Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT
DECEMBER 5, 2016
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Diane Hardy (Zoning Administrator), Bob Daigle, James Drago, Steve Minutelli (Alternate), Richard Shelton (Alternate)
Absent: Jonathan Kiper, Bill Barr (Alternate) – excused
Called to order: 7.05 p.m.
Adjourned: 7:55 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes 09/12/16
Action
Motion: Bob Daigle made a motion to approve the minutes of 09/12/16
Second: Richard Shelton
Vote: Wayne Rosa abstained due to recusing himself at that meeting
All others in favor
Agenda Item #3 – Regular Business
Sharon Tucker/Town of Newmarket – Public hearing for an application for a Variance, from Section 3.01(B) of the Newmarket Zoning Ordinance, to permit a subdivision containing a lot without the required frontage on a Class V road, without a plan to improve the Class VI road to current Town standards and no plan to post a financial security for such improvements. The lot would be deemed unbuildable until such time as the owner complies with Section 3.01(B)(3). The property is located at 27 Neal Mill Road, Tax Map R4, Lot 50, R1 Zone.
Bob Daigle recused himself due to a conflict of interest, as his firm is working with the Town on the well development engineering.
Richard Shelton and Steven Minutelli were appointed to fill Bob Daigle’s place and Jonathan Kiper’s place.
Attorney John Ratigan, from Donahue, Tucker & Ciandella, presented the application on behalf of the Town. He stated Sharon Tucker owns the largest of the parcels (Tax Map R4, Lot 50) and proposed Lot 50-2 and her (step) daughter owns a smaller 1 acre lot shown on the plan as Tax Map R4 - Lot 52. Sharon Tucker has been in negotiations with the Town for this property to be the future site of a Town drinking water supply well. He had handed out some material to the Board tonight. The proposed Lot 50 property is on Neal Mill Road and has the required frontage on that road. Sharon Tucker’s current home is on that lot. The property loops back toward the river. It is all wet where the border dark curvilinear dashed line is shown on the plan (which is the Piscassic River). The dotted area that crosses the river is where they propose to create a Town-owned lot for the well site and its 400 foot well protection radius. That lot will not have frontage. When a municipality is using property for governmental purposes, it is not obliged to follow the requirements of Zoning Ordinance. There is no need to have frontage on that lot. There will be an easement for access across Ms. Sharon Tucker’s lot (Tax Map R4, Lot 50) from the Neal Mill Road for the Town to get back there. There will be a drinking water well within the circle on the plan, which is the well protection radius. A lot will be created with no frontage.
There is a lot line the surveyors have not been able identify in the field or with the deed work between the tip of the dagger shaped parcel, which is owned by Karen Tucker, who is the daughter of Donald Tucker and the other parcel to be owned by Sharon Tucker (Proposed lot R4-5-2. They do not know where that lot line is. But, they do know where the boundary will be right now for the new lot for the Town. So, it does not have bearing on the case before the Board this evening. They propose the Town place a condition on the creation of the new lot, where it would remain unbuildable until such time as they comply with the ordinance either by creating frontage on a Class V road or posting security to upgrade the existing Class VI road to a Class V road.
They need a variance, because they are creating a lot that will not have frontage on an approved Class VI Town Road. If the variance is granted, their next step is to go through Planning Board for subdivision approval to create the three lots. The Town will own the middle lot, the lot on one end will be owned by Sharon Tucker and the lot on the other end will be owned by Karen Tucker.
There will general questions from the Board to help orient them to the location of the area in question.
Richard Shelton asked why this was coming to the Zoning Board before going to the Planning Board, when it is going to be a subdivision. Attorney Ratigan stated they were not creating a subdivision until they get to the Planning Board. Right now, it (Lot R4- Lot 50) is one lot. They are not seeking to create the lots from the ZBA tonight, but a variance from frontage requirements. Currently, the lot is part of a lot that is conforming and has frontage on a Town approved (Class V or better lot) road. By putting a lot line in the middle, they are cutting off the frontage, so it is no longer a conforming lot. It is an isolated lot, with no frontage on and approved Class V or better. The Zoning Ordinance requires lots to have frontage on an approved Class V road or better road. When they create this lot, they will need a variance, because it does not meet the frontage requirements.
Chairman Hawkins opened the public hearing.
