Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING
NOVEMBER 25, 2013
MINUTES
Present: Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Diane Hardy (Town Planner), Bob Daigle, Bill Barr, Elaine Winn, Richard Shelton
Called to order: 7:00 p.m.
Adjourned: 8:18 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 11/04/13
Action
Motion: Richard Shelton made a motion to accept the minutes of the last meeting
Second: Wayne Rosa
Vote: Chris Hawkins abstained due to absence
All others in favor
Agenda Item #3 – Regular Business
William D. Pothier – Continuation of a public hearing for a Variance reference Section 1.05(B)(1)(c), of the Newmarket Zoning Ordinance. The applicant requests a Variance for a horizontal expansion to allow the existing foundation, flooring, and roof to remain in place. This renovation will involve relocating sections of the existing exterior walls to create alcoves (insets) on either side of the building to give the appearance of the separation of the buildings similar to what existed prior to the reconstruction of the boathouse and barn, while protecting the structural integrity of the sluiceway and providing adequate site safety. The lot is located at 8 Bay Road, Tax Map U2, Lot 356, R2 Zone.
Chairman Hawkins stated he was absent for the last meeting for this application. He has reviewed all of the materials in the file, for both the current application and the initial application back in April. He also reviewed the meeting minutes of November 4, 2013 in some detail and attended the site walk. On that basis, it is his intention to sit for this application. Richard Shelton would be an Alternate. He will give Attorney Hogan the opportunity to object to this when the time comes. He has gotten himself up to speed and feels comfortable going forward sitting on the Board for this application.
He stated, at the last meeting, the public hearing was closed. In looking over the meeting minutes and application materials, he will reopen the public hearing on a limited basis. The Board has heard plenty of evidence based on the Fisher vs. Dover decision and the circumstances where Mr. Pothier failed to comply with the initial plans submitted to the Town. It was not his intention to hear more evidence on those points. He did intend to ask questions and allow for additional public comment on a limited basis on the question of the use and proposed use of the property. That bears on the issue of undue hardship under the Variance criteria.
Richard Shelton stated he may like to speak when the public hearing is open. He asked if they would prefer he speak at the podium or at his seat with the Board. Chairman Hawkins stated he could speak at his seat with the Board, as long as his comments were on the record.
Chairman Hawkins asked Attorney Scott Hogan, the applicant’s attorney, to step up to the microphone. He stated he was hoping to get some clarification from him. They have had evidence, certainly in the prior application, about the historic use of the property as a boathouse and garage. He stated he was unclear what the proposed use is for this property going forward. Attorney Hogan stated that was one of the issues he was looking at, when he first became involved. When Mr. Pothier submitted his initial application to the Board, which was before he hired his attorney to have involvement with the application, the application was to continue the existing historic uses of the property. In the application he submitted to the Board, he indicated a historic residential use and boathouse use of the property. He based that on the fact and he submitted testimony and photographic evidence that there were some bunks, some kitchen facilities and a very primitive toilet facility, which discharged directly into the sluiceway. When he submitted the original application, he said he wanted to continue all of those historic uses of the property. As an accessory use, it was a boathouse. There was evidence of residential use of the property, so his initial application indicated those uses.
He stated, in the interim, he had discussions with Diane Hardy before they went forward, as to whether there was an abandonment of those uses and what uses he could claim as preexisting, nonconforming uses to which he would have vested rights. In the application, he put forward evidence to the Board that went with each of those historic uses. He did not know if there has been any real specific testimony or evidence to show how often or how recently all of those uses have been made of the property. Right now, however, if there is going to be an accessory apartment or some other use, he understands, it would have to come back to this Board to establish that use, either through a subsequent Special Exception or Variance. If nothing else, the evidence is pretty clear that the building has been sitting there without much of a use for quite some time.
Chairman Hawkins asked if he could explain what “boathouse use” means. Attorney Hogan stated this structure was used as a boathouse to build boats. The structure closest to the road was more of a garage. The structure closest to the river was the structure in which those activities took place in terms of construction of boats. He thought the photographic evidence was clear that it establishes the uses he described, in terms of bunks and kitchen and bathroom facilities. In terms of whether they were accessory to the boathouse use or the garage use, he stated that is established in the record. He does concede that you have to have a continuum of use to establish any vested rights. If a year or more goes by and those uses were abandoned, the property owner would have to come back to this Board and seek relief from the ordinance. Any uses outside of boathouse/garage uses would have to be the subject of a subsequent application.
