TOWN OF SUTTON
ZONING BOARD OF ADJUSTMENT
Minutes
Wednesday, April 25, 2007 – 7:00 PM
Pillsbury Memorial Hall, 93 Main Street, Sutton Mills, NH
Present: Bill Hallahan, Chair, Doug Sweet, Derek Lick, Ed Canane, Janet Haines (alternate) and Deborah Freeman (minutes). Absent: Dane Headley and Kevin Carr (alternate).
Mr. Hallahan recused himself from discussions on the Blaisdell Lake Associations.
Blaisdell Lake Protective Association (BLPA)
Bruce Ellsworth and Dave Young provided an overview. The Association received a gift of three parcels, the “Dog House”, the house and the fenced in beach on Route 114 across from the Dog House. In going through the deeds, they found the Wrights deeded more than the fenced in beach area – deed included the area where the docks are located. Regarding the dock area, the opportunities and liabilities are more than the BLPA can take on. BLPA asked the dock owners if they were willing to assume ownership of the area where the docks are located. The dock owners are developing the Blaisdell Lake Dock Owners Association.
The BLPA essentially would like to retain ownership of the fenced in beach area and release the dock area to the newly formed association. This would require making a nonconforming lot more nonconforming.
Mr. Ellsworth stated the Planning Board suggested they obtain a letter from Zoning stating they have no objections to go forward. There are not clear bounds to survey. The Association(s) propose no change to the land or any structures - just allow the people who are currently using the property to continue to do so. Route 114 was an easement provided to the state. Mr. Sweet asked if the five owners on the westerly side have docks. Mr. Ellsworth responded yes.
Mr. Lick clarified their purpose in coming before the ZBA - for a requested subdivision of a nonconforming lot. He further stated the ordinances seem pretty implicit to cover alterations, change in use, etc. There is no change in use here - With exception of minimum lot of less than 2 acres. No alteration, no building will take place.
Is it the dock owners association’s intent to keep the perspective docks with the property (homes) and not sold as a separate entity? Mr. Ellsworth responded it is understood, but should be stated.
Regarding a letter of concurrence from Zoning Board to Planning Board, Mr. Canane stated he has no objections. To expedite the process a letter from the new association to the ZBA should include language of the transfer, who it affects, the covenants, and the use of the lots. Mr. Lick suggested the Dock Association file an application for a variance.
Morrissey – Variance
Case: 07-01 Map/lot 02-556,321
A request by John and Daniel Morrisey for an area variance to the terms of Article IV section D.2 of the Sutton Ordinance to construct a 16’x16’ porch within 24’ of the jurisdictional shoreline on the above referenced property located at Bass Point Road in the residential district. The structure setback requirement is 75’.
RC Designs, Sam Vose representing the Morrissey’s, provided a letter of representation. They would like to put a screened in porch 16’x16’ attached to their existing cottage to access their home via a ramp. Chair Hallahan stated he and Mr. Sweet viewed the property and the application. Mr. Hallahan stated the proposed porch is not any closer to the beach than the house. The construction was described as: on posts, stick build to match the house, screened on all three sides, the roof shingled to match, gutters to run into a drywell on the drive side of the building. Board members agreed the gutters to the uphill drywell are a good idea.
Mr. Hallahan pointed out runoff from the roof into the lake is a concern, this can be a condition. Mr. Sweet pointed out the proposed porch addition is going to occupy all the proposed retaining area which he measured to be 13’. Mr. Vose stated he is not very familiar with the project and suggesting the corner may be cantilevered.
Mr. Sweet: The large pine tree about 16’ out, will it be removed? Mr. Vose did not know. Chair Hallahan suggested this appears to still be in the proposal stage. Mr. Canane stated he also visited the site, measured, and concurs with Mr. Sweet’s finding that there is only 13’ to the retaining wall – it appeared the porch was proposed to be over the terrace and of course there is the tree. Mr. Vose stated removing the tree would be allowed by it’s proximity to the home.
Mr. Canane suggested a note on an approval that it is 13’ versus the requested 16’. Ms. Haines suggested a condition that the construction and building not to disturb the existing retaining wall. This was discussed.
Chair Hallahan made a MOTION to open the meeting to the public. Seconded by Mr. Canane. Hearing no one wishing to speak, Chair Hallahan made a MOTION to close the public hearing and reopen the meeting. Second by Mr. Canane. Unanimous affirmative vote (5:0).
