BELMONT LAND USE OFFICE

Transcription

1 BELMONT LAND USE OFFICE ZONING BOARD OF ADJUSTMENT Wednesday, August 25, 2010 Regular Board Meeting Belmont Corner Meeting House Belmont, NH Present: Staff: Chairman Peter Harris; Vice Chair Norma Patten; Members Pleasant Oberhausen, Linda Couture and Marshall Ford; Alternates Edward Hawkins and Mark Mastenbrook. Candace Daigle. ABUTTERS HEARING Jon & Allison Daigle: Request for a Special Exception of Article 5 Table 1 of the Zoning Ordinance to house agricultural animals (horses). Property is located at 24 Forest Drive in an RS Zone, Tax Lot , ZBA # 4210Z. At least three members have viewed the site. Staff handed out the Conservation Commission report, public letters from Olson-Wilder and Horan, and a vicinity map. Mr. & Mrs. Daigle were present for this application. Mr. Daigle explained that they have two horses currently on the property; brought there four years ago. Prior to bringing in the horses they checked with their abutters, Horan and the previous owner to the left that is now gone. Both had no problem with the proposal. They talked to the Code Enforcement Officer at that time about Article 4 of the Zoning Ordinance which lists the minimum standards for the keeping of Agricultural Animals. In reviewing that list they saw that the minimum lot size was one acre. They never looked further at Article 5 which is the actual permitted use table. Now they understand that under Article 5 they actually require three acres in that zone. There had been no ill intent to circumvent the ordinance at the time the horses were brought onto the property. They just wanted to let the Board know they had originally looked at the Ordinance and had the approval of their abutters on each side. The area behind their lot is a large wooded area that goes a ways before reaching the next house. Mr. Daigle explained that they use best management practices in the keeping of their horses. They spread lime to mitigate any odor. Manure is removed annually so there s no odor. They use Spaulding fly predators to stop fly larvae from producing. They have even discussed with neighbors that there are absolutely no flies. They have tried to be good neighbors and adhere to sound

2 Belmont Zoning Board of Adjustment -2- August 25, 2010 management practices. Mr. Daigle stated that they believe there is no negative impact on property values. When they looked to refinance, the value of their property just rose, not the reverse. They have not negatively impacted the neighborhood. P. Oberhausen confirmed they have two horses and asked if they plan to have more. Mr. Daigle stated, yes, they have two but do not plan to have more. P. Oberhausen asked if they plan to have any other type of agricultural animal on the property. Mr. Daigle answered, no. Mrs. Daigle stated they have one horse for each of them. They don t plan to become a farm. P. Oberhausen noted he was leery because the next owner could put in something else. Mrs. Daigle noted that was a valid concern, but in working in this town and others as a visiting nurse she has observed a lot of properties in this town where there are a lot of pigs and chickens that are not enclosed in any type of area or kept up well. She stated they are proud that they take meticulous care of their surroundings. Mr. Daigle referred to the letter from Olson-Wilder, an abutter claiming they can smell horse manure at times and are opposed. Mr. Daigle noted he had not received the letter until tonight. He reiterated that they cover the manure and use lime. He believes they mitigate any impact from their use. He stated that if ever anyone had mentioned a problem, they would have also stepped up their efforts. They see and wave to the Wilders every day and the issue has never been brought up to them; not once in four years. M. Mastenbrook asked about the Daigle s tenure in the development. Mr. Daigle noted they ve lived there longer, but the horses have been there for four years. N. Patten asked about the horses proximity to the Daigle s well. Mr. Daigle noted the paddock is to the rear and the well is located at the front of the lot. It is an artesian well. E. Hawkins noted the lot is all rock so it shouldn t be an aquifer issue. P. Harris asked if the Daigles had any paperwork that supported their earlier talk with the Code Enforcement Officer. Mr. Daigle stated they did not, and had just spoken with him verbally. More recently they talked to someone in the town and pointed out that Article 4 should point to Article 5 where the uses are permitted. M. Ford asked about the ages of the horses. Mrs. Daigle responded they are 16 and 17 years of age. M. Ford asked if the Daigles intend to replace them when something happens to them in the future. Mrs. Daigle stated that it is never their intent to have more than two horses on site. They are not in the businesses of buying, selling or breeding horses. But they would probably replace one, but not add to the two. C. Daigle pointed out that the private development covenants do not allow agricultural animals so there should have been notice to the owners that there was an issue. However, private covenants are not enforced by the Town. She provided a copy of a sample development deed and a copy of the related covenants. The chairman open the hearing to public comment and referred to the letters received. L. Couture asked if the Daigles had known about the covenants. Michael Fournier stated he purchased his property on Forest Drive four years ago. During the closing he made a specific point