Chairman Hawkins stated Attorney Hogan has talked about the structure being bifurcated, where you have a garage portion and you have the boathouse portion. There are two floors in the boathouse section now. He asked if there were two floors in the original structure. Attorney Hogan stated the amenities he had just described were on the first floor of the boathouse. Chairman Hawkins stated that would have been the bathroom, kitchen, and bunks that were all on the lower floor. Attorney Hogan stated that was correct. He believed the upper floor was storage. The structure closer to the road was a garage type of structure. Chairman Hawkins stated that would mean cars were stored there and general storage. Attorney Hogan stated yes and the term “barn” has also been a term describing the structure closest to the river, in terms of storage of materials.
Chairman Hawkins asked when the kitchen was established in the structure. Attorney Hogan stated they did not know. Chairman Hawkins asked of what the kitchen consisted. Attorney Hogan stated his understanding was there was a small stovetop, associated counters and a sink.
Richard Shelton stated, so they get on the right page, the front building closest to Bay Road was the boathouse where Mr. Pothier has the two-car garage now. The back building nearer the river was the barn where they stored the equipment. He did not know when they built the boathouse, it was before his time, but the big building closest to the water was the barn, where they stored the lumber for building the boats. The building nearest the road where there is a two-car garage now was the boathouse. The boathouse building was situated the opposite way from how Mr. Pothier has the garage situated now.
Chairman Hawkins asked when the bunks were first established in the building. Attorney Hogan stated they did not know. Chairman Hawkins asked when the last time was that the bunks were used. Attorney Hogan stated they did not know. Chairman Hawkins asked when Mr. Pothier acquired the property. Attorney Hogan stated it was 2008. He showed a photo of the bathroom facilities. Wayne Rosa stated Mr. Pothier stated on January 28, 2013 that he owned the property for about ten years.
Chairman Hawkins asked if the property was used for overnight stays while Mr. Pothier has owned it. Attorney Hogan stated he would guess no. He stated the focus on the recent applications has been on the dimensional requirements regarding the structure, as opposed to use issues. His original application contained language stating he wanted to continue the existing historic residential and boathouse uses.
Bob Daigle stated he had an issue with the residential use always coming first. The primary function of that building was a boathouse and it now does not resemble any boathouse he has ever been in. Attorney Hogan stated none of the issues currently before the Board are seeking residential use of that structure. If he were to seek to use it as a residential structure or commercial structure or a specifically identified accessory use to the existing residential structure, it would be by subsequent application to this Board. Chairman Hawkins stated he wanted to make it clear, as part of the variance criteria unnecessary hardship prong, whether the proposed use is reasonable is part of the evaluation of whether there is an unnecessary hardship that would go toward the granting of the variance. The inquiry is relevant for that purpose. He understands there is no application before them tonight on a change of use or future use, but it is important to make the determination in terms of whether there is an unnecessary hardship and to have in mind what the proposed uses of the property are and have been. From what he has heard, there were bunks on the property and there were overnight stays and that is what Attorney Hogan is describing as residential use. Attorney Hogan stated yes. Chairman Hawkins stated there is no specific evidence of how frequently it was used for overnights and for what periods of time. Attorney Hogan stated no.
Elaine Winn asked Mr. Pothier how he was going to use the structure. She stated they keep hearing that he is not going to use it for residential purposes. Attorney Hogan stated he will decide that based on the outcome of the present application. He is either going to need to modify the two structures substantially or modify them according to the application before the Board this evening. Until he figures out what direction that will go, he has not made any decision. He knew Mr. Pothier has said to him at various times during this process he has thought of selling the property. He would need to make very specific representations to a buyer in terms of what uses they can or cannot make of it. Right now, he cannot make any of those decisions until he gets through this process.
Chairman Hawkins stated, based on what he has heard, the applicant may make some use consistent with what he believes the historic use to have been. Elaine Winn stated he may be building boats.
