Zoning Board of Adjustment

Pillsbury Memorial Hall

Meeting Minutes

July 20, 2016

 

Present:  Zoning Board of Adjustment Members:  Derek Lick, Chairman; Doug Sweet, Ed Canane, Dane Headley, Sue Reel, Members; William Hallahan, Alternate left when it was determined that there was a full board; and Laurie Hayward, Land Use Coordinator; Alan & Teri Gauntt, Applicants, and Erin Foley and Ray Jameson, Abutters.

The meeting was called to order at 7:05 PM, by Derek Lick, Chairman.

 

Public Hearing:   The Chairman opened the Public Hearing explaining that this is a Continuance from the previous meeting in June.  ZBA Case 2016-02, initial hearing held on June 15, 2016 concerning an application by:  Alan & Teri Gauntt for a: Variance to: Zoning Ordinance Articles X.B.2 & X.D.1 as follows:  To permit a garage to be built within the setback for a wetland of less than 10,000 square feet to Tax Map Lot # 06-311,012, located partially in a Residential & partially in a Rural-agricultural District, on or at Rte 114.]

The Chair explained that at the applicant is seeking to build a garage that will include a master bedroom and bathroom on the second floor.   The issue comes before this Board because there is a wetland and it must be determined whether a variance is needed and, if so, whether the Board will approve a variance. The Chair noted that at the last meeting, there was a set of materials; but, it was determined that the materials presented did not adequately complete the application. The application submitted did not include a map that was certified by a wetlands scientist. The Chair explained that, since the last meeting, the applicant has provided a map that is certified by Audra Klumb, a wetlands scientist. As well as a map, there was a request for elevations and the packets include a copy of the Applicants’ application for a Building Permit and that does include elevations.

The Chair opened up the hearing for input. He explained to those present that he would first take input from the Applicants; then take input from interested parties; he would then close the public hearing portion of the meeting; then the Board would begin their discussion.  No additional public input is taken; but, the public is welcome to stay through the rest of the meeting if they wish.  The Chair continued, asking the Applicants whether they had anything to add regarding their application. Alan Gauntt replied that he did not.

Sweet asked the LUC whether the applicant had provided plans for any erosion control. The LUC stated that she had not received any erosion control plans, nor had she requested any. Sweet stated that he thought that was requested at the last meeting. The LUC stated that she had not included that in her notes of the that meeting and noted that there was a tape recording failure that evening.

The Chair then explained that he feels that there is an initial decision to be made at this point.   Now that the Board has received the map certified by a wetlands scientist, they can make a determination of whether a variance is required and, if so, what the variance is. The first crucial question is what kind of garage is proposed?   Is the garage a detached garage or is it an attached garage? The Chair explained that the Zoning Ordinance treats the two types of garages differently and the setbacks differ. Board members then undertook a discussion regarding what type the applicant was proposing.  The Chair noted that a detached garage only required 25 feet and where an attached garage built 2006 or later requires a 75-foot setback.  Sweet questioned the 25-foot setback, stating that he believes the setback should be 50 feet for a detached garage. The Chair opened his copy of the Ordinance to Table D.1 and noted that it did  indeed show 25 feet for a detached garage. The Chair turned to the LUC who stated that she questions whether 25 feet is correct. The LUC asked if she could leave the room to check her office for records on this. The LUC did leave and return shortly. The LUC confirmed that there is an error in some copies. The correct chart should show, for wetlands greater than 10,000 square feet and less than one acre, the setback for a detached garage is 50 feet.

The Chair returned to the question whether this is an attached or a detached garage. The Chair read two definitions from the Sutton Zoning Ordinance:

“Building, attached:  A building having any portion of one or more walls in common with adjoining   buildings.”

And

“Building, detached: A building having open space on all sides.”