3 Belmont Zoning Board of Adjustment -3- August 25, 2010 about the fact that he planned to have ponies and asked whether there were any such restrictions. The real estate agents and GMAC assured them there were no restrictions. He was told about an Association, but since owning has asked several times about the officers and meetings. There are none. They were not aware of any covenants. We were told if there is no association there are no covenants. He would be willing to legally pursue that issue with Allen and Cheryl Wright who were the agents. He bought the biggest dump on the street. He does not plan to take it lightly that it s suggested he did not do his homework before buying. They did a full title search. If there s nothing stated on the deed nobody is going to be able to find anything about a property. P. Harris pointed out that due diligence would have included contacting the Town. Mr. Fournier said he was living out of state and it would not have been convenient for him to do. He took it up with his legal representatives. Gail McCown an abutter to Fournier noted she has been on her property for 19 years and there s never been an association meeting. The association was defunct when she moved in. P. Harris went through the fact that personal needs are not a basis for a zoning action. He noted that it is all rural behind the Daigles, but if you look at the big picture, it s a housing development. An acre and a half for horses is not a lot of room. He continued by explaining that Belmont was late in introducing zoning and there are a lot of animals around, but that s why zoning now addresses the issue. The tough position comes for the Board in that it s always difficult when applications are denied. He suggested that realtors are in the business of selling property, it s important to come to the Town for additional information. Mr. Daigle pointed out that s why they go to the extent of management practices to mitigate any issues. When spring comes, the manure pile is gone. They try to be good neighbors. He wished the the Wilders had come to them to let them know. It s a shock to hear about it. P. Harris noted the Daigles do have a very attractive place. N. Patten asked about the 3 to 5 months that the horses are not on the property. Mrs. Daigle noted it is during the warmer months. She is able to pasture the horses in Loudon at a friend s farm so they are able to graze. P. Harris is not satisfied that the application meets all the criteria. He suggested more evidence was necessary regarding the applicants attempt to comply at the time the horses were placed on the property. If the Board chooses to table for such information, staff can also print out the subject deeds to see if notice of the covenants were in both deeds. It would give the Board more information. MOTION: P. Harris moved to table the public hearing until to 7pm, September 22, 2010, this location for the applicants and staff to provide more information. The motion was seconded by P. Oberhausen, but failed to pass (2-3 N. Patten, M. Ford and L. Couture in opposition) L. Couture asked whether if the use complies with the best management practices of Article 4, can the Board approve the application with the restriction that only two horses can be there and no future owner can expand the use or add other agricultural animals until all approvals are in place. C. Daigle indicated the Board can add those restrictions on an approval. There being no further questions or comments the chairman closed the public hearing.

4 Belmont Zoning Board of Adjustment -4- August 25, 2010 BOARD ACTION Jon & Allison Daigle: Request for a Special Exception of Article 5 Table 1 of the Zoning Ordinance to house agricultural animals (horses). Property is located at 24 Forest Drive in an RS Zone, Tax Lot , ZBA # 4210Z. MOTION: L. Couture moved to grant the stated application on the following basis: a. The Ordinance specifically allows the use when a Special Exception is granted. b. The specific site is appropriate for the use in that they have situated their barn far enough away from the septic & well. c. No factual evidence is found that property values in the district will be reduced. It is a neighborhood, but it s a rural neighborhood and the property is 1.5 acres in size so that there is space for this to happen. d. There is no valid objection from abutters based on fact. There was one letter, but with no factual evidence. It just stated their feelings. e. No nuisance or hazard is involved because fencing and shelter is provided and it s landscaped to protect the environment more. f. Adequate and appropriate facilities will be provided. The owners must continue to follow best management practices and pest control. g. Septic facilities do not apply. h. Structures must otherwise meet all dimensional requirements of the Ordinance. The property is not located on an aquifer. And on the following conditions: a. The use shall comply with the best management practices of Zoning Article 4.J. b. The use is limited to two horses. No other agricultural animals are allowed. The motion was seconded by M. Ford, and carried (3-2 P. Harris and P. Oberhausen in opposition) ABUTTERS HEARING Michael & Veronica Fournier: Request for a Special Exception of Article 5 Table 1 of the Zoning Ordinance to house agricultural animals (horses). Property is located at 27 Forest Drive in an RS Zone, Tax Lot , ZBA #4310Z. At least three members have viewed the site. Staff handed out the Conservation Commission report, a public letter from Olson-Wilder, and a vicinity map. Mr. & Mrs. Fournier were present for this application. Mr. Fournier noted that much of his information would just be a repeat of the Daigles presentation. His ponies were brought on site a couple of months before the Daigle horses. He has tried very hard to keep everything in order. Several of the Board members visited the site as part of this application review. They keep the site in order and will continue to do so. These are pets. They aren t ridden.