Wayne Rosa stated, if he went back to the boat building business, it is not grandfathered anymore, so he would need a variance. Diane Hardy stated, if it was for commercial use, he would have to come back for a variance. Chairman Hawkins stated he did not know if the boats that were made there previously was a commercial business. Attorney Hogan stated he did not know if it made much of a difference, because it is Mr. Pothier’s burden to show there has not been a year’s abandonment of whatever the use was. Whatever use he might seek to establish, he would have the burden to show whether it has been a continuous use. If it has not been a continuous use, it would be subject to Zoning Board approval. Chairman Hawkins asked if he had any intention of making any commercial use of the property whatsoever. Attorney Hogan stated he did not believe he had any intention of that. Mr. Pothier is trying to navigate this process before making any of those decisions.
. Bill Barr stated the last time they denied the Special Exception for horizontal expansion it was because it was possible for the applicant to comply with the ordinance. Now they’re saying that they can’t comply with the ordinance and want a variance, but the Board is having a hard time connecting the dots between what is being proposed and the test for unnecessary hardship. Defining unnecessary hardship really requires the use to be specified; that there is something the property owner should be able to do with his property that is fair and just; and that the ordinance is causing an unnecessary hardship by not allowing that use. The use needs to be strictly defined to get through those criteria. Attorney Hogan stated under the unnecessary hardship requirement there must be special conditions of the property that distinguish it from others in the area. He stated the question is what the use is right now. It is whatever uses are permitted for an accessory structure to an existing residential structure. Anything beyond that, establishing it specifically as a separate residence or apartment or commercial or home occupation or any other use would require further action of the Board and would be beyond the scope of the Board granting this variance.
At this point, 7:23 p.m., Bob Daigle, who was on call from the Fire Department, got an emergency call and had to leave. Chairman Hawkins appointed Richard Shelton to take his place. Attorney Hogan stated he would not object to the change in personnel.
Richard Shelton stated in RSA 674:33 “If a landowner in NH wants to build or add onto a structure or change the use of his or her property, the landowner must ensure that his or her plans conform to the local zoning ordinances.” As for this horizontal expansion, the applicant is requesting to allow the existing foundation, flooring and roof to remain in place with minor renovations involving relocating sections of the exterior side walls that were not part of the permit issued and which has now created a violation of the ordinance. He asked if they are now to consider whether this is a reasonable use, not knowing what the proposed use is. He did not see how they could approve the variance. Chairman Hawkins stated they will take some more evidence, then they will deliberate. Attorney Hogan stated the use of the structure as a garage, as a barn, as a storage structure, is not contrary to what is allowed for accessory structures under the zoning ordinance. Chairman Hawkins stated he thought he understood Attorney Hogan’s position, which is if you have an accessory structure, you’re entitled to use it for whatever accessory purposes are allowed under the ordinance. The extent to which it is demonstrated there is some other historic use of this structure is outside the scope of this application. Attorney Hogan stated that was correct.
Richard Shelton stated the old building had a hole cut out in the floor. At the end of the day or when they were done working, they swept all the shavings, dirt, and dust in the holes and it floated into the bay. There was a hole in both buildings.
Chairman Hawkins opened the public hearing.
Chairman Hawkins stated he would give the public an opportunity to comment on the historic, current, and proposed issues that have been raised.
Alice Gianni, 6 Bay Road, stated her unit overlooks the house that is being constructed. She stated the Board must consider that this is going to be a residence. They could not put blinders on and pretend that was not before them and just look at the dimensions. She was glad there seems to be agreement with that now. The applicant must establish the proposed use is a reasonable one. It goes with unnecessary hardship. It is something they must do by law. She stated it is a part of the consideration of the variance.
