Minutes:

February 28, 2007 minutes, Ms. Hinnendael made a MOTION to approve the minutes as presented, Mr. Rodgers SECOND the motion, MOTION PASSED unanimously.

March 21, 2007 minutes, Mr. Rodgers made a MOTION to accept the minutes with corrections as follows: page 1 "Eric Rodgers ‘reused" should be recused" and page 7 "Cricenti’s" check spelling. Motion SECOND and PASSED unanimously.

Election of Officers: Mr. Rodgers made a MOTION to nominate Martha Thoits as Chairperson. Mr. Davies SECOND. Ms. Hinnendael nominated Martha Mical as Vice Chairperson. Hearing no other nominations the chair called for a vote of the nominated slate of officers. MOTIONS PASSED unanimously.

Mike Holt will be voting for Dennis Barnard, who excused himself.

Case #04-07: Variance – Dennis and Patricia Larocque

Variance requested: VIII. C. 1. (a) Propose home 21’ from the right of way, ordinance requests 50’.

Applicant: Lloyd Vose, RCS Designs, PO Box 487, Bradford, NH 03221

Property Location: map/lot: 15-47-5, Couchtown Road, in OC-1 zoning

Proposed Use: single family home

Mr. Vose of RCS Designs paid the invoice for the legal advertising and provided the board with written authorization to speak on behalf of Dennis & Patricia Larocque.

Mr. Vose distributed an 8.5" x 11" drawing of the proposed site plan, stating they are asking for a variance to Article VIII c. 1 a and b.

Martha Mical: Am I correct that you have not done a lot line adjustment? Mr. Vose responded that they have not.

Ms. Mical: On the drawing you are showing us the house is over and past a stone wall property line onto another property. Mr. Vose responded, yes, the house placement encroaches the abutters property.

Mr. Vose said the proposal is going to be to add additional acreage to add additional dimensions to this lot which goes into a wetland which will not diminish the other lots ability to meet its criteria, which would allow for the rear property line to be met.

Ms. Mical: You are asking for a variance for just the frontage, not the side or the back? Mr. Vose responded, that is correct, this is only for the frontage.

Board and Mr. Vose reviewed the drawing to determine what the closest point of the building is and where it is in respect to the right of way.

Ms. Hinnendael inquired how big is this lot. Mr. Vose responded .3 acres.

Mr. Rodgers asked for some clarification of wetland setbacks on the drawing. Mr. Rodgers and Mr. Davies asked questions about the wetlands – responses were pointed to versus verbalized. Mr. Rodgers reminded Mr. Vose of the 50’ setback from the wetlands.

Chairperson Thoits asked why the lot line adjustment was not requested. Mr. Vose responded that they wanted to request the frontage variance first, if denied, there would be no need to do a lot line adjustment.

Mr. Vose: This proposed variance is for the construction of a 2 bedroom, single family dwelling. The proposed location of the structure does not meet Warner Zoning regulations setback requirements. The subject property configuration and it’s pre existing non-conformity make this location the only suitable one. Mr. Vose further read into the record written response to the application questions:

A. No diminution in value of surrounding properties would be suffered.

The proposed use of this lot is a residential home as originally created for and allowed in this district. Therefore is a use as intended and common to all surrounding properties.

B. Granting the variance will not be contrary to the public interest.

The requested relief of the strict terms of the Zoning ordinance(s) would not be contrary to the public interest. The nature of this property, prior to the adoption of the ordinance(s) would have allowed the development of a residential structure. The ordinance(s) must apply to all new subdivisions, as intended. Relief must be considered to lots of record created before the ordinance(s) were adopted, (pre existing, non-conforming). In the public interest, maintaining property owners right to develop their land as it was intended, adhering to the new requirements within reason, would be fair and just to all property owners in the Town of Warner.

C. Denial of the variance would result in unnecessary hardship to the owner seeking it.

Where no structure had previously been constructed on the property, the owner of the property for which the variance is sought would be entirely precluded from developing the property as a result of the denial, and the strict enforcement of the current regulations. A hardship will result if the variance is not granted due to uniqueness of the preexisting, non-conforming lot. The subdivision of the property is dated July 11, 1975, which pre-dates zoning ordinance(s). The owners purchased the property with the conception that the lot could or would be eventually built upon by them or others. The configuration and its pre existing non-conformity limits the owners from meeting all current local zoning on this lot.

D. By granting the variance, substantial justice would be done.

Granting the permit would be of benefit to the public interest, no diminution in value of surrounding properties would be suffered. Therefore granting the permit would due substantial justice; and the use would not be contrary to the spirit of the ordinance. (See RSA 674:33 "Grounds for Variance – Generally")

E. The use must not be contrary to the spirit of the ordinance.

The lot configuration and its pre existing non-conformity limit’s the owners from meeting all current local zoning on this lot. The proposed use of this lot is a residential home as originally created for and allowed in this district. Therefore is a use as intended and common to all surrounding properties.