5 Belmont Zoning Board of Adjustment -5- August 25, 2010 They are not out unless they are with Mr. Fournier or his wife. The ponies have been a big asset to the neighborhood and the Board has received letters to that end. Mr. Fournier stated his wife put together a pretty good packet. P. Harris asked about the shed setback. Mr. Fournier stated it was there before they purchased the property. He does not know where it came from. Mr. Fournier noted the house was built in All his wells and water supplies are elevated above the area where the ponies are. The wells are 75 higher and 200yds away from the ponies. He stated his lot is a little larger than the Daigles lot. He bought the property about three years ago. P. Oberhausen asked if the Fourniers were planning to have horses when they purchased the property. Mr. Fournier clarified that they do not have horses; they have ponies. They are pets. P. Oberhausen asked again if it was a consideration when they purchased the property. Mr. Fournier responded, yes, and that s why he made a point during the closing and the realtor and the prior owner of the property assured him there we no covenants and it would not be a problem. He said they only found out two years ago that there even were covenants. He said they have three neighbors who also knew nothing about it; so why would they have known? P. Oberhausen noted when he purchased his rural property several years ago he spent a lot of time at the town hall asking questions about the property and what was and was not permitted. You have to do that when you re purchasing or building. Mr. Fournier noted he has owned property in Gilmanton for many years, but was told right up front that there was an association and what his responsibilities were. He went into the Belmont property closing asking the questions but was misled. He can t go back four years now. He stated he paid a lot of money for the title search and this did not come up. P. Harris noted the Fourniers had purchased in 2007 and the staff report history indicates the shed was there prior to that time. The chairman opened the hearing to public comment. Ms. Gail McCown said she had sent a letter. Her husband has heart/lung disease and the Fourniers have been very good to them. Years ago her husband had horses and it s nice the Fourniers bring the ponies over and the neighborhood children enjoy it. P. Oberhausen pointed out the covenants were clearly recorded in the Registry of Deeds and read the section restricting the keeping of agricultural animals. That is what is recorded in the Registry. Mrs. McCown noted that one of the ponies is smaller than a German Shepherd dog. P. Oberhausen referred to information included on the application form and asked if Mr. Fournier s children take care of the ponies. Mr. Fournier said no, his son was older and lived away. The children he referred to were neighborhood children. There being no further questions or comments the chairman closed the public hearing. BOARD ACTION Michael & Vernocia Fournier: Request for a Special Exception of Article 5

6 Belmont Zoning Board of Adjustment -6- August 25, 2010 Table 1 of the Zoning Ordinance to house agricultural animals (horses). Property is located at 27 Forest Drive in an RS Zone, Tax Lot , ZBA #4310Z. MOTION: N. Patten moved to grant the stated application on the following basis: a. The Ordinance specifically allows the use when a Special Exception is granted. b. The specific site is appropriate for the use. c. No factual evidence is found that property values in the district will be reduced. It was viewed by the board and looks very nice. d. There is no valid objection from abutters based on fact. Only one abutter wrote against the use, but did not attend the meeting and provided no factual evidence. e. No nuisance or hazard is involved. f. Adequate and appropriate facilities will be provided. g. There is adequate sewage disposal for the home. h. Structures must otherwise meet all dimensional requirements of the Ordinance. And on the following conditions: a. The use shall comply with the best management practices in Zoning Article 4.J. b. The use is limited to two ponies and no other agricultural animals on this property. The motion was seconded by L. Couture, and carried (3-2 P. Oberhausen and P. Harris in opposition) ABUTTERS HEARING Shannon Day: Request for a Variance of Article 5 Table 2 of the Zoning Ordinance to construct a single family residence closer (44.1 ) to the front property line than allowed (50 ). Property is located at 296 Province Road in an R Zone, Tax Lot , ZBA #4410Z. C. Daigle handed out a letter from Attorney Suzanne McKenna representing the Paradises, a letter from NH DOT and a sketch from staff showing a possible foundation adjustment to meet setbacks. Mr. Chris Cleveland and Ms. Day were present for this application. Mr. Cleveland noted they purchased the property in May. They had a house given to them from the Benson lot on Middle Route. The lot they purchased was of interest to them because it had a septic and well so they wouldn t have to put them in. The only problem was there was a lot of crap there; an old abandoned trailer and a lot of other junk. There was a foundation in there that they took out along with some porches. They filled out a building permit to move the house off Middle Route to this lot. They got the permit; went through everything they needed to do. They moved the trailer down back for the time being and the Benson s wanted their house moved out. They put in a

