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Zoning Board of Adjustment Warner, NH Joint Meeting with Zoning Board of Adjustment Meeting Minutes of Warner Members Present: Martha
Mical, Vice Chair, Dennis Barnard, Eric Rodgers, alternate Mike Holt,
alternate Janice Loz, and alternate Rick Davies. (Jean Lightfoot
recording) Also Present:
Don Gartrell, Warner Town Counsel Not present: Chair Martha
Thoits, Joanne Hinnendael and alternate Ted Young. Hopkinton Members Present:
Janet Krzyzaniak, Chair, Daniel Rinden, Toni Gray, Harold Perkins
and Charles Koontz Ms. Mical opened the meeting at 1.
CASE 01-2008: VARIANCE
Applicant: Christian
Hartshorn, Chalk Pond Investments Property Location:
Proposed Use: One
single family lot #1: Variance to Zoning
Article VI. C. 1. A. Request
an 84.37’ variance to the 200’ minimum frontage requirement. Ms. Mical recognized Mr. Hartshorn and asked him to summarize what
his request is for the benefit of the Hopkinton Board Members.
Ms. Krzyzaniak said that the Board needed to be informed of
exactly what Mr. Hartshorn is requesting.
Mr. Hartshorn explained that the access to his lot is in the Town
of Ms. Mical said that she thought he was here for a variance on the
road frontage. Mr. Hartshorn
said yes, for Warner. Ms.
Mical followed up, saying, that he also does not have enough frontage
for Hopkinton. Mr. Hartshorn
replied that he believed that under RSA 674:53, Section III, he could
treat the two tracts as one lot. Ms.
Mical said that the RSA further says that the item that you are
requesting, which is a variance on road frontage, should be determined
by the regulations of the town that it is in.
Mr. Hartshorn disagreed, saying that it was based on where the
use is. He cited the
Churchill Realty Trust v. Ms. Mical asked Mr. Gartrell if it was his opinion that the Warner
frontage requirement of 200 feet is what is to be considered, not the
300 feet that Hopkinton requires for their zoning district.
Mr. Gartrell said that he believes that it is a dimensional
variance and the 200 feet based on Warner’s requirements would be
proper to consider. However,
he noted that if it were granted, the only use allowable for the
Hopkinton tract would be for access to the Warner lot.
Mr. Hartshorn said that he must maintain the acreage, borrowing
from the Warner lot, for the Hopkinton requirements and the 300 foot
frontage requirement for his home which is in Hopkinton.
He said his plan would be to maintain the 3 acres required for
the building in Hopkinton when he subdivides.
Ms. Mical asked if there were any further questions.
Ms. Gray asked what the frontage for the access road is, as it
goes off of Ms. Gray asked who the emergency responder is.
Mr. Hartshorn said he thought it would be whoever is closest.
Ms. Mical said she thought it would be Hopkinton who would issue
the 911 number for any new structure because the access is in Hopkinton.
She said that the building permit would come from Warner, but
because the road is in Hopkinton, the 911 number would come from
Hopkinton. Mr. Koontz asked
how the 911 responders would know where to go.
Ms. Mical explained that it would be whoever is closest.
Ms. Krzyzaniak said that she believed because the structure would
be in Warner, then the Warner Fire Department would be responsible,
however, she knows there is an agreement between Warner and Hopkinton
about emergency response. There
was further discussion about 911 responders.
Ms. Gray said she understood that this is being called a driveway,
not a road. Mr. Hartshorn
said yes, for the intents of this meeting.
Ms. Gray asked if it were necessary to give a variance for the
total road frontage. Ms.
Mical replied that since 300 feet is already “locked up” with the
Hopkinton building lot, and then there is only about 115 feet left of
the frontage and that is where the variance is needed.
Mr. Gartrell added that 300 feet of the frontage is pertinent to
the currently existing house. He
said that, ultimately, Mr. Hartshorn will have to get a subdivision to
increase the acreage to support that house, as well.
He said he believed the question for the Warner Board is, “Of
the remaining frontage in Hopkinton, would we permit a driveway to be
constructed on less than 200 feet of frontage?” Mr. Perkins asked what happens if the Boards disagree.
Mr. Gartrell said he thought that was where the statute comes in.
