Hearing Minutes October 27, 2004 
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The Town of Sutton Zoning Board of Adjustment met at the Pillsbury Memorial Hall, Main Street, Sutton Mills on Wednesday October 27, 2004 at 7:30 pm.
The assistant took roll call - members present were Bill Hallahan, Dane Headley, Doug Sweet, tom Brooks Andy Supplee...
The assistant read the information
ZBA Hearing Case # 04-10
Tax Map # 07 Lot # 876,290 Book # 1363 Page # 704
The applicant, RCS Designs requests a variance to the terms of Article IV, Section D-2 in order to erect a building within the town’s required 75’ setback from a wetland and Article IV C-4 63 feet set back from the center line of a road on land owned by Louis and Nancy Pocharski at Davis Court/North Road, a Residential Zone in Sutton.
Chairman Bill Hallahan noted that this hearing was continued and reposted due the fact that there were two issues to be considered on this application, wetlands setback and setback from center of ROW. The setback issues were clarified in an email from Town Counsel by Jae Whitelaw of Mitchell & Bates
“CENTER OF THE ROAD
The answer to the question of which “center” the setback must be measured from rests on the definition of “road” as used in the zoning ordinance. The term “road” is not defined in the ordinance. Article XIII, Definitions, provides that terms or words that are not defined in the ordinance shall have the same definition as the terms or words do in the subdivision regulations or building code. If not defined there either, then Webster’s Unabridged Dictionary, Third Edition is to be referenced. The building code does not define the term “road.” However, the subdivision regulations do. Section III defines “road” as a “Class II, IV or V highway, or a private road built to Subdivision specifications and maintained by a
developer and/ or abutting property owners. The work “road” shall include the entire right of way.” (emphasis added). Therefore, the word “road” as used in the setback provisions of the ordinance refers to the entire right of way, and the setback must be determined from the middle of the right of way.
I understand that the town has been applying the setback from the center of the paved or traveled portion of the road. This makes practical sense because it is often difficult to determine how wide the easement is. However, it is not consistent with the ordinance. I recommend that the planning board examine this issue to determine whether the ordinance should be amended to specifically state from what point the setback is to be measured. Prior approvals of course do not need to be changed. Future approvals should be based on the correct interpretations of the current ordinance.
And the other issue clarified
CORNER LOT
The zoning ordinance defines “Lot Line, Front” as “The property line dividing a lot from a street (right of way)> It then provides that “[o]n a corner lot the owned [owner?] shall designate one street line as the front lot line.” In other words, a corner lot is only required to have one front lot line setback the other is a side or rear lot line, which both carry the same setback distance.”
(See copy of email in file)
Hallahan asked how Bob Stewart (RCS) got center line/right of way.
Bob Stewart replied that he relied on documents in Town Records as a ROW 4 rods wide. Field work for a septic located near the stone wall was reference in the deeds and he made educated assumptions. He went to the State of NH ROW department and found that Davis Rd was once North Road that extended to Warner. Historical extract form “Jewel Records” showed that Mr. Jewel traveled from town to town for NH to determine ROW Roads he looked at records from 1821-1872 specifically Book 2 pg 92-108 Extracted notes from Nov 18 1883 there was a petition by the Selectmen that North Rd was show to extend to Warner. After page tow it says it is a 4 rod road. Davis Rd was created when the land was realigned. Stewart read from the town records from vault in the cellar, page 90
which describes the creation of a highway. (See file for true copies)
Stewart stated that he check the Gerhart/Gerhart records and he did the same as Jewel= defined layout of road in the state (Mr. Stewart could not produce the document) he also referenced that the G/G records noted as same info from Jewel report that it starts at the old N Meeting House (pointing out on big map) where land for firehouse was taken by the town. The center line of North Road where the Construction burm/ mound of dirt is now is where the culvert is... Stewart contests that this is a 4 rod road and to show the ROW center of road, he located the stone wall where it was on the westerly side and noted on the map by line ----- dot. line dot
Bill asked Doug Sweet if this sounds ok to him and he replied yes a good presentation
Andy Supplee Asked how far back is the house from the center ROW to the corner of the house… 63 feet?
Bill stated 33 ¾
Lengthy discussion on ROW
Doug 58 or 59 feet from Center line Row
Bill 4 feet short
Doug – some people measure from the center of the stone wall, some from the road side face, some from the back side face.
Bill We have to use the Center Lind of the ROW... he’s close a little short do we all agree on this? Yes
Bill read the above recorded “Corner Lot Info
Bill lists the issues we have here.
Set back from ROW
2. Wetlands
reading the wetland requirements... 25 feet from the wetland
Andy Supple notes that the entire house is within the 75 ft set back
Dane Headley if we use the center line what is set back?
Doug and Bob 52
Bob we’ll just shorten the house by 4 feet and put it closer to the road.. and further away from the wetland lesser of two
Dill.. concern for abutter.. but the wetland is more important
Dane Headley and Bill Hallahan say we need to settle the wet lands issue first.
Bob said that Peter Shower (spelling?) mapped the wetlands and before he knew he had mapped them his mapping marks were in the same spots. Bob quoted from the 1987 Tech Manual Identifying Hydric Soils, Version 2. Indicate that the town depicts in a different way, muck and peat.
Tom Is it wet or just a few ferns?
Bob scrub wetland. NO Inventory describes it as a multistory wooded scrub scrub wetland. May be some standing water in times of flood or rain. This wetland is a type for storage for run off the type you want to use as a Function and Values Wetlands from the Army Corps of Engineering book this land is good for flood storage. Lost of vegetation a lot of organics to dissipate sediment etc.