Alice Gianni stated she looked through the file. The proposed residential use for the property has been before this Board from the beginning. It has been expressly stated by the owner and Attorney Hogan. It was in the application. At the first hearing, on January 28, 2013, the owner advised the Board the intended use was a residence. On March 4, 2013, Attorney Hogan advised the Board, “It was obvious that part of the intent in doing the improvements to these buildings was that it would be a residential use.” She went back and looked at the tapes of the meetings. On November 4, 2013, Attorney Hogan again advised the Board that neither the owner nor he were being evasive about the proposed use for the property. Attorney Hogan had stated in Mr. Pothier’s original application to this Board he wanted to continue the historic residential use of the property. Attorney Hogan had told the Board, “There was no question from the very beginning of this process that Mr. Pothier was clear to the Board, in writing and in testimony, that there were historical residential uses of this property.” On the same night when Diane Hardy had commented it looks like a house, Attorney Hogan said there may very well even be a commercial variance sought, since there may have been some commercial work at the premises. Hearing this, she reviewed the original application submitted by the owner. That application confirms he purchased the property with the intent to make an additional residence on the property and perhaps to even use the property for a commercial use. The owner wrote in his original application about a purported mail order business that was ostensibly run from the property. He then states, “I immediately thought to myself that the boathouse and barn could be a nice habitable space.” He also wrote in the same application, “I plan to make 8 Bay Road my retirement home.” This admission by the owner to the Board in his January 2013 application for a variance is consistent with the statements he has made to a number of neighbors saying that he plans to live in the structure that is being built. If this variance is granted, not only do the neighbors have to be concerned about the subject property being used as a residence, they must be concerned about the owner trying to use the property for commercial use. She is especially concerned, because this is consistent with an advertisement that appeared a few months ago by the real estate firm retained by the owner, Keller Williams. She gave the Board a copy of the advertisement. They advertised his property as “a working/living area zoned for business”. That was news to her. It is not zoned for business there. That fact did not stop the owner from having his agent advertise that it was. As an abutter, her fear is that the Board will look at this issue very narrowly and think that the clear, expressly stated use as a residence is not before you and grant this variance. When the owner comes before the Board again, because this is what they have heard every time they are here that they will make that residential application later, just give them this variance first. It is looking more and more like a house. They will ask for this variance then make the applications for residential and commercial. If it gets denied for the thousands of reasons it should be denied, he will say that you knew he was spending thousands of dollars building this house, you knew from January 2013 when he put in his first application. The owner’s tactics are nothing more than strategic maneuvering. He is playing the Board and he is playing the abutters. He cannot satisfy the statutory requirements for a variance, because at the very least, he cannot establish unnecessary hardship. The proposed use of the property, which he and his attorney have very clearly advised this Board, will be residential, and perhaps commercial, which is not a reasonable one. The owner cannot establish any of the criteria to build a second home on the property and most certainly cannot show undue hardship. The owner is enjoying the use of his property. He cannot say he is not. He has a house on it already and he chooses to rent it. It is rented to young people and that is causing numerous complaints from the neighbors to the Newmarket Police Department for noise emanating from the property. In fact, they spoke to the Police Department and they have had fourteen noise disturbance complaints at 8 Bay Road from 2008 to the present. Mr. Pothier has owned the property since 2004. It is undeniable that the owner can enjoy the use of his property. He can even choose to retire there in the existing house that was originally on the property. This application does not meet the requirements of the New Hampshire statute for a variance and it should not be granted. The Board must, by law, consider the proposed use of the property and the proposed use of the property is not reasonable.
Chairman Hawkins asked Ms. Gianni to hand the paper given to the Board to Attorney Hogan, so he could look at it before it gets accepted into the record. That is the listing from Keller Williams. He stated the listing was for 8 Bay Road, for the existing blue house, dated July 23, 2013. It describes the boathouse under construction. Attorney Hogan did look it over. Attorney Hogan stated the only uses before the Board right now are permitted accessory uses and no others. The listing was passed around to the Board members and then placed into the record.
Michael Smith, 6 Bay Road, stated he was happy to hear the Board recognizes the use is something that is before the Board. At the last meeting, he was told it was not an issue for the Board. He was told at that time the use was an enforcement issue. He was glad to hear the Board recognizes it now.