Board deliberated and completed area variance worksheets. Chair Hallahan: Based on the application there appear to be no objections. Board discussed conditions to apply. Chair made a MOTION to approve the application as presented with the following CONDITIONS:
1. Installation of gutters that direct any rain to a drywell area located on the up hill side of the porch.
2. Necessary erosion control, best management practices to be observed.
3. The plan indicates a 16’ wall area, the existing wall is only 13’ wide. Retaining wall shall not be moved further from the building than it currently is.
4. Porch will remain screened.
MOTION seconded by Janet. Unanimous affirmative vote (5:0).
Davis – Special Exception
Case: 07-03 Map/lot 01-516,086
A request by Clark Davis for a special exception to the terms of Article 4.B.1. to convert a storage area in an existing attached barn to a one bedroom apartment. Property located at 20 Morse Loop Road in the rural agricultural district. Ordinance V.A.1. requires a special exception.
Mr. Clark Davis noted that in his letter to the board outlining his intent for the proposed project, he referenced a four bedroom sewer designed in “1999” and it should read “2001”. As written, he proposes to convert a space in the attached barn into a one bedroom apartment to provide a place to stay during the restoration project and accommodate a personal assistant should one become necessary in the future. His goal for the property is to complete a restoration project on the older 1830 family homestead. The house has been vacant for about five years. Mr. Davis stated he grew up in the house and inherited as a young man. He did some structural restoration in the 80’s. Mr. Sweet asked when was the garage behind the house was constructed. Mr. Davis
responded in 1999. The house has 2/3 bedrooms. Mr. Sweet shared that the septic load for a one bedroom apartment is actually 1 ½ bedrooms.
Chair Hallahan made a MOTION to open the public hearing. Hearing no abutters, Chair Hallahan made a MOTION to close the public hearing and reopen the meeting. Seconded by Ed. Unanimous affirmative vote (5:0).
Board deliberated and completed the special exception worksheets.
Chair Hallahan made a MOTION to approve the application. No conditions necessary. Mr. Sweet proposed a CONDITION that the approval is for a one bedroom apartment and that the bedrooms in the main house restoration not to exceed two without an update to the septic system as required.
Mr. Canane seconded the motion. Unanimous affirmative vote (5:0). Mr. Hallahan made the Davis’s aware of the 30 day appeal process and that a building permit requirement.
Wheeler – Variance
Case: 07-05 Map/lot 02-242,536.
A request by Justin and Wayne Wheeler for a variance to the terms of Article 4, C.3.a., minimum lot width. Ordinance requires 250’, proposed lot width is 225’ on Jolly Farm Road in the residential district.
Jeff Evans, Evans Land Consultants, LLC and Justin Wheeler presented the request.
Chair Hallahan read for the record Ordinance IV. C.3.a. Minimum Lot Width for a lot in the residential district (250’) and Ordinance V.C.3.a. Minimum Lot Width for lot in the rural agricultural district (200’).
The proposed variance for the required frontage is to allow Wayne Wheeler to subdivide his farm and leave it to his two grandsons. The surveyed frontage is 475’. The proposed subdivision is two lots, 29 acres and 13 acres. The plan shows a 4.2 acre proposed easement for Wayne Wheeler’s use during his lifetime which would be incorporated into the deed. Plan shows a 25’setback where only 15’ is required. Mr. Hallahan clarified the proposed house on the 13 acre lot is going in the in the back area. Board discussed where the residential area and rural/agricultural areas are designated – this property is in both.
Chair made a MOTION to open the public hearing. Hearing no one wishing to speak on this application, Chair made a MOTION to close the public hearing. Second by Mr. Canane. Unanimous affirmative vote (5:0).
Board deliberated and completed the variance worksheets.
Mr. Sweet commented frontage is in part to maintain the rural character, this will be maintained. Any time we can subdivide 30 acres in to two lots the community is well served.
Chair Hallahan made MOTION to approve the application as applied and grant the variance. Mr. Canane Seconded. Unanimous affirmative vote (5:0).
Gallagher - Variances
Case: 07-04 Map/lot 01-543,090
A request by Deborah Gallagher for Article 5 C.4. Building Set Backs and Article(s) 5.D.1., 5.D2., 5.D.3a., b. c. Shoreland requirements for building, septic system, septic tank, and setbacks from ordinary high water mark. Property located on Morse Loop Road in the rural agricultural district.