Andy asked if he determined the Wetlands line
Bob replied that Peter Shower (spelling)?) did and when he went along his marks followed. He did not find any inconsistencies He noted that he is a Certified Wetland Scientist.
Discussion on prior ownership was by Funke and the state took some land creating the two lots putting in North Road. The Pocharski’s bought the land in 1986. The highway project went through in 1966
Andy Pocharski is selling the lot we have a situation here where we have a lot that cannot be built on
Bill noted that there are probably quite a few lots out there like this
Bob this is a unique Wetland it is a great filtering flood storage type of wetland
Andy can zoning board say he cannot build
Bill yes then the town has to decide on the existing lot what the status is
Dane Headley they may already be asses and not able to build on
Bill noted that at this point we will take comments form the audience:
First to comment is
Mr. Yates an abutter he is not familiar with rules of wetlands just wanted to note that there are to 2 ft culverts at either end on is just before the burm water is entering from property constantly water runs 9 months out of the year can see if from the road
Bill – has the culvert been here a while yes just replaces with a 12 or 18”
Don Davis spoke He went on line and did a little investigating. State has 18 questions and if any one of them is answered yes that it is a Red Flag for a wetland Don went to the map to clarify some of the stone wall issues and discussion on the stone wall was had
Bob is using the rock wall ROW from 1968 info
Andy asked where on the map the culverts were
Mr. Yates pointed out and said one was really close to the burm
Ken and Sue Uzdanovich spoke to the issue that putting a house on the land may contaminate their land… They own behind the fire house and across what concerns them is setting a precedent and he has a big problem with the wetland setback.
Bill agreed with Ken U that we are stricter than the state and on this property it looks like this is the only place to build..
Don Davis.. the potential for this is great through the town and records many not be clear as they are over 100 years old RSA 213.27 gives the Selectmen the right to determine property lines.
Dane our counsel has suggested that our ordinances be changed re set backs some are for aesthetics and some are for safety
Tom Brooks noted there would be not traffic going by this house it is a dead end.
Dane clarified that he was talking about the town in general most zoning ordinances measure from the center line of the road.
Don Davis agrees with Ken that we would be setting a precedent
Bill however, just because we make a decision this time does not mean it applies to every case.
Doug asked if they have construction approval
Bob showed state approval
Doug asked what treatment he has proposed for run off
Bob noted Best Management Practices of course
Bill are you willing to do certain things to care for the run off. what if it can’t be properly controlled?
Bob anyone should be able to handle it using the Best Management Practices
Tom from actual center line from Davis Ct could you slide the house up .. if you push the house up toward the road that would help
Bob yes that could be done, the septic is in front of the house up slope.. would have to change his tank location
Tom the field would stay where it is
Andy the field is in the area beside the house? (looking at big map)
Bob same plan as submitted
Bates look at the map as he has a well on the other side of the road as is concerned as to how close they would be
Doug the lot is 2 acres.. what is jurisdictional wet land
Bob not sure
Bill and Dane say at least 65% wetland.
Bob mentioned again that the lot was created in 1968 and the wetlands ordinance was created after 1968 probably 1970 isn’t this a pre existing lot condition I take on projects to see if they are suitable for the situation.. Look into the sedimentation it provides dissipation for toxins. This piece of land fits the Army Corp of Engineers function of wetland types of values in this type of wetland
Bill made a Motion was made to conclude testimony and close discussion Tom Seconded.
Andy in a discussion in general I wasn’t aware of different degrees of Wetland … also we haven’t asked if there is a more suitable place to build obviously not
Bill we have to look at IV D-2 any wetland defined.. this would fall in to that category
Doug yes poorly drained.. etc. that’s what triggers our setback
Andy having a property that is under consideration for sale that we have to decide if it can be built on sets a terrible precedent we have the entire building in the set back here
Bill yes we have the ROW setback and the Wetlands set back I don’t see how we can do it. It is a unique property if there was anything in its favor I just don’t see what it is. It’s just not in the spirit of the ordinance at all.
Doug only thing is that prior to our ordinance he could have been built on .. town voted a buffer and the relocation of North Rd effects it
Andy just because they could have built doesn’t mean we allow it now
Bill we don’t’ have a grandfather clause
Tom the lot when walked should have been taxed differently
Bill made a motion to end discussion Tom 2nd
Bill asks to go over the SE worksheet
Question # 1 The variance will not be contrary to the public interest
We have testimony that it is contrary to the public interest in that the entire structure would be in the buffer
2. The variance is consistent with the spirit of the ordinance
Not consistent with the ordinance
3. Substantial justice will be done by granting the variance.
No This is a lot that violates two different setbacks and Justice is to follow the zoning
4. The variance will not diminish the value of surrounding properties
No it would not
5 Denial of the variance would result in unnecessary hardship to the owner seeking it..
Yes but owner can get tax relief
5.1 The zoning restriction as applied to the applicant’s property interferes with the applicant’s reasonable use of the property, considering the unique setting of the property in its environment.
Yes as a build able lot, prevents him from selling at this time
5.2 No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property
Strong relationship exists with the wetland buffer and restrictions on the property
5.3 The variance would not injure the public or private rights of other.
No it would not.
Bill made a motion to deny the variance applied for
The vote was 4-1 to DENY the variance
Andy made a motion to close the hearing, Tom seconded.
Hearing ended at 9:30
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