7 Belmont Zoning Board of Adjustment -7- August 25, 2010 foundation near the existing leach field and septic tank. The septic and well were checked out. They put the foundation in with a full walk-out in the back. They called the building inspector to see at what point he wanted to inspect. He said he d inspect the whole foundation. The foundation was all done but not backfilled when he inspected. The inspector gave Mr. Cleveland the ok that everything looked good with the exception of foaming and water sealing the concrete walls. So Mr. Cleveland proceeded and went forward and got the house parts up on trailers. Mr. Cleveland reiterated that the code enforcement officer came out and gave the ok that everything looked good; setbacks were all set. The front setback was tricky because of the high banking and the property lines being on an angle but Mr. Cleveland reported he pulled lines and got the foundation back to where he thought they were 50 back. They moved the house parts down on June 28 th ; got the trailers down there with the house parts sitting on them. The Building Official came back and said there was a problem with setbacks; that someone had notified him that the setbacks were not correct. Mr. Cleveland and the building inspector went over it and strung the lines and the building official said it didn t look like it met setback. Mr. Cleveland stated they had to take the house parts off the trailers and get them watertight. He presented a sketch of the property that has the building official s initials and date on it certifying that the building met front and north side setbacks. Then the building official changed his mind and said he wanted it surveyed and it came back that it didn t meet the front setback. Mr. Cleveland explained that the old trailer was closer than the new foundation. It sat right out there on the banking. He said there were three people measuring. Unless one really had it surveyed it would never be known that it didn t meet. He told the Board that everything should be surveyed before the Town issues a building permit because people move pins all the time. If he were to do this all over again and was requested to have a survey up front he would have gladly done it. He did pay to have it surveyed after the building official brought the matter to his attention. M. Ford asked if the replacement structure was basically on the same footprint. Mr. Cleveland replied, no, it is back about 15 further from the front property line. M. Mastenbrook noted that this was a pretty good piece of property and asked why the foundation would ever have been poured that close to the line. He suggested that before he would have started such a project he would have had it surveyed and known where he needed to be. He felt there was no hardship here as far as the land is concerned. Mr. Cleveland responded that the septic system was designed to sit where the house is. He would have put it further back, but the way the septic system is and the way it sits the house is in a perfect spot. P. Harris clarified that it was a preexisting septic system that was being used. Mr. Cleveland replied, yes. The chairman opened the hearing to public comment. Mr. Jon Paradise strongly objected to this variance due to the common driveway being not placed in the correct location on the shared sideline. He pointed out that the location approved by the Planning Board in the 1983 is clearly shown on that subdivision plan, but the driveway is actually entirely on the Paradise lot, not half on each lot. He went on to state that the proposed house placement now obstructs the approved driveway entrance. He provided a copy of the 1983 subdivision showing the

8 Belmont Zoning Board of Adjustment -8- August 25, 2010 common driveway to the Board along with the driveway permit for its installation. Mr. Paradise reiterated that he objects to the Variance because of the driveway issue. There is a ROW to the Cleveland property, but it is a ROW not a driveway. The house is fine, but the driveway is not properly constructed. It is a common driveway. P. Oberhausen referred to a recent letter from NH DOT that requests the Board postpone action on the application if a new driveway is proposed. Mr. Paradise said the driveway is intended to be common. The property line pin is correct and should be on the centerline of that driveway. Instead the whole driveway is on the Paradise lot. It needs to be moved to the property line. He also pointed out that the house is a different size than listed on the building permit. E. Hawkins asked the applicant to go through the five points necessary for the granting of a variance. He reminded everyone that this is a front setback variance only, not a side setback. P. Harris explained to Mr. Cleveland what type of information the Board is requesting he provide. Hardship is usually the hardest point to meet. For instance if the entire lot except the present location was unbuildable, that would be an argument for hardship. It needs to be related to the land. Mr. Cleveland pointed out the hardship was the location of the septic system. The foundation is also located on a natural grade for a walkout. The site they chose was already set up with the amenities. The electrical power is also on that corner. He reminded the Board that the structure that was previously there was closer in all ways to every boundary line. The reduced front setback is not likely to cause a problem abutting 107 over a 14 bank. Mr. Cleveland noted that most of the houses on Rte 107 sit closer to the road than their proposed location. He knows that the basic purpose for a road setback is for road development. M. Ford explained that Rte 107 a ROW, a 4-rod ROW. It s very wide. Most roads are 3 rods. It s a public ROW. It has to stay open and Mr. Cleveland can t block it or put anything on it. There s also a cemetery that sits right on the front corner of the lot. The state will not move cemeteries anymore because of the cost/process. Mr. Paradise corrected Mr. Ford in that the cemetery is actually on the Paradise lot. M. Ford continued to say that if the road was to be widened the state would go towards the other side of the ROW. P. Harris suggested that Mr. Cleveland s mistake has not created any hardship to the State on upgrading the road. Mrs. Paradise stated that the common driveway would, in fact, be through part of that 14 banking. P. Harris stated it is just baffling that Mr. Cleveland could have made this mistake because the lot is so deep. However he pointed out that septic systems are hard to get designed and installed. N. Patten indicated it was good to remove the preexisting trailer which was in such poor condition. E. Hawkins turned the conversation back to zoning issues and the fundamental reason the Board grants them. The amount of developable area on the lot is huge. Sympathy is fine, but these issues don t speak to fundamental zoning. There is ample conforming space on the lot. That s the most important objective fact in this case.