The lot that straddles a town line is treated as one lot.
There are exceptions, but he said that he believes that the
portion of the lot that is in Hopkinton is not really a free-standing
lot, so that the frontage requirement is really a question of whether it
would support the access way to the building lot which is in Warner.
Mr. Perkins reiterated that he understood, then, that the
variance decision was up to Warner because the major part of the use is
in Warner. Mr. Gartrell
replied yes. Mr. Perkins
then referred to page 7 of the Churchill v. “. . . provided however that the sole
issue which may be addressed or regulated by the adjoining municipality
[which he thinks is Hopkinton] shall be the adequacy of such street
access, and the impact of the proposal upon it.” Mr. Perkins asked if this did not give Hopkinton the right to
determine the adequacy of the street access.
Mr. Gartrell said he believed that is why the two Boards need to
meet and come to an agreement. Mr.
Perkins asked again what happens if the Boards disagree.
Mr. Gartrell said he thought the Boards might have to seek a
declaratory judgment. Mr.
Davies asked how the second paragraph on page 8 of the Churchill case
applies here. He quoted,
“We construe this language to mean . . . that each municipality is
responsible for determining . . .”
Mr. Gartrell said yes. Mr.
Perkins said he understands then that access is put in a completely
different category. Ms.
Mical said she thought it should be Hopkinton’s requirements, not
Warner’s, because the variance is strictly dealing with the road
frontage; it’s not dealing with subdivisions or buildings.
Mr. Davies said that he read it that both towns are responsible
and if both said yes, then it was okay.
He continued that if either town said no, then it would not be
allowed. Mr. Perkins said he
thought there are two issues: which
set of criteria apply, and then it’s still a case of both Boards have
to agree to the variance. Mr.
Gartrell said he believes that Hopkinton has a right to look at the
access issue. He quoted from
Churchill v.
“The respondent [ He continued, based on this access is a different category and there
is a weighing of the impacts on the two municipalities.
He said the principal issue is that you could put build a
residence in Warner, but for some accessibility to its lot because it
doesn’t have any frontage. If
the only thing that the Hopkinton land would be used for was the access,
and the Boards could not agree, then the issue is whether the tail is
wagging the dog, or is it the other way around.
He said, that, if, feasibly you could have access without
imposing a great burden on Hopkinton, and just allow it for a driveway,
then that would be permissible. Ms. Loz said that she thought that the Supreme Court in the Churchill
case said that because the land and buildings were in Rollinsford, then
the access would be controlled by Rollinsford, and not Dover (or Warner
and Hopkinton, in this case). Mr.
Gartrell said the fundamental issue in the Churchill case was the
density of the development and Ms. Krzyzaniak told Mr. Hartshorn that when he was before the
Hopkinton Selectmen and she was in attendance, it was her impression
that he planned to subdivide the Warner property into more than one
building lot. Mr. Hartshorn
said, at this time, no. Ms.
Krzyzaniak said that she was talking about the time he was before the
Hopkinton Selectmen after he had moved the house after he had requested
the building permit and it was over the Warner line.
She said at that time, he had talked about subdividing the Warner
land and making many more buildable lots than the one he is now
requesting. Mr. Hartshorn
agreed that he had said that, but he said now he does not know what the
future holds. Ms. Krzyzaniak
said her concern is that you were trying to get a driveway in to satisfy
being able to get into that lot and then, sometime in the future, you
might want to subdivide this land and use this little access which will
be only a driveway. Mr.
Hartshorn said that the little access will be based on the regulations
for the town in which it is located.
He said the primary purpose is to get the back land away from his
house and be able to use the back land.
Ms. Krzyzaniak asked if he remembered her saying that night that
she hoped he wasn’t going to use this man-made problem to get access
into that back land. Mr.
Hartshorn said he might remember the comment but he did not know what to
say about it now. Ms.
Krzyzaniak said that she has the feeling that Mr. Hartshorn is just
using this to his advantage to get the driveway or roadway to get access
to the back land so that he can subdivide it.
Then, she said, Hopkinton will be stuck with whatever number of
houses you can put there, and all coming out through this little roadway
onto Pleasant Pond Road. She
said if he came to the Planning Board, they might really be concerned if
that were going to be a big subdivision.