The Chair stated that he finds the language ambiguous; but, their job is to interpret the language. He went on to explain how he understands the language.  He said that he considers whether there is open space on all side and if there is, it is a detached garage. He asked for members’ thoughts. Canane pointed out that he sees the question as: “is there a shared wall?” and, if there is then it is an attached garage.  There was an extended discussion about the wording and the application of the Ordinance. Headley stated that he feels that one consideration should be whether there is any sort of finished space to the connector ” breezeway” between the house and garage.

Alan Gauntt spoke and explained that he does not plan to have a foundation under the connecting structure. Sweet asked if there would be insulation and Gauntt replied that there would be insulation and heat in the connecting structure. Board members asked about the living area on the second story.  The Applicant stated that there would be a “master bedroom” and a bathroom. The Applicant stated there would not be kitchen facilities. Board members reviewed the definition of:

“Dwelling Unit: One or more living or sleeping rooms arranged for the use of one or more individuals living as a single housekeeping unit, with cooking, living, sanitary and sleeping facilities”.

The Chair stated that he doesn’t see that the issue of dwelling space is important to this decision. However, the Board does have to make the decision whether the proposed garage is attached or detached before they can go further. The decision about whether detached or attached does have an impact in terms of how out of conformance the variance requested is.

The Chair asked if there was any additional point of discussion that Board Members would like to put forth.

There being none, the Chair made the following motion:  that the Board take a vote to deem that the plans for the proposed garage are plans for a detached garage or a detached structure under the Sutton Zoning Ordinance because there is no common wall and there is no living space between the house and garage.   Canane seconded the motion. The Chair asked for discussion on the motion.  The Chair stated that he did not see the proposed structure as substantially different from an open breezeway with just a roof over it. Sweet said he feels that the plan to insulate the structure says to him that it is more like a hallway connecting the house and the garage with sleeping and bathroom facilities.  Alan Gauntt said the connector will be enclosed, but is not really heated unless the door is left open.      The Chair called for further discussion; there being none, the Chair called for a vote. The vote was split with Headley, Sweet, and Reel voting “nay” and Lick and Canane voting “yea”.   The garage is not deemed to be detached.   There was some discussion about what is a “Dwelling” and whether the structure proposed to connect the proposed garage to the current house/dwelling would be “dwelling” space.   Headley stated that his sense is that the dwelling is the space in which one resides.  Teri Gauntt addressed the Board.  She explained that the space will have four sides and a floor.   She asked whether it was important to know the intention of the space and then she explained that the intention is to expand the living area by adding a master bedroom and a bathroom. The LUC asked if the Chair wished her to address the question of correspondence at this point.  The LUC explained that she did receive a correspondence regarding this case from abutters Erin Foley and Ray Jameson who are present this evening.      The Chair indicated that he will complete this discussion and then move on to take input from the abutters. The Chair asked members to take out worksheets so that they could discuss the criteria for a variance as shown in the Ordinance and on the worksheet. The Chair explained to all present the importance of using the statutory test for a variance in making a decision. The Chair read the variance criteria questions that comprise the test for whether a variance can be granted, as follows:

 

“1. The Variance will not be contrary to the public interest;

2. The spirit of the ordinance is observed;
3. Substantial justice is done;
4. The values of surrounding properties are not diminished; and,
5. Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship, if:
   1. owing to special conditions of the property that distinguish it from other properties in the area, the property

cannot be reasonably used in strict conformance with the ordinance, and

1. . a Variance is therefore necessary to enable a reasonable use of ”

The Chair called for input from the Applicant and then from the other parties in attendance.   Erin Foley spoke, explaining that she is an abutter and that she and Ray Jameson share their driveway with the Gauntts. She further explained that they wrote a letter to the Board as a result of the meeting that occurred in January.  Foley stated that the Gauntts had recently built a new driveway entrance and that new driveway configuration has resulted in heavy run-off that is washing out Foley and Jameson’s lower driveway. The concerns are that the proposed building project will directly affect the condition of the wetlands on Foley and Jameson’s property.  Foley additionally stated that their experience is that work by the Gauntts that has already been done was done poorly and with no consideration for their property.