9 Belmont Zoning Board of Adjustment -9- August 25, 2010 P. Harris referred to the steep slope issue. E. Hawkins pointed out that the slopes are along Rte 107. If you move the foundation into a conforming footprint it s just moving further away from the steep slope. P. Harris asked to see the approved septic design in relation to the foundation. He said he would be hard pressed to think that moving the foundation 6 would impinge on the septic system. He asked if he can construct the house further from the system. C. Daigle suggested he could. Mr. Cleveland stated he didn t have the approved design. Mr. Paradise stated the plan also doesn t show the well. C. Daigle said he does not have to in order to get a building permit or apply for a variance. Mrs. Paradise said there s no parking area on the Cleveland lot and when they back out they re going to back onto the Paradise property, she s afraid for the safety of her children. P. Harris noted the applicant spoke the best he could as to meeting the variance criteria. Mr. Cleveland stated that he has a partially completed structure with all their possessions in it under only tarpaper. He s been issued a cease and desist and can t wait for another meeting. Some of the sheetrock has already gotten damp. He doesn t want the Town to be liable if the meeting is postponed. Mr. Cleveland complained that people have been living there for 30 years and nobody has ever brought up the driveway problem before. C. Daigle noted that both Ms. Day and the Paradises have known about the driveway issue for at least the past 2 months but have failed to take any positive action to cure it. Mr. Cleveland said the building official approved the setback. P. Harris pointed out that was based on Mr. Cleveland pointing out where the property line was. P. Oberhausen tried to explain why NH DOT has an interest in the problem. He suggested Mr. Cleveland s relief was back against the seller of the property. P. Harris noted that the Board s actions are not always pleasing, but it s been suggested by NH DOT that we see where the driveway is going before we move forward. Mr. Cleveland noted the location is also important because the power is there and everything. When he and Ms. Day met the Paradises, the Paradise s never mentioned the driveway issue. Mr. Cleveland went on to explain that even if the driveway was in the location that it s supposed to be the Board would still approve it, so why is this a problem. C. Daigle noted that the setbacks are from the property lines, regardless of the location of the common driveway. E. Hawkins feels the front setback is not going to be impacted by the driveway issue. He reiterated that the primary objective fact is that there is ample conformable space on that lot to comply with all four setbacks. C. Daigle noted that she had clearly warned Mr. Cleveland prior to the issuance of the building permit that he had to be sure to meet the front setback. Mr. Cleveland stated the setback is based on pins, not driveways. He would not be in front of the Board if he met the setback. He said he would never have moved the house down onto the lot if the setbacks hadn t been initialed by the building inspector. It became an issue when the building