He wanted to address the attempt to grandfather this as a residential use on this property. In the original application, the owner stated he had talked to the former owner of the property, whose name is Atherton, and she told him, in the old days, her husband and his siblings used to sleep in the structure from time to time. It sounded to him like they were kids, if he was sleeping with his siblings in the boathouse. Ms. Atherton had gone on to say that from time to time in the summertime kids occasionally slept out there. That, to him, does not turn this into a residence. Someone sleeping someplace on occasion does not make it a residence. No evidence has ever been admitted that there was a residential use of the property. Someone slept there, maybe they did. His own kids slept in a treehouse he built, that did not turn it into a residence. This is an attempt to grandfather the property for residential purposes. He did not think the Board can ignore all of the evidence that was presented on the issues of residential use. The applicant is too cute by path by saying it is a boathouse and barn and, if he wants to change the use, he’ll come back. He said the residential use is important to him. He is going to then come back and claim either a grandfathered use or he’ll say he invested all of this money into it and that the Board knew about the potential for these residential uses at the time they granted the variance. He stated the Board made a mistake in granting the initial variance for the height of the building. This should have been an issue at that time. The use is required for any variance. He asked the Board not to compound that problem by granting a variance now. There is no reason he could not have built this building on the initial footprint. The Board will compound the problem by granting a variance at this time. He requested they consider very, very seriously these issues before they grant a variance.
Rick Martineau, 6 Bay Road, stated he had provided a satellite image of the property at the site walk of the original boathouse before it was removed. He showed the Board, again, a Google Earth satellite imagery of the subject property before the structure was demolished. He stated that, at the last meeting, it may have been perceived that he did not believe in people having property rights. One of the comments at the end of the last meeting that Attorney Hogan made was if a variance was not granted it would give the message that people should not build in Newmarket. He wanted to clarify that had the rules been followed and the plan that was presented to the Town at the beginning that appeared as a boathouse and gave the presentation of a barn that gave all the look and structure of what was originally there, none of this would be an issue. What it would have told people is if people follow the rules that are set by our Town (and Zoning Board) then we would not have these problems. He stated, at the site walk and to this day, there are no real drawings that have to do with the variance of the expansion. Even in the site walk it was guesstimated what size the indents would be. There are no plans and nothing is mentioned about going back to the original size. Nothing was clearly drawn in the sand saying exactly where they would put this. There was space in that intermediate area. One area was a utility space that would provide no function other than being a closet of some sort. On the other side, a doorway had already been established at the proposed inset that had not been approved. He did not understand how that variance could come about with what the indents will be regarding this variance if a plan still has not been provided. He stated if the approval was originally to have this as two connected buildings, then he did not understand why the variance is needed at all.
Anita Gordon, 6 Bay Road, stated Mr. Pothier gave the Town a plan for a building he had no intention of constructing. Instead he built a house. Long before it was completed, he told her, in the hallway of 6 Bay Road, that he will live in the new building. The bedroom would be upstairs. Now, as this house is being built, he requests more variances from the Zoning Board, with more to come. The Board has already accommodated Mr. Pothier by allowing him to have the building twice the height, two floors and a huge roof, which was not on the original property, and a bigger footprint and a bigger garage. This is a very different plan than he had submitted. The older house is and has been rental property since Mr. Pothier purchased it. Since that house has been his rental property, the police have been called many times at early hours of the morning, because of the loud noise and bonfires on the back lawn awakening people at Bryant Rock. The Police Department has fourteen records of calls. She mentions this history, because the new house could also be rented. It would add to the noise problem that is already there. She asked the Board to check with the police and make a provision that the new structure not be used as a living or rental property.
Bernard Gordon, 6 Bay Road, stated he has lived within 5 miles of 8 Bay Road for most of his adult life. That has helped him to know the people, the history and the culture of the town. He stated the Zoning Board has heard a number of arguments about the issue of Mr. Pothier’s request. The Board has heard Attorney Hogan argue that the new building is prettier than the previous structure. That may be so. The Board has also heard from Attorney Hogan that the new construction has been mighty expensive. He stated, again, maybe so. To both of those arguments, he has to wonder what the relevance is of being pretty or how much it costs. Attorney Hogan repeatedly, ad nauseam, cites the name of the Building Official in support of his client’s request for a variance. Of course, the Building Official did no such thing. He commented only on a construction issue. He has to ask what the relevance is of mentioning the Building Official. The answer is clear. Attorney Hogan, who is very clever, wants to have it thought that the Town’s Building Official has lent his name and authority to Mr. Pothier’s request for a variance. That, of course, is not true. Attorney Hogan, by repeatedly citing the Building Official’s name again and again, hopes you will be persuaded this is true. What makes this matter difficult is that Attorney Hogan has very cleverly asserted that, because so much money has been invested, it is difficult to reject the request for a variance. That brings him to his main point. This request for a variance amounts to a dare. Attorney Hogan is daring the Zoning Board to deny the request. He knows that by saying repeatedly that so much money has been spent, the Zoning Board would not dare to refuse the request. That is the issue. He asked if the Zoning Board would dare to deny the request. The Zoning Board has repeatedly warned Mr. Pothier that he proceeds at his own risk. The Board has been dared to uphold the law. He stated the Board must accept the dare and uphold the law.