Foley pointed out that the plan that the Gauntts have provided does not clearly show a new driveway to get to the proposed garage and she does not see how they can put a driveway in without impacting their driveway.  Headley asked Foley to point out the driveway she is discussing on the plan which Foley then did.  Foley also pointed out the location of wetlands. Headley also asked about any driveway permits. The LUC stated that she had checked on that point.  She explained that, because the property is off Route 114, a driveway permit would be issued by the State of New Hampshire.  She did find that the state did issue a new driveway permit in October 2015.  Alan Gauntt stated that he does not plan to put in a new driveway.   Rather, he has decided to simply extend his current driveway, which is the same one that has existed for ten years.  Sweet clarified that the state does not give permits for the entire driveway; rather, their permit is for the location of the curb cut. The Chair asked Gaunt to point out, on the plan exactly where the proposed driveway extension would be located and Gauntt did that.  The Chair pulled out a sketch that had been provided with the application and pointed out that shows a different driveway configuration.  Gauntt said that is just a rough sketch and does not accurately show his current proposal.  Gauntt added that he originally considered using a “skidder trail” that is on his property and that would have left the driveway much closer to the Foley and Jameson’s property.     He told Board members that he has abandoned that idea. Gauntt admitted that water does wash from his property onto the shared portion of the Foley and Jameson property. Gauntt told Board members that he just hadn’t had on opportunity to fix the problem and added that it is to his benefit as well to make sure the lower portion of the driveway does not wash out.

The Chair asked Alan Gauntt what his intention is as far as the location and the material to be used for the driveway extension.  Gauntt replied that he would be adding “blue hard-pack” behind the proposed garage to allow entry into the garage.  Gauntt added that he expects to raise the entire area before adding the hard-pack.   The Chair asked if there was any plan to pave the area, explaining that he is asking because part of the analysis involves taking into consideration the amount of impervious surface that would be added as a result of proposed changes. Sweet questioned Gauntt about whether he was driving over the pipe to the septic system. Gauntt stated that he originally had to place additional materials in the area to protect the pipes and allow him to drive that section.

The Chair asked Alan Gauntt whether there was any other place on the property or any other configuration of the structure that would allow the Applicant could build a similar structure and not need a variance. Gauntt replied that there is no other location that would work and pointed out the various problems on the plan of the property. The issues were primarily that he does not want to remove a deck in the front; to the side and rear there are boulders that he doesn’t believe he can remove; and there are steep drop-offs in other areas. The Chair asked about the drop off and Gauntt explained that the house is on a ridge.   The Chair asked if that was why run-off is an issue and Gauntt replied that it is.

The Board took up the question of the distance from the current house to the wetlands and the proposed addition from the wetlands.   It was noted that the current house is in the wetlands buffer as it is.  Alan Gauntt explained that they applied for a building permit in 2005. The house just fell outside the wetlands set-back in that year but was not built until 2006 when the distance was increased.

The Chair moved to close the Public Hearing and asked for a second.  Foley spoke, explaining that the Gauntt property is up on a knoll and that produces run-off.  Sweet asked Foley which direction the water runs.  Foley stated

that the water runs onto their property, leaching into the wetlands. Gauntt disagreed. Sweet pointed out that the letter from Audra Klumb, who is a wetlands scientist, states that the water entered the property from the South-east and left at the North-east.

The Chair moved to close the Public Hearing and asked for a second; Headley seconded the motion and it was voted unanimously to close the Public Hearing.