10 Belmont Zoning Board of Adjustment -10- August 25, 2010 official signed the plan. Mr. Cleveland repeated that their personal property is getting wet. Based on a signature he was all set to keep on going. And now he has a building sitting there. The building official should have come out and told us. Why was he out there two days after we moved the house telling us that? He should have told us sooner. What they are proposing will not affect the driveway. P. Harris noted that the hardship for the Board is you could have placed it in a conforming location, but did not. Just because you made a mistake it isn t necessarily a hardship. It s not an easy application to grant. Courts usually wouldn t make someone tear down a house. We have to be a user-friendly board and get the right information. Some people just build something and then come in for the approval. Mr. Cleveland assured the Board that was not the issue here. P. Harris continued that it s important to know where your property lines are. Mr. Cleveland noted that if the Town didn t require every applicant to get their property surveyed then this must come up a lot. P. Harris disagreed, saying that they usually saw it in older homes. It s rare in new construction because people make sure they know where their lines are. There being no further questions or comments the chairman closed the public hearing. BOARD ACTION Shannon Day: Request for a Variance of Article 5 Table 2 of the Zoning Ordinance to construct a single family residence closer (44.1 ) to the front property line than allowed (50 ). Property is located at 296 Province Road in an R Zone, Tax Lot , ZBA #4410Z. MOTION: M. Ford moved to grant approval on the following basis: 1. The variance will not be contrary to the public interest because allowing a home to remain will not impact the public. 2. The spirit of the ordinance is observed because a home has existed at this location for many years and the new footprint is 15 further away from the road than the preexisting footprint and is a replacement. Moving the unit again would not remove the preexisting violation. The proposal does not constitute a nuisance and it would be a hardship to diminish the enjoyment of the property. 3. Substantial justice will be done because there is no factual evidence that the proposal will diminish surrounding property values. 4. The variance would not diminish the value of surrounding properties. 5. Owing to special conditions of the property, that distinguish it from other properties in the area, denial of the variance would result in unnecessary hardship because of the following: a. no fair and substantial relationship exists between the general public purpose of the ordinance provision and the specific application of that provision to the property because violation of the setback is a preexisting nonconforming condition that needs a variance to be buildable; and b. the proposed use is a reasonable one because there will be adequate

11 Belmont Zoning Board of Adjustment -11- August 25, 2010 facilities to assure health and a certificate of occupancy is required prior to occupying the dwelling. And with the following conditions: 1. No other structures or additions (incl. decks, porches, landings, etc.) that do not meet setback are allowed by this approval. The motion was seconded by N. Patten. E. Hawkins suggested that M. Ford had referred to the preexisting footprint, but the building was, in fact, not built in the preexisting footprint, but further back. M. Ford agreed he had misspoken and corrected #2 to the above language. The motion carried (5-0) ABUTTERS HEARING - Abutters' Hearing Linda Merriam: Request for a Variance of Article 15 Dwelling, Lot of the Zoning Ordinance to create a second dwelling unit within an existing detached accessory structure (garage)on a lot already developed with a single family dwelling. Property is located at 41 Gardner s Grove Road in R & RS Zones, Tax Lot , ZBA # 4510Z. C. Daigle handed out Conservation Commission comments. Mrs. Merriam and her son Ryan were present for this application. Ms. Merriam stated she is requesting two bedrooms over the detached garage. She will take care of the septic by putting in a separate system to accommodate the two bedrooms. Nothing has proceeded yet other than the septic approval from the state. All fire codes will be met. The hardship is she bought the house with the intension of using it as extra bedroom space. She has eight children, some of whom are out of state and come with grandkids to visit. She was just counting on being able to use the space over the garage that is already there. It s a completed game room. She offered to answer any questions. M. Ford asked if there was going to be a kitchen in the unit. Ms. Merriam replied, no. It is for bedroom space only. There will also be a bathroom with a shower. So they have planned for its own septic system. P. Oberhausen stated that actually the proposal will create living space. Ms. Merriam agreed it was a bunk room or extra living space. P. Oberhausen stated it would create additional living quarters on the property. Ms. Merriam agreed, but that it would be for her own personal use. P. Oberhausen noted that it could be rented out by the next owner. Ms. Merriam said the next owner should have to through the ZBA to do so. P. Oberhausen explained the approval goes with the property and is recorded at the Registry of Deeds. Ms. Merriam reiterated it was for her personal use. P. Harris agreed the approval goes with the property. Ms. Merriam asked why it could not be personal. P. Harris noted that could not be enforced. He referred to the fact that many others would probably like to do the same thing, starting out with a personal use. He felt that allowing people to live in garages is not always safe. The Fire Department would not necessarily know that people are