Mr. Vose: (reading from an RSA) To support a variance it must have been found that no diminish in value to surrounding properties would be suffered, granting the permit would be of benefit to the public interest, denial of the permit would result in unnecessary hardship to the owner seeking it. Granting the permit would do substantial justice and the use would not be contrary to the spirit of the ordinance.

Mr. Vose: I would like to address the pre existing, non-confirming regulation just to better understand it, and the board’s interpretation. [note: some language quoted from Article XV of Warner Zoning] I was going on the basis that a non-confirming lot may be built upon for residential purposes only, which is what we are doing, if at the time of the enactment of this ordinance or any amendment thereto of if it is such an amendment that renders the lot non-conforming, which these particular regulations do, (a) the owner or owners of the lot own no contiguous land, they do not and (b) it has a frontage of at least 50’, which it does. And the lot is able to sustain a state approved waste disposal system or connect to municipal sewage. I do have a septic plan at the State of NH waiting for a lot line adjustment to be done before they will approve it. So by reading that, in my mind, I believe this regulation would allow all of this to occur, for any regulation that would cause this lot to be non-conforming, even in the future, as with all other lots in Town even on current recently approved subdivisions. There may be regulations that have passed that make half of the lots in a subdivision that was approved yesterday non-conforming, so that would require all of those lots to have to come in for variances and/or special exceptions.

Ms. Mical responded a non-conforming lot of record doesn’t have to meet it’s acreage or its frontage but does have to meet the setbacks.

Mr. Vose stated it does read or any amendments thereto, meaning these regulations that are continuously amended and added to creating more restrictive rules for properties.

Ms. Mical: I have a problem with not asking them to meet the setbacks in part because it would allow an owner of a non-conforming lot to build on the lot line.

Mr. Vose: My interpretation to regulations that I read is that you must come as nearly conforming to the current regulations as you possibly can – therefore if it was a sideline issue, they would have to meet those and that would be your condition, of where that house could be placed. There are conditions the board can placed, and that is in the RSA’s trying to make it as nearly conforming as possible.

Ms. Hinnendael: Who owns the abutting property? Ms. Mical responded it is owned by relatives but not by the applicant.

Ms. Hinnendael: Is there a slope here, is that why you can’t put the house over here.

Mr. Vose responded that he is trying to meet the regulations as closely as I can. Mr. Vose pointed out the 50’ side and proposed property line setbacks and the regulations for the state approved septic system.

Mr. Davies pointed out that possibly the house could be moved; further it looks like you need a wetland encroachment permit already. Have you considered moving the house closer to the 50’ setback or a smaller building?

Mr. Vose: I engineered it this way because it works best. I am not asking you to reengineer it. I will certainly take your comments and try to place it better if you feel it is better. It is centered on the lot, it encroaches the right of way which is not something that a neighbor would have to look at, I felt that this is the most appropriate location for the home.

Ms. Hinnendael asked Mr. Vose to point out where the brook is, he did so. Ms. Hinnendael reminded Mr. Vose the wetland setbacks need to be adhered to.

Mr. Rodgers pointed out, so according to this the house is 10’ from the edge of the wetlands – 10’. Mr. Vose responded that for an excavation the state would require a 25’ setback, like for a gravel operation. That can be waived by the Planning Board if the circumstances are different. Other than that the Wetlands Bureau require to take all precautions and follow best management practices but there is no setback to that unless you are on a lake or a water body greater than 10 acres which Shoreland Protection would fall into.

Ms. Mical: I believe all he is asking us is for a variance to the setback from the road from 50’ to 21’. Mr. Vose confirmed, yes, that is all I am asking.

Ms. Hinnendael asked if they would need to request a setback to the wetlands? Ms. Mical responded that DES will let them know. Mr. Vose responded that this is poorly drained soil, this is not controlled by Shoreland Protection.

Mr. Vose added that there are existing neighboring homes that were built prior to the setback which do not meet the current setback. The requested setback is from the corner of the garage.

Ms. Mical corrected Mr. Vose stating that the deck on the front of the house does count as part of the building. The measurement would have to be taken from the closest building point.

Ms. Mical clarified for a board member that a lot line adjustment will be by deed and cannot be sold separately, like a merger.

Ms. Hinnendael: For clarification, I understand from the Planning Board the larger (donating) lot cannot be made smaller that what is required for that zone. Planning Board [Nov 20, 2006] requested the non-conforming lot be granted enough acreage to meet the setbacks.