Mr. Hartshorn said right now he has a hardship because he cannot
use the lot for anything. To
correct this, he said, he needs, first of all, to get the variance and
then go before the joint Planning Boards to get their approval for his
subdivision. Mr. Koontz asked if timber had been removed from some of the land.
Mr. Hartshorn said it had been about seven years ago before the
lot line adjustment. Mr.
Koontz said that that then is a use.
Mr. Hartshorn agreed. Ms.
Krzyzaniak asked if the lot line between Hopkinton and Warner had been
officially adjusted in the deeds because Mr. Hartshorn had built his
house over the line. Mr.
Hartshorn indicated on the map where the line is and where the frontage
is. He said he has 415 feet
total, 300 feet from the beginning of his house lot and then 115 feet to
the end of the proposed access lot, with 60 feet being the narrowest
point. There was some
further discussion about the maps and the various logging roads and
wetlands. Mr. Davies asked which zoning district would determine what the
required frontage is. Ms.
Mical said that we have always gone by wherever the road frontage is,
which is R-2 in our case. Ms.
Gray asked if Mr. Hartshorn had been to the Planning Board for a
conceptual yet. Mr.
Hartshorn said no. Mr. Davies asked when Mr. Hartshorn had received the permit for his
house. Mr. Hartshorn said
about 2-3 years ago. Mr.
Davies continued to say that at that time Mr. Hartshorn had 415 feet of
frontage which was enough for 2 lots in the R-2 zoning district of
Warner at that time. He said
at that point in time, it could have been looked at possibly as two lots
and as things progressed, it has become required that it have 300 feet
of frontage because the house was built in Hopkinton.
Ms. Mical asked if there were any other questions.
Mr. Rodgers asked how many houses the land could support, based
on Warner’s R-2 and the wetland and slope areas.
Mr. Hartshorn said that based on the combination of the two
districts, OR-1 and R-2, 10 houses would be possible.
Ms. Krzyzaniak asked if that included Mr. Koontz asked if 10 houses were built on that lot, where the
children would be picked up for school.
Mr. Hartshorn said he didn’t know.
Ms. Krzyzaniak asked where he chose to send his children to
school. Mr. Hartshorn said
they aren’t old enough yet. Ms.
Mical said she thought that the agreement with the Board of Selectmen in
Hopkinton said that his children will go to the Hopkinton schools.
Mr. Hartshorn said that if there were a road there, there would
be a turning point and it would make sense for a school bus to turn
around there. Ms. Krzyzaniak
read from the agreement and said that the children will attend Hopkinton
schools. Ms. Mical asked if there were other questions.
Ms. Loz asked who will grant the variance.
Ms. Mical said that each town will do their own voting.
Ms. Gray asked Mr. Hartshorn to please cover the criteria for a
variance. Mr. Hartshorn read
from his Warner application:
“A. No diminution
in value of surrounding properties. -- Allowing the lot with 105± acres
to have frontage of 115.63 feet will not decrease the value of adjoining
properties. Unique to this
lot access to actual buildable area would be 1000± feet off of
“B. Granting the
variance will not be contrary to the public interest.
-- Without the variance, I will have to put in a road of at least
1000 feet without applying for a variance, just meeting the regulations
of the town. That would not
be reasonable, at a cost of over $300,000 just for one building lot.
“C. Denial of the
variance would impose unnecessary hardship upon the applicant.
The undersigned alleges that the following circumstances exist
which prevent the proper enjoyment of his land under the strict terms of
the zoning ordinance and thus constitutes the necessary hardship.
Road cost for one lot prevents me from feasibly using the lot as
a building lot. I believe
that building lot is a reasonable use of the land.
“D. By granting the
variance, substantial justice will be done.
-- Granting the
variance will allow the creation of a building lot with 115 feet of
frontage.
“E. Use will not be
contrary to the spirit of the Ordinance.
Creation of 1000± foot road for one building lot is
unreasonable.” Ms. Mical asked if there were any more questions from the Boards.
Mr. Barnard said that at some point, if Mr. Hartshorn puts in 9
or 10 houses, a road will have to be built.
He said that, given that, he did not see how there could be a
hardship for not granting this variance.