An abutter asked about access to the lot. Diane Hardy stated the gate in place where Neal Mill Road changes over to a Class VI will remain in place. Sean Greig, Water & Wastewater Superintendent, stated they will have nothing to do with that back lot, once they purchase the Town’s portion. It will be a lot with no frontage or access. They will allow Sharon Tucker to access it with an easement. Chairman Hawkins stated it will be non-buildable.
They don’t need a variance for the Town lot. The variance is necessary, because this subdivision will create another lot, which will be privately owned, that will be nonconforming lot with no frontage.
The abutter asked how the well water would get out to the public. Sean Greig stated it will be piped through an underground transmission line which will be constructed as part of the well development.
Chairman Hawkins stated, aside from the facilities for the well, there will be no planned construction on the rest of the lot.
Chairman Hawkins stated Attorney Ratigan had said the Karen Tucker lot had a southeast boundary that could not be located by the surveyor. He asked how this had no impact on this application. Attorney Ratigan stated it has no impact, because the Town lot was not contiguous to that. He spoke with both Karen and Sharon Tucker and Karen has authorized him to be here tonight, even though the property is not contiguous to the lot being created. They are going to work out where the boundary is. Chairman Hawkins stated he understands it is peculiar, but his question is more specifically whether that could have an impact on this. Attorney Ratigan stated whether this variance is granted or not, this is a separate lot. Even though they don’t know where the boundary is, it will not change. That lot has no frontage today on a Class V road and it will have no frontage tomorrow on a Class V road. This lot is what it is. It is a nonconforming lot with respect to size and frontage.
Diane Hardy stated that lot (Tax Map R4, Lot 52) has never been formally subdivided. Wayne Rosa asked why it was a lot. Chairman Hawkins stated the lots were divided up between the owners, as part of a divorce settlement. Someone just wrote a deed and transferred property. Attorney Ratigan stated they were presenting the factual information they have that it is there. The title chain on that lot is different than Sharon’s. When they originally started this, they assumed all this land was Sharon’s. They were mistaken about that. Chairman Hawkins stated what Attorney Ratigan was saying is they (the ZBA) doesn’t really have to worry about that. Attorney Ratigan stated that was correct. They are seeking a variance and they are not asking the Board to do anything with the subdivision. It is what it is. They are seeking the Board to acknowledge that Sharon’s property will be a lot without frontage and for that they need relief in the form of a variance.
Chairman Hawkins asked, in terms of the lot being non-buildable, would that be a condition. Attorney Ratigan stated that was correct and that is acceptable to Sharon Tucker. That would be non-buildable until such time as there is compliance with the ordinance. Chairman Hawkins stated there may be other problems, too, but those are not tonight’s problem for this meeting.
The abutter asked if the buildability now owned by Sharon Tucker would be affected. Chairman Hawkins stated yes, because there is no frontage on a Class V road. The road would have to be upgraded and that would be a very expensive undertaking.
Diane Hardy questioned how that one acre lot was created without any subdivision approval by the Planning Board. It does not meet the current two acre minimum lot size zoning.
The abutter asked what the motivation was to do this. Attorney Ratigan stated the town needs drinking water. There is a proven well site on this property. They need to buy enough land to have a radius around it. That is the size of the parcel the property owner has agreed to sell to the Town.
Diane Hardy asked what the motivation was for Sharon Tucker to keep that unbuildable lot and not convey that to the Town with the rest of the land. She asked why she would keep a nonconforming lot with no access. There are two nonconforming lots being created here. Attorney Ratigan stated this was not an issue before the Board. Diane Hardy stated it was an enforcement issue. They never got a variance for that small lot from the Zoning Board and never got subdivision approval from the Planning Board for it. Attorney Ratigan stated this was not what was before the Board and they have no jurisdiction over that. The only land before the Board is Sharon’s land.