The Chair opened the discussion, asking members for their thoughts.   Reel asked for confirmation that they are agreed that the proposed garage is an attached garage.   The Chair confirmed that and added that the setback is 75 feet from wetlands and the proposed garage would be 28.4 feet from the wetlands.   Canane spoke stating the testimony is in direct conflict on whether there will be an impact to an abutters’ property.  Canane clarified that he would like some way to feel satisfied as to whether there is an impact or not and how significant. The Chair asked Sweet, who is a P.E. [Professional Engineer], for his thoughts.  Sweet stated that he understands that run-off is an issue.   He stated that he is very concerned that the wetlands ordinance asks for a 75-foot wetlands buffer and the appeal requests the buffer be more than cut in half, down to 28.4-feet.  Sweet added that it could make sense to ask for a much smaller structure; but, at the previous meeting the Applicant stated that would not work for him. Sweet pointed out that there are ways to engineer a project such that problems with water off a roof are reduced and other steps are taken to resolve how the water is directed. There was a brief discussion about types of efforts that reduce run-off.  Headley spoke about his concerns regarding the size of the proposed three-car garage and how he feels that the Applicant should have considered the compromise offered to go to a smaller structure.  Headley pointed out that this structure is uncommonly large and the property does not seem to support it. The Chair offered his sense of the issue.  He stated that he, as other members have expressed, feels a key point that the size of the variance requested represents a large percentage reduction in the setback.  The Chair pointed out that he does agree that the Applicant has shown that the property is unique and that the location of the structure is appropriate and meets the requirement that there not be another location on the property that would accomplish the same purpose.  The Chair stated that he is concerned with the size of the structure, it being 36 feet by 28 feet which leaves him a question of whether the test for variance could be better met by a smaller structure, for example a two-car garage as that would reduce the size of the variance request.  The Chair then took up the issue of impervious surface, asking Sweet whether hard-pack is treated as impervious surface or non-impervious surface.  Sweet stated that hard- pack is treated as impervious surface.   The Chair stated that they are not talking about just the square footage of the garage, they are talking about that plus an additional 40 square feet of hard-pack.  Sweet stated that they could actually be talking about more impervious surface from hard-pack than from the proposed structure.  The Chair and Sweet discussed whether Conditions could be added to an approval that would resolve the concerns regarding the proposal and water issues.  Sweet stated that he did not see that would be the best approach as he would want to see a detailed proposal of how the Applicant would handle the mitigation of run-off first.

Board members discussed the statutory test for a variance and how that applied to this situation.  There was general agreement that the site is difficult and that the ordinance is to protect the wetlands and that the variance requested  calls for a very significant reduction of the setback.   Canane expressed that he does not consider it the Board’s place to even take up the question of whether the proposed structure should be a one-, two-, or three-car garage. The Chair stated that, for him, it is a consideration that the proposed garage is uncommonly large for this area and is proposed for a lot that has some limitations.  The Chair stated that the considerable size of the impervious surface by the addition of an extended driveway with a hard-pack surface and the total lack of a run-off mitigation plan are also major considerations for him. Finally, he mentioned that he does understand the abutters’ concerns; but. he does not believe that there is a negative impact to their property values.

The Chair called for the completion of worksheets.   The case number was give as 2016-02.

Board members shared their assessments on the statutory test for a variance and whether this appeal meets the test. The Chair offered the motion that the Board deny the variance because it does not meet the statutory requirement as discussed; Headley seconded the motion and it was voted unanimously to deny the appeal.

The Chair stated that there is a 30-day period to appeal the decision. Alan Gauntt has if the Board could tell him what would allow him to get a variance.    Headley explained that the Board has denied what the applicant is asking for and could only respond to something with different specifics.   The Chair explained that the Board can only act on the application before then.   The Chair added that the Board is very much like a judge whom can look at those things before him and not those that are not before him.

Administrative:

Minutes from the last meeting: The Chair asked for a motion to the minutes of the meeting of June 15, 2016.   The Chair moved that the minutes be accepted as drafted by the LUC; Sweet seconded and it was voted unanimously to approve.

Correspondence: None

The deadline for new applications expired on Monday with no applications received; therefore, there are no cases before the Board at this time and there is no meeting planned for August.

There being no further business, the meeting be adjourned at 9:15 PM.

Respectfully submitted,

Laurie Hayward

Land Use Coordinator