Mr. Hartshorn said he did not want 9 or 10 house lots.
He said he just wants one. Mr.
Koontz asked if it was Mr. Hartshorn’s contention that having the
expense of building a road prevented him from a reasonable use of the
land. Mr. Hartshorn said
yes. He said he thought a
building lot was a reasonable use of land.
Mr. Koontz followed up saying that he could build a road and use
the property as he wants to use it.
Mr. Hartshorn said yes, he could build a road and have a
conceptual of 10 lots. He
said that is not what he wants to do.
He said it would be foolish.
It is not what he wants to do right now.
He said that either he gets the variance or he has to engineer a
road and get joint Planning Board approval for one building lot, which
is unreasonable. Ms. Gray
asked what would happen if he did nothing.
Mr. Hartshorn said that he would then not have a buildable lot.
Ms. Gray said that when Mr. Hartshorn bought the land, he knew
that section in Warner was “land-locked.”
Mr. Hartshorn said he knew there was a municipal boundary that
went across it, but he said he did not understand that it would be
“land-locked,” resulting in a hardship.
Ms. Mical asked when he bought the land he knew that the road was
in Hopkinton and he knew that their zoning required 3 acres and 300 feet
of road frontage and that that lot had 415 feet of road frontage.
Mr. Hartshorn agreed and said it seemed the right thing to do at
the time to build the house in Hopkinton because it required a shorter
driveway, less money, less utility poles.
It seemed that the most cost effective place to put the house was
in Hopkinton. Mr. Perkins
added that Mr. Hartshorn, by making that decision, destroyed his ability
to have the required frontage to subdivide without a variance.
Mr. Hartshorn agreed. Mr.
Perkins asked if in effect, Mr. Hartshorn had created his own hardship.
Mr. Hartshorn agreed that it could be looked at that way.
Ms. Krzyzaniak said to Mr. Hartshorn that he knew that the land in
Warner had no road frontage when he bought it.
She added that he knew that he could do nothing with the back
land without a road through the Hopkinton section.
Mr. Hartshorn agreed. She
asked him if he’d bought the Warner and Hopkinton land at the same
time. He said it was all one
piece with three tracts. She
said, then, at that time, he did have access to the back land, but, by
placing the house where he did, the back land became land-locked.
Ms. Mical said that the Warner land was land-locked at the time
it was purchased because the access to the Warner land had to be through
Hopkinton. Ms. Mical asked if there were any other questions.
There were none. Ms.
Mical closed the meeting and opened the public hearing.
She asked if there were abutters who wished to speak.
Mr. Roger Dubois, Mr. Hartshorn said that when he decided where the house was to be
placed, he was thinking about the least amount of cost.
He said he thought that any future use of the land in Warner
would require a long driveway, selling it as an estate lot, or
construction of a road and developing it into building lots.
Ms. Krzyzaniak asked if he didn’t need the piece of Hopkinton
land to meet the setback so that he didn’t have to come to Hopkinton
for a variance when the house was built.
Mr. Hartshorn agreed. Mr. Davies asked if Mr. Hartshorn had been to the Warner Planning
Board for a Conceptual Consultation.
Ms. Mical said no. Mr.
Davies expressed concerns about the amount of wetlands in the area where
the driveway would be built. Mr.
Hartshorn said he was not aware of any wetlands in the area and added
that the variance could be granted subject to Planning Board approval.
Mr. Hartshorn indicated on the map where the wetlands and gravel
areas are. There was further
discussion about the map, abutters and other land features.
Mr. Hartshorn was asked about the cost of building a road and he
said, probably, hundreds of thousands of dollars.
There was more general discussion as the Board Members looked at
the maps. Mr. Perkins asked if Mr. Hartshorn subdivided as is shown on the map,
how the larger lot becomes buildable.
Mr. Hartshorn explained if he gets the variance for the shorter
frontage, then he would have access and the acreage is available for
building. Ms. Mical asked if there were any further questions.
There were none. She
asked Hopkinton if they would prefer to have their discussion and vote
first or second. Ms.
Krzyzaniak said they would vote second.
Ms. Mical turned to the Warner Board Members and asked for any
further discussion. Mr.