Chair Hallahan read for the record the ordinances relative to these variances; VC.4. Set-Back Building Lines, stating no building…more than 4’ high shall be erected within 66.5’ of the center line of any 2 rod street or right-of way… Ordinance V.D.2. septic systems are prohibited within 75 feet of any wetland… Ordinance V.D.3.c. stating setback shall be 75’ from the ordinary high water mark.
Jeff Evan, Evans Land Consultants, LLC representing the property owner.
Chair Hallahan pointed out the drawing provided shows no distances to the Warner River. The mobile home requesting to be replaced and expanded is set on the old mill foundation. Evans stated there is a mill privilege there – a small piece of property across the river that goes with this particular piece. Regarding replacing the sewer system there is a 4” pipe from the trailer in to the ground – no seems to know what, where it leads. Evans proposed a replacement system that is essentially a mini home sewer treatment plant; a system frequently used on water front properties. The existing 10x50 mobile home not replaceable by a mobile home as no such size is available. Nothing about the existing dwelling meets any setback. There is a sale conditional to allowing the
replacement of this mobile home. Mr. Evans stated the importance of improving this lot to sell, lies in that it is the sole financial means to care for Mr. Gallagher; it is all he has.
Mr. Lick asked what are the setbacks on this plan. Mr. Evans responded the structure to the middle of the road is @ 38’, the setback requirement is 75’; the high water mark current and proposed is @ 15’; the requirement is 75’; septic to centerline proposed is @ 28’; proposed septic to river is @ 50’, the requirement is 75’. The proposed septic design will need to be waived by DES. Mr. Evans described the proposed septic system and how it works.
Mr. Lick asked if this proposal will require approval relative to the Comprehensive Shoreline Protection Act. Response was yes. Mr. Lick stated the ordinances dictate that if someone wished to rebuild on a nonconforming lot, it needs to be on the same footprint. Allowing expansion to further exceed the setbacks already not being met raises concern for the ordinances they are trying to protect.
There was some discussion regarding whether this property is in the flood plane – it was unclear based on the information available.
Chair Hallahan made a MOTION to open to meeting to the public. Mr. Canane Seconded.
Photos submitted by an abutter, the Davis’ were circulated.
Ms. Freeman read abutter written responses into the record as follows:
Received and signed by Evelyn and Clark Davis, dated April 18, 2007
This letter is to notify you that we are opposed to the granting of variances to the terms of Article V, section C.4. building set-backs, and Article V., sections D. 1, 2 ad 3 shoreland and wetlands overlay district requirements, to replace and expand existing mobile home and the installation of a septic system on the above referenced property for the following reasons;
1. The Warner River is classified as a fourth order river, and as such, required set-back for new dwellings is 75 feet. In this case, it would appear that a new mobile home conforming to the dimensions of the former structure, and not extending any further into the buffer zone would have an actual setback of 0 feet. (See enclosed photos.)
2. The entire lot is in a flood prone area. Federal flood maps delineate this area to fall within Zone A, which is an area of special flood hazards. In times of high water, such as this past week, pollutants from a septic system installed on this property, could conceivably wash directly into the Warner River.
3. The septic systems setback requirements under Article V., sections D. 1, 2, and 3 are clearly not able to be met. In fact, the configuration of the lot, along with the location of the mobile home are such, that none of the setback distances can be met without impinging on the other setback liens. In other words, it would appear that none of the criteria for a safe and workable septic system could be met.
We, the undersigned, urgently request that the SBA deny the request for variances in this matter.
Received via email from David and Laura Thurlow, 67 Morse Loop Road, re: Gallagher Proposal to replace the mobile home and septic– dated April 16, 2007: Please strictly adhere to all local and state ordinances for the protection of the Warner River.
Received via email from J. Holly Meyrick: As a property owner on Morse Loop I am opposed to the ZBA granting any variances to the building or septic system setback requirements on the Deborah Gallagher property.
This property is located in the flood zone and the narrow lot configuration does not meet requirements.
I urge the board to adhere to the town and state regulations and deny the request.
Chair recognized Mr. Shoemaker of 15 Morse Loop, he read a written response:
I write to express my concern for clean water and the impact of this existing home on the Warner River. This application for variances looks to replace or expand an old trailer and install a septic system on a very narrow strip of land between Morse Loop and the Warner River, that was never intended to be a building lot. Someone backed a trailer in and set it up in the days before zoning and shoreland setback restrictions – they would have prevented this. It has been a mystery if there has been an existing septic system for this home and how it could be possibly be protecting the water quality of the Warner River. When in close proximity to the water, present day compliant systems are generally of the pump-up type to get effluent away from bodies of water. Because of the long narrow shape
of this lot it might be questionable that this is an option.