Attorney Hogan stated the only thing he would repeat is none of the uses, except for permitted accessory uses for an accessory structure, are before the Board tonight. If the Board wanted to make that a condition of approval or in any other way incorporate that into whatever decision it makes, that is fine. They have heard about these other uses, although he understands where they are coming from, they are not before the Board. They would be subject to another vigorous process. He stated Mr. Martineau stated no plans were given for the indent. He will address that together with Mr. Gordon’s comments about the Building Official. When the Board denied the original horizontal expansion request, the Building Official gave them a letter stating they had to comply with that decision. They engaged a contractor to look at the property to determine what the options would be. They got a licensed professional engineer to go and look. Both of those individuals gave written opinion letters that he submitted to this Board with the variance application. Subsequent to that, he was contacted by the Building Official. In his letter to the Board with the variance application itself, he quoted what the Building Official contacted him to say. He saw a possible favorable solution and he suggested that he and the engineer meet at the site. He suggested the “bump-in” option that might provide the visual separation. Subsequent to that Mr. Pothier engaged an architect. The architect drew up a plan and it was an attached exhibit to the variance application. It shows the bump-in that came out of the conversations. He did not think any of that is unclear in the application. It is part of the record.
Richard Shelton stated he did not see how they could approve this variance tonight. The buildings have never been inhabited other than when his kids were the Atherton’s kids’ ages and they played down there. They may have had a sleepover. The holes in the floor, which you could see from underneath that building, were where they swept down all the dirt and shavings from both buildings. They had a little cover over it. They just swept things down the hole and into the river it went. They did that for years. Even one of the people that researched that before they did the construction for hazardous waste said it was never habitable. It is in the record. It has never been used as living quarters. It was used as a camp out (area). It never had anybody living in there. The buildings were never connected. The only thing that went from the boathouse building to the second building was a big plank up over the buildings and hooked to that plank was the electrical wire for the power for the barn.
Chairman Hawkins asked him if the sluiceway was open in the past. Richard Shelton stated it was not, it was planked over. There was never an issue with it in all the years he has known of it. The last few years, he had not been down there. His friend had kept his boat there, but he left the area. So, he did not spend that much time there after that. Prior to that, he was there every weekend. He kept a boat there and went fishing all summer. The area between the buildings was always planked and none of the kids ever fell in.
Richard Shelton stated Rachel Atherton, at one time, after Richard Atherton passed on, had nothing to do for a while and she took a course on e-baying. People would bring products to her and she would put them on e-bay. She kept the products in the boathouse out front. She would take them to the Post Office and ship them when they sold. She ran the business out of a computer in her house. She stored the products out there. If you call e-baying a mail order business then that is what she did. Chairman Hawkins stated she was a clearinghouse. Richard Shelton stated you would bring something to her, she would charge a percentage plus the pictures. Diane Hardy stated that is permitted under Section 7 in the Zoning Ordinance titled “Home Occupations and Home-Based Business.”
Chairman Hawkins closed the public hearing.
Chairman Hawkins stated they just got about an hour’s worth of information and a significant amount of information from the meeting minutes and application materials. He suggested they not entertain a motion tonight. He wanted everyone to have a good chance to think about the evidence they heard and what a motion would consist of.