Rodgers asked if it was determined that it will be the Warner R-2 200
foot requirement which is to be used.
Ms. Mical said yes, Warner’s zoning regulations are the ones
that will be followed in this situation.
Mr. Davies said that he is concerned that at one point in the
history of the project, the subdivision as now proposed could have
occurred without the need for a variance.
He said that decisions made by Mr. Hartshorn have brought him to
the point where he must have a variance to access the back land.
Mr. Davies continued to say that he thought that by granting the
variance, justice would not be done because he has created his own
problem, making Item D. an issue. Mr. Barnard asked Mr. Hartshorn where the road would go if the
variance were denied. Mr.
Hartshorn showed him on the map. Mr.
Barnard asked if the plan would meet all the specifications for a Class
V road, including the distances from side to side.
Mr. Hartshorn said yes, based on both Hopkinton and Warner’s
regulations from last year. Mr.
Barnard said he thought that in the future Mr. Hartshorn would have to
build a road, anyway. Mr.
Hartshorn said that the market is bad for lots today, so he cannot know
what will happen with the back lot.
He said it could also be sold as an estate lot or just to be used
for agriculture. But, he
said, he still needs the access. Ms. Loz asked if the frontage of the other properties in the area do
meet the requirements. She
said if they do, then it may not be in keeping with the neighborhood.
Mr. Barnard asked how Hopkinton feel about the variance.
He wondered if it affects Hopkinton more than it does Warner.
Mr. Koontz said he is trying to understand why Mr. Hartshorn is
asking for the variance. He
said he would like to know what his plans are.
Ms. Mical said all we are considering is the variance of 85 feet to
our requirement. Mr. Rodgers
said that if all this land were in Warner and someone had 105 acres and
115 feet of frontage, he had no doubt that the variance for 85 feet
would be granted. Mr. Davies
asked if it would make sense to discuss each item on the application
form. Ms. Mical went through the items, asking, “Is there any diminution
of value of surrounding properties that would be suffered?”
She asked if the Board felt that Mr. Hartshorn’s answer was
appropriate for the question. He
said, “Allowing the lot with 105± acres to have frontage of 115.63
feet will not change the value of adjoining properties.”
Some Board Members said they did not have a problem with this
answer. Mr. Holt said it was
hard for him to see it as just that one lot, but he did not see that it
would decrease the value of the other properties.
Next, Ms. Mical, continued, “Granting the variance will not be
contrary to the public interest.”
She said Mr. Hartshorn’s answer was “Without the variance, I
will have to put in a road of at least 1000 feet.”
Mr. Davies said that doesn’t have anything to do with the
public interest. Other Board
Members agreed. Mr. Davies
continued to say that he saw no issue with putting in a single family
house there. Ms. Mical asked
if granting the variance would be contrary to the public interest.
Ms. Loz asked if she meant the abutters.
Ms. Mical said the abutters or anyone else.
Mr. Davies said the public interest might be roads, schools,
other public services. Ms. Mical continued, “Denial of the variance would impose
unnecessary hardship upon the applicant.”
Mr. Hartshorn’s response, “The undersigned alleges that the
following circumstances exist which prevent the proper enjoyment of his
land under the strict terms of the zoning ordinance and thus constitutes
the necessary hardship.” Mr.
Rodgers said that he had probably created his own hardship as far as the
road frontage issue goes. Mr.
Davies added that he has a hardship today, but looking back at the
history and he’s been part of it, he has a self-created hardship.
Ms. Loz agreed. Ms. Mical continued with D. “By
granting the variance, substantial justice will be done.”
Mr. Davies reiterated that he thought this was related to the
hardship issue. There is no
justice to be done because it is a self-created situation, so it’s
nothing that he stumbled into and unknown up front.
Ms. Mical concluded, “The use must not be contrary to the spirit of
the ordinance.” Ms. Loz
said that the 200 feet frontage is the ordinance and granting the
variance would be in violation of the spirit of the ordinance.
Ms. Loz MOVED to DENY the application for the variance on the 200
foot frontage because it would be contrary to the spirit of the
ordinance and it will not be in keeping with the rest of the
neighborhood and the frontage of the other properties in the
neighborhood. In addition,
it would be an odd thin parcel of land that would not be in keeping with
the rest of the neighborhood. Mr. Holt SECONDED. Ms. Mical asked for discussion on the motion.