Now that the previous owner/occupant has moved out questions arise: How long to you grandfather a potentially incompliant outdated situation? Should you make exceptions to wetland and Shoreland setback requirements? In conclusion, I have reservations about the granting of these variances and voice my concern for the clean water in the Warner River.
Mr. Shoemaker added, I have lived on Morse Loop for 25 years, I know the area and Mr. Gallagher – he has moved to a cabin in West Virginia and sounds quite content – he sold this property to his daughter, who is looking to make improvements for the purpose of turning a profit. My understanding is she has no desire to live there.
Evelyn Davis stated the owner has alternatives; they have a sale and a contingency. There is no hardship for the Mr. Gallagher, no hardship for his daughter, or for a perspective owner.
Mr. Hallahan made a MOTION to close the public hearing. Seconded by Janet.
Board deliberated and completed their worksheets.
Mr. Lick broke his answers down to separate the proposed replacement of the home from the proposed replacement of the sewer system. Maintaining the use of the property can be sought by another method, there is the choice to build in kind, and therefore, the house does not meet the test. On the septic issue, this is a well recognized as a good system, better than current. Mr. Sweet added the heavier potential of an expansion may mitigate the benefit of a more modern septic system.
Board concurred that on test #4, substantial justice was not proven.
Chair Hallahan made a MOTION to deny the application stating he this is not an application he can feel comfortable with expanding on the existing structure. Mr. Canane pointed out a “no” on any one question is a denial of the application. Mr. Lick added he is less concerned about the septic replacement because of the Department of Environmental Services oversight.
Chair made a MOTION to deny because it does not meet the criteria. Seconded by Janet. Unanimous negative vote to deny application (5:0).
SBA – Special Exception for a cell tower
Case: 07-02 Map/lot 05-356,586
A request by SBA Communications for a special exception to the terms of Article III:O Section 1. to allow for the construction of a personal wireless service facility, including an 85’ flush mounted monopole on Mastin Road in the rural agricultural district.
Chair Hallahan read for the record Article III:O, Personal Wireless Service Facilities (PWSF) 1. Purpose and Intent: 1.1 It is the express purpose of this Article to permit carriers to locate PWSF in the Town of Sutton consistent with appropriate land use regulations that will ensure compatibility with the visual and environmental features of the Town. 1.2 New ground-mounted PWSF are permitted, but only when the use of existing structures and buildings are found not to be feasible. Co-location is encouraged for PWSF applications.
This tower was approved 5 years ago - The current application did not clearly delineate any changes.
Attorney Jonathan Springer for SBA: There are no changes – only the company changed IWO to SBA. Regarding the use of an existing structure, there are no existing 85’ facilities, this is a low tower, and the height is 20’ above the tree line. The trade off for taller towers is more towers. This one is designed for a total of 3 carriers. There are 5 or 6 carrier towers.
Chair Hallahan asked what has changed. Stating initially the concern is not to have multitudes of towers; it is low profile, nothing objective. There is not currently a committed carrier - Springer suggested this could be a condition of approval.
Springer read the special exception criteria submitted in his application.
Chair suggested a letter answering the questions outlined in the March 8th, 2007 letter from Ms. Phillips for the ZBA, would probably best answer the application questions. Please present reasons in writing to support this special exception. A letter of commitment from a carrier is required.
During the last discussion someone raised the issue of historical significance and compliance – a letter stating no adverse effect is issued by NH Historical Resources and tied in to a federal (FCC) requirement. It is required prior to building - it is a totally different process.
Chair opened and closed the public hearing, hearing no public input. Board discussed conditions and completed the special exception worksheets.
MOTION to grant this application for special exception with CONDITONS: 1) SBA supply written answers to the questions outlined in the March 8, 2007 letter; 2) a letter of intent from a carrier be provided; and 3) a gate provided on the property as stated in the 2002 approval. Mr. Canane seconded. Unanimous affirmative vote (5:0).
Motion to adjourn. Seconded. Unanimous affirmative vote (5:0). Meeting adjourned 10:50.
Respectfully submitted,
Deborah Freeman
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