Wayne Rosa stated he did not think this should be denied. The applicant said it could be a residence in the future. He did not understand why they are talking about that. He has applied for a variance. What he does in the future applying for variances is the Board’s business in the future. He applied for a horizontal expansion for a boathouse and barn. He stated it doesn’t look like a barn and boathouse to him either. He understands for reasonable use they look at the future use. He has a long road to go if he thinks he is going to turn that into a residence. His proposal is to go back to an alteration of the proposed plan. Go back to the 4’ x 5’ passage between the buildings. Grant the variance to have a floor to make it safe and a roof to make it closed to the elements. What he saw on the site walk was a place that could be used for a room. It is approximately 5’ x 15’. This is the breezeway area. Have him comply with the building permit, except have a roof and floor.
Richard Shelton stated they were shown two plans. One with a little, small center between the boathouse and the barn and one, later on, that was modified to what is there now. His problem is that the applicant was issued a State Wetland Permit to put the foundations in the same location as the previous buildings. They are not in that location now. He asked if the applicant had an updated State Wetland approval or was the State going to say to take it out. Chairman Hawkins stated this was not relevant to the Zoning Board’s determination. The State will do what it is going to do. The Board has no control over it. If the Board gives him everything he wants and the State says he has to take the buildings down, he has to deal with that with the State. The Board’s determination is separate.
Richard Shelton stated he is not in favor of what the applicant’s attorney wants.
Elaine Winn stated he cannot have two homes on that property. She asked if he might take down the other house. Chairman Hawkins stated there are things the applicant can do under the ordinance to bring this into compliance. Tearing down the existing house might be one of those things. He can also try to get the zoning changed. Any number of things is possible. Chairman Hawkins stated the issue or proposed use goes to the unnecessary hardship prong. It is not a question they are answering in the abstract. It is relevant to the determination they are being asked to make. The applicant was not clear on what he was asking for. He wants to be allowed to take advantage of the uses of accessory buildings as they currently exist in the ordinance. The Board needs to look at what those uses are. Elaine Winn stated, at her zoning training in Concord, they were specifically told no matter how much money someone spends it has nothing to do with unnecessary hardship. Chairman Hawkins agreed and stated there was an application similar to this concerning the trailer behind Jade Garden. It was a far less elaborate structure than this one. The applicant had moved the foundation from its original footprint and the Board denied the request, because it was outside the footprint of the original structure.
Bill Barr stated the unnecessary hardship in this case is, when they approved the vertical expansion, it provided an avenue to construct a building that would provide him with an accessory building use, as long as it was on the same footprint. Currently the unnecessary hardship is just that the building is required to be redesigned, so they do not have to be separated. It seems like a technical problem and not a rights or use problem. Chairman Hawkins stated they denied the Special Exception, because there were reasonable uses that could be made, i.e. putting the building back in the footprint of the original structure.
Wayne Rosa stated if the Board denies this and the applicant accepts this decision, then in order for the structure to be in compliance, the applicant would be required to go back to the first plan submitted with his building permit. Chairman Hawkins stated that was correct. Richard Shelton stated it was not the Board’s problem that he is in violation of what he asked for. Wayne Rosa stated he could keep the roof and make it so it does not collect moisture and has a floor (over the sluiceway) to make it safe or revert back to the original plan. Richard Shelton questioned whether the Board could add conditions to what he is asking for. Or, does the Board have to accept what he wants or deny it. Chairman Hawkins stated the Board can grant or deny the variance or grant it with conditions.
Chairman Hawkins asked everyone to take away everything they heard, look at the meeting minutes, the application, the ordinance, the criteria for granting a variance, and the burden the applicant has to meet and at the next meeting they could be prepared to make whatever motion they feel is appropriate. Richard Shelton stated the Board can talk about motions and what they feel is appropriate at the next meeting. The Chairman can then appoint two people to work on the wording of motions and have another meeting to discuss and vote. Chairman Hawkins stated he agreed.
Bob Daigle returned to the meeting at 8:17 p.m.
Chairman Hawkins stated he would entertain a motion to continue the hearing on Mr. Pothier’s application to December 9, 2013 at 7:00 p.m. here at Town Hall.
Action
Motion: Bill Barr “so moved”
Second: Richard Shelton
Vote: All in favor
Agenda Item #4 – New/Old Business
None.
Agenda Item #5 - Adjourn
Action
Motion: Bill Barr made a motion to adjourn at 8:18 p.m.
Second: Elaine Winn
Vote: All in favor