Diane Hardy stated, as a policy statement, there is an enforcement issue here where that lot should not have been conveyed to Donald Tucker and this is an illegal subdivision, because that lot does not conform to the Town’s Zoning Ordinance, which requires that you have a two acres of land and that you have 200 feet of frontage on a Class V, or better road. Seven or eight years ago, when that happened, an illegal subdivision occurred. The question is what does the Town do retroactively to address that issue. Attorney Ratigan stated to call him tomorrow, because that has nothing to do with this application. Diane Hardy stated she is a Town official, the Zoning Administrator, and she sees that there is a code issue with that lot, which clouds the title even further and also raises a question on the value of the property to the owner. It is not a buildable lot. She realizes it is not before the Board, but, as an administrative matter, it needs to raised and this Board needs to understand it. Attorney Ratigan stated that one acre lot is not part of this application and not before this Board. Wayne Rosa stated this is part of this subdivision, so it is part of this. Attorney Ratigan stated they are not there to approve a subdivision. They are only talking about land owned by Sharon Tucker. Wayne Rosa stated that does not seem clean to him and could be a future problem. Attorney Ratigan stated he did not disagree that the creation of this could have violated subdivision laws and could be noncompliant with the Town’s zoning ordinance. That is not before the Board. Richard Shelton asked how they could approve this, if they do not know where the boundary is. Attorney Ratigan stated it does not matter. There are two abutting property owners. In order for the application to go before the Board, there either has to be a merger of those two lots or there needs to be a boundary line agreement, where the parties agree where the boundary line is. If something was done improperly, it will wash itself out in the future.
Diane Hardy asked, if they do not agree on where the boundary is, what happens. Attorney Ratigan stated they are not clear on one of the boundaries and which way it runs. It is clearly an acre +/-. There is not a huge swing on where this line can go.
Chairman Hawkins stated he struggled with this, as well. The more he looks at it, the more he sees it is immaterial to tonight’s application. Whatever the issue is between Karen and Sharon Tucker, it does not impact the lines they are seeking to draw on the property for purposes of the Town’s subdivision. Whatever may or may not happen, one way or another, those lots are non-developable and it has no impact on creating a lot for the well. Attorney Ratigan stated this decision does not rest on where the property line is for that lot.
Chairman Hawkins stated there is clearly a “rabbit hole” there for someone to chase down. He is not sure it was for the Zoning Board to chase down. He understands where Diane Hardy is coming from, because it is frustrating that this deed got done. He hears what she is saying.
Wayne Rosa asked if there was any liability to the Town in granting this, if there is a future problem. Attorney Ratigan stated no. He anticipates the issue of the property line and ownership will be worked out in a month or two.
Chairman Hawkins stated he felt it was clear in the record now, but to clarify this further, the Zoning Board has no position on the correct location of that boundary line between Karen and Sharon Tucker’s land. They have no jurisdiction, nothing to say about it and nothing they say here should prejudice anyone one way or the other with respect to that issue.
Diane Hardy asked, when this gets to the Planning Board, will all of these things be worked out, so it will clear what the lot sizes are that the Board is approving. They will need that information for subdivision approval. Someone is going to ask how someone got a one acre lot there without going to the Zoning Board for approval. That is a Town concern. She hopes this is resolved before it comes to the Planning Board.
Chris Hawkins asked if anyone had questions about the answers to the specific variance criteria. Richard Shelton stated it was all self-explanatory. There were no questions.
There were no more public comments and Chairman Hawkins closed the public hearing.
Chairman Hawkins stated he had originally thought a site walk might be helpful, but now he is not so sure. Richard Shelton stated he did not feel that would help.
Chairman Hawkins stated, if the Board is comfortable, he would entertain a motion to approve the application subject to a condition that there will be no construction allowed on the southern parcel, as proposed by the applicant pending compliance with Ordinance 3.01(B) or any other applicable requirement of State law. Diane Hardy stated RSA 674.41 is about building on Class VI roads.
Chairman Hawkins reiterated he was happy to entertain a motion to approve the application based on the evidence and materials submitted and the information received here this evening, subject to a condition of the southern lot, the detached lot, shall be noted as not being a buildable lot pending compliance with Section 3.01(B) of the ordinance, RSA 674:41, or any other applicable requirements of State law for the property located at Tax Map R4, Lot 50, in the R1 Zone.
Action
Motion: Wayne Rosa made a motion to approve the application based on the evidence and materials submitted and the information received here this evening, subject to a condition of the southern lot, the detached lot, shall be noted as not being a buildable lot pending compliance with Section 3.01(B) of the ordinance, RSA 674:41, or any other applicable requirements of State law for the property located at Tax Map R4, Lot 50, in the R1 Zone.
Second: James Drago
Vote: All in favor
Agenda Item #4 – Other Business
Chairman Hawkins stated the Linked Together children at the Elementary School made some wonderful ornaments and cards for the Board members as a thank you for public service. They did a great job and the Board members all really appreciate their efforts. Chairman Hawkins thanked the children for the gifts and cards. They will send a thank you note for the children.
Agenda Item #5 - Adjourn
Action
Motion: James Drago made a motion to adjourn at 7:55 p.m. Second: Richard Shelton
Vote: All in favor