recommended distinguishing the suburban districts like Locke Lake or Birchwood hideaway.

Eileen Murley said when Starview properties came before the Planning Board they denied him because it was a change of use the existing use was a non-conforming use and the change of use to condominiums could not be allowed. The issue before us was the residential rental unit -referring to the original denial letter it talked about the interruption of non-conforming use and the non-conforming use may continue until the use is over about 1 year. That language was taken out of the section. She would like to see it put back stating the rebuilding of non-conforming lots on grandfathered properties should also be reviewed. Eileen Murley asked if rental property had to get approval from the Planning Board as a business.

Rick Duane said according to the Zoning Ordinance if a business is inactive for 5 years or more it will not be considered a precedent for a new business at the same location.

MINUTES FROM 8/17/09: Mark Sargent pointed out page 1, 3rd paragraph “Margent” should be changed to “Mark”, page 3, 8th line from bottom “sated” changed to “stated”, page 5, 10th line from the top “seconded” changed to second.

Eileen Murley pointed out page 1, 3rd paragraph, line 11th line, from the top “clad” changed to “clap”, page 4, 8th line from the top “lama’s” changed to lamas.

Eileen Murley made a motion to approve the minutes as amended.

Rick Duane seconded the motion.

The Board voted unanimously to approve the minutes as amended.

ADJOURNMENT: Mark Sargent adjourned the meeting at 8:00 P.M.

Respectfully Submitted

Paula Vardaro

Recording Secretary