12 Belmont Zoning Board of Adjustment -12- August 25, 2010 living in garages. Adding a unit may not sound like much, but it is an impact to community services. In hard economic times, it s an attractive alternative for people, but when you start allowing two residences you can impact a single family lot. Ms. Merriam stated the use would be safe because she will have a fire system in place, all fire codes would be met including window sizes. She has a real need for extra bedroom space. P. Harris stated that, again, this is a situation where you have created your own hardship. You have other alternate methods available. You can subdivide and have a dwelling on the second lot. You are thinking of your own situation, but the Board has to also look at it from the community s perspective. Ms. Merriam said that s not fair because this lot could be a family property, there for a hundred years. P. Oberhausen suggested that it could alternatively be sold tomorrow and become a second dwelling on the property which is against town ordinances. Mr. Merriam said there could also be anybody living in the main house; the Town does not know who s in the house either. P. Harris said it s a popular request, especially for people on the lakefront who want to change their garage into living space and they ve been denied. Once the Board allows the residential use anyone can be put in that second unit. The big picture is impact on school and other town services. Ms. Merriam said the tax bill will go up if she installs two more bedrooms. P. Harris noted it was not the same as another single family home on its own lot. The increase would not be enough to cover services. He asked if Ms. Merriam had investigated the possibility of subdividing the property. Ms. Merriam agreed she had not because she never dreamt she would have to. She indicated the garage was there when she purchased the property. C. Daigle noted the ordinance has not changed since that time and a second detached residence was not a permitted use when she purchased the property. P. Harris pointed out the language contained on the building permit for the garage which specifically prohibited any residential dwelling use. That record existed for viewing since the permit was issued in C. Daigle pointed out that one of the main purposes of the regulation was that a basic tenant of zoning was to group similar uses in each zone. People who live in a single family zone have some level of expectation that abutting properties will not be developed with multiple detached dwellings, that people will adhere to the requirements of the zoning ordinance. P. Harris referenced other problems that could occur such as multiple dwellings under one 911 street number and mail delivery and emergency response issues. Ms. Merriam referred to her abutters as mainly farms similar to the property she s set up on. She is not on the lake. M. Ford suggested that a subdivision might be a possible solution. There appears to be both the required road frontage and acreage. It might be something to look into. Rather than varying the zoning ordinance a subdivision could be a conforming action. M. Ford stated the Board has not approved a separate residence on a single residential lot and that is what this proposal is. Ms. Merriam stated again that it was only for her personal use. She agreed that someday she might sell, but right now the property is intended to be handed down, to stay in the family. She does not understand why each individual owner, if they want the use doesn t have to

13 Belmont Zoning Board of Adjustment -13- August 25, 2010 come before the board. P. Oberhausen stated the proposal is to put a residence above the garage. It s a residence; it does not matter if the residents are children with spouses and children; it s a residence. Ms. Merriam noted that three of her children still live at home and others come from out of state. She needs the space for her family that is here. She s doing everything the legal way. She s making sure all the safety codes are met. She s putting in a second septic system. P. Oberhausen agreed she is offering to do all the safety measures; but having a second detached dwelling with residents in it on a single property is simply against the code of the Town. The chairman opened the hearing to public comment. Mr. Dennis LeClerc stated he is an abutter across the road. One of the advantages when he purchased his property was that it was a single family residence. The Merriam lot has a shared beach and his concern is not so much if the Merriams are using it for their family but in the future if it s sold another family could increase the beach use. His property value would be decreased because his beach rights would be diluted, he would have less access with more families. The issue brings up several things. He said there is a sewage smell in the area in the spring. The Merriam lot is the only lot that still has a septic system. He also referred to the fact that the garage already has heat which is a violation of the 1998 building permit. He asked if it already also had a half-bath to which Ms. Merriam answered, no. Mr. LeClerc stated it was going to be a problem if the property is sold. Ms. Merriam asked how this project would devalue Mr. LeClerc s property. It s only a single family dwelling. Mr. LeClerc stated if the property sold and the dwelling was eliminated then it would not impact the value of his property. P. Oberhausen stated that if the variance was granted and did not meet the legal basis for the granting of a variance there are going to be a lot more people with an argument to do the same thing. This particular restriction in the ordinance is a very important law. Ms. Merriam said every citizen has to fill out a survey for the Town as to who lives on their property. C. Daigle noted that was not the case. Mr. Merriam stated they could have 18 people living in the house and the Town could not do anything about it. The Board answered that is true, but it would not be a zoning violation. Ms. Merriam said she is willing to put in the septic system and do everything the way it needs to be done. She believes that would bring the value of the neighborhood up, not down. Mr. Merriam asked if we subdivide the lot and reduce the lot size wouldn t that reduce the neighborhood value? The Board answered, no, that would be a conforming use in that zone. P. Harris noted that the Town speaks mainly through its master plan; looking for such things as rural character, large parcels, farmland, open space. Back in the1980s Belmont had the cheapest tax rate and properties were bought up, trailers came in and large developments with many families increased the school impact. Since then the Town has adopted good regulations and processes and learned