Mr. Davies asked about the hardship and substantial justice
issues (C and D) being included in the motion. Mr. Holt MOVED to AMEND the motion that it was a self-imposed
hardship due to the applicant’s change of location of the house.
Mr. Barnard SECONDED. Ms. Mical asked for discussion on the amendment.
There was no further discussion.
Vote on the amendment: Mr.
Barnard, Yes; Mr. Holt, Yes; Mr. Loz, Yes; Mr. Rodgers, No; Ms. Mical,
Yes. Ms. Mical asked if there was further discussion on the motion.
There was none. She
asked for a vote on the motion with the amendment as passed, including
C, D and E. She explained a
Yes vote will deny the variance. Mr.
Barnard, Yes; Mr. Holt, Yes; Ms. Loz, Yes; Mr. Rodgers, No; Ms. Mical,
Yes. The MOTION was PASSED. Ms.
Mical told Mr. Hartshorn that Warner had denied the variance request and
asked Hopkinton to proceed. Ms. Krzyzaniak asked for discussion on the variance request.
Mr. Koontz said he didn’t think there had been much discussion
about the unique circumstances of the lot.
He said that there had been no discussion about if there were
other lots in the area with the same circumstances. Mr. Perkins MOVED that the application for a variance be DENIED
because of the failure of the applicant to satisfy our variance
requirements 3 (substantial justice), 4 (spirit and intent of the
ordinance), and 5 (hardship). Mr.
Koontz SECONDED. There was no further discussion.
Ms. Krzyzaniak asked for a vote.
Mr. Rinden, Yes; Ms. Gray, Yes; Mr. Koontz, Yes; Mr. Perkins,
Yes; Ms. Krzyzaniak, Yes. The
MOTION was passed unanimously to DENY the variance.
Ms. Mical said both Hopkinton and Warner have denied the variance and
told Mr. Hartshorn he had the right to appeal within 30 days.
Mr. Hartshorn thanked the Boards and left.
The Hopkinton Board departed.
Mr. Gartrell departed. 2.
MINUTES Ms. Mical asked for corrections, comments, etc. on the minutes for 3. COMMUNICATIONS AND
MISCELLANEOUS Ms. Mical said that the Board of Selectmen met tonight to discuss how
they are going to do appointments. She
asked if the Board had any recommendations to the Board of Selectmen for
the one alternate position and two full member positions that are open
this year – Mike Holt is the alternate; Joanne Hinnendael and Martha
Mical are the members whose terms expire.
Ms. Hinnendael has said she will not serve again and Ms. Mical
has said that she will not apply. Mr.
Rodgers said he thought it would be appropriate for the senior alternate
to become a full member. Ms.
Mical agreed and said that would be Mr. Holt, and the next one would be
Ms. Loz. Mr. Davies MOVED
that Mr. Holt and Ms. Loz be recommended to the Board of Selectmen to be
full members. Mr. Rodgers
SECONDED. The vote was yes,
unanimously. Ms. Lightfoot
will write a letter to the Board of Selectmen requesting that they
consider this. Ms. Mical reported that Paul Violette asked for a volunteer from the
Zoning Board of Adjustment to work with the Master Plan Committee of the
Planning Board. She said he
later called to say that Ted Young had agreed to be the Zoning Board
representative. There was some discussion about other potential Zoning Board members.
Ms. Lightfoot reminded members about applying for the April Land
Use Conference and asked the members to submit them by Monday so the
bookkeeper can write one check for everyone.
Mr. Davies asked about the arrangement of the application forms in
the PDF file on the website. Ms.
Lightfoot said she had a problem with it being called instructions for
“appeal.” There was some
discussion and it was agreed to leave them as they are and if people
have trouble with them, then we can make corrections as needed.
Mr. Davies then asked about how the Board votes.
There was some discussion, but it was agreed to continue to vote
as we do. Mr. Holt asked if there was anything that the members need to do now
in regard to the court decision they received on the Smart Growth et al.
v. Town of Mr. Rodgers MOVED to adjourn. Mr.
Holt SECONDED. PASSED
unanimously. Meeting adjourned at |