Mr. Vose pointed out that a recent ZBA decision made a non-conforming lot more non-conforming when they approved the bank to go from 16’ from the right of way down to 9’. Ms. Hinnendael responded that this example was an existing building in the business district with an extenuating set of reasons for their request.

Ms. Hinnendael asked how big the house is. Mr. Vose responded it is a 2 bedroom.

Mr. Davies asked if they had considered a smaller home, this looks like a 30’x 50’. Mr. Vose responded that this is a reasonably sized 2 bedroom home.

Chair Thoits closed the meeting and opened the public hearing.

Roger Shampney, concerned about wetlands, I live higher and I was forced to move my septic system 25’ closer. I am concerned about the wetlands.

Hearing no additional speakers, the Chair closed the public hearing and reopened the meeting.

Martha Mical made a MOTION to grant a variance for the required right of way setback of 50’ to 21’ from the road. I feel it is not contrary to the public interest; this is in an area with other homes. The lot line adjustment must be done to build the house, but it doesn’t have anything to do with the adjustment. Chair agreed if the Planning Board does not approve the lot line adjustment this home cannot be built. Ms. Mical added that she feels it meets the criteria of the five required statements. Chair Thoits added that she feels justice would be served to the owner as it was a pre-existing lot. Eric Rodgers SECOND the motion.

Ms. Hinnendael: I’m assuming that this means that the Planning Board could still say to you that the house needs to be relocated. Ms. Mical responded that the building permit process may prohibit the location but the Planning Board does not do a site review for homes, just for the lot line adjustment.

After some discussion on the wording, the MOTION was restated by Ms. Mical to read: To approve the variance of 29’ for the 50’ setback allowing 21’ from the right of way for map 15, lot 47-5, for the reasons provided in the application and read into the record tonight. Ms. Hinnendael SECOND the motion.

Chair instructed the Board a Yes vote will allow the variance; a No vote will deny the variance. MOTION PASSED unanimously.

Informational: Christian Hartshorn Map/lot: 3, 22 in Warner and map/lot: 2, 6 in Hopkinton, property frontage on Pleasant Pond Road in Hopkinton.

Mr. Hartshorn asked if he was in violation of any Warner zoning violations. He built a home over the town lines stating "I understood I would need to annex land in Warner to meet the area ordinance to build in Hopkinton." I built the home in the most reasonable location; not where the building permit issued by Hopkinton authorized the building. The kitchen and some bedrooms are in Warner the balance of the house in Hopkinton. I am meeting with Hopkinton next week. Currently 110 acres is in Warner in district OR1, 8/10 of an acre in Hopkinton. I want to subdivide the house from the rest of the land without putting in a road. In order to do that I would need a variance of the frontage in Hopkinton. It is my intent to put the large chunk of land in Warner in current use without a road and leave it as is versus selling lots. I do need to make the house lot conforming in order to sell it.

Ms. Hinnendael: We cannot create a nonconforming lot which is what this would be without the appropriate amount of frontage. I don’t think we can give you an opinion; obviously you will need a variance.

Ms. Freeman distributed some larger maps to help visualize the property. These maps were submitted in September 2006 by Mr. Hartshorn, when he submitted a request for a subdivision that he chose not to follow through on. [Mr. Hartshorn collected the maps after the discussion.]

Mr. Hartshorn: If a frontage variance is granted hypothetically what would result is this whole thing would become a building lot. None of it could be subdivided without putting a road in. If a road was then put in then the requirements would be the 2 acres, 200’ frontage, minus all slopes and wet then where the zone line goes through it would be 5 acres minus the slopes and wet. Mr. Rodgers commented that you could put 15 houses in there on a cul de sac. Mr. Hartshorn responded I have a conceptual of 10 with 68 acres in open space. Doing a conservation subdivision is 10 lots, the smallest being 1.8 and the largest 7.6 acres. Mr. Hartshorn mentioned that he has approached the abutters about purchasing additional land – putting a road in is not justified for only 10 units.

Mr. Hartshorn: Without a variance I would be forced to go through a major subdivision and put the road in, not the direction I want to go. I do need to be able to subdivide the house out to sell it. This is the house I live in.

Ms. Mical: We would absolutely have to work with Hopkinton, they are the road frontage. I would suggest you put an application in to both boards and request a joint meeting

Zoning Board Procedures:

Regarding the Zoning Board Procedures, last updated June 8 2005, "Zoning" should be added in the text in various locations. Ms. Mical made a MOTION to revise the procedures to include references to ‘Zoning" in front of ‘board’ where appropriate. Mr. Rodgers SECOND the MOTION. MOTION PASSED unanimously.