14 Belmont Zoning Board of Adjustment -14- August 25, 2010 through the master plan the importance of the community build out. The Town puts money away annually for CIP items now so the balance works. The reason for this restriction is you can double your density with no change in houses which doubles the impact on taxes. You can slowly turn yourself into a city from a small town. Ms. Merriam said it s just not a fair way to do it. It should be done person by person each time the lot is sold. Each one should have to face the music and go before the Board. P. Harris asked if Ms. Merriam could come up with a single reason why specifically she should be given this approval. Ms. Merriam stated that everybody should be able to do this. P. Harris reiterated safety is one reason that they cannot. Ms. Merriam reiterated that she is willing to put all the safety items in. She stated that she abuts farms. Mr. LeClerc noted that it s not farms across the street or next to her. He asked where she was referring to. She said there is one behind her. Mr. LeClerc said he would not have a problem if there is some kind of permit for a part-time use or bunkhouse. P. Oberhausen stated it s either a residence or it s not. Mr. Jim Culpon also from across the street asked about the probabilities of subdividing and still using the garage on the new lot, or would they have to build a second residence. The Board said there was insufficient evidence provided to answer that question. He said the Board was pushing for a subdivision. The Board clarified that they had raised the issue as a possible option. Ms. Merriam could also simply construct more bedrooms on the existing house. Mr. Culpon asked about the beach rights, what happens to them? He suggested a guest house on the corner of the lot. He also asked why the Merriams were not connected to the sewer. P. Harris answered that was a question for the Public Works Department. A new house may be mandated to connect. There being no further questions or comments the chairman closed the public hearing. BOARD ACTION Abutters' Hearing Linda Merriam: Request for a Variance of Article 15 Dwelling, Lot of the Zoning Ordinance to create a second dwelling unit within an existing detached accessory structure (garage)on a lot already developed with a single family dwelling. Property is located at 41 Gardner s Grove Road in R & RS Zones, Tax Lot , ZBA # 4510Z. MOTION: P. Harris moved to deny approval on the following basis: 1. The variance will be contrary to the public interest because it will not maintain the single rural ownership concept the area was intended to be. 2. The spirit of the ordinance is not observed because the master plan supports retaining rural character and addresses safety and welfare which may be impacted by two residences on one property. 3. Substantial justice will be done by the denial. 4. The variance may diminish the value of surrounding properties because to allow the expansion of a separate dwelling use could very well diminish property values through overdevelopment and impact the use of the common beach in that area. 5. Being no special conditions of the property, that distinguish it from other

15 Belmont Zoning Board of Adjustment -15- August 25, 2010 OTHER BUSINESS: 1. Minutes: properties in the area, denial of the variance will not result in unnecessary hardship because of the following: a. a fair and substantial relationship does exist between the general public purpose of the ordinance provision and the specific application of that provision to the property because it is a preexisting property for one dwelling unit, being used in a conforming manner and there was a specific condition on the 1998 garage permit that the building not be used as a residential dwelling; and. b. the proposed use of a second dwelling on the same property is not a reasonable use. The motion was seconded L. Couture and carried (5-0) MOTION: On a motion by P. Oberhausen, seconded by N. Patten it was voted to accept the minutes of July 28, 2010 as written. (5-0) 2. Staff Report: C. Daigle reported that the Planning Board has approved the operating budget request for 2011 at $42,082 which is a reduction of $727 (1.7%) over the 2010 operating budget. The largest increase was in the public noticing line item. There was an offsetting reduction in the computer line item. Payroll numbers are not yet prepared by the Selectmen. There is also an anticipated $1,550 (12.4%) increase in revenues. 3. Notices of Decision: The chairman signed the Notice of Decision forms from the July meeting. No Rehearing Requests have been received. 4. Belknap Firearms: C. Daigle reported that staff, the applicant, and the acoustical consultant will meet on September 9 th to establish the parameters of the test and to set a date for the test. The Board discussed possible testing dates and requested that it be a weekday, late afternoon to accommodate as many people as possible. They requested that the consultant take the leaf cover into consideration and determine how shells are chosen. The date will be noticed. After the test is complete and the engineer s evaluation has been received the public hearing will be reopened at a subsequent monthly meeting. 5. Tax Maps: The Board members received updated tax maps. 6. Adjournment:

16 Belmont Zoning Board of Adjustment -16- August 25, 2010 MOTION: On a motion by P. Oberhausen seconded by L. Couture it was voted unanimously to adjourn at 9:32pm. (5-0) Respectfully submitted, Candace L. Daigle, Town Planner