DUNBARTON ZONING BOARD OF ADJUSTMENT

MONDAY, JUNE 9, 2003

TOWN OFFICES – 7:00 PM

The regular monthly meeting of the Dunbarton Zoning Board of Adjustment was held at the above time, date and place with Chairman John Trottier presiding. The following members were present:

John Trottier, Chairman

John Herlihy, Vice Chairman

Alison R. Vallieres, Secretary

Gertrude Dulude

David Nault

Scott Ives, Alternate

John Van, Alternate

Ron Slocum, Alternate

The Chairman verified with the Secretary that the meeting notice had been posted in three public places throughout the Town and published in the Concord Monitor for one day. The notice also appeared on the Dunbarton Web Page.

Approval of Previous Month’s Minutes:

Gertrude Dulude made a motion that the Dunbarton Zoning Board of Adjustment approved the minutes of Monday, May 12, 2003 as written. The motion was seconded by John Trottier and passed unanimously.

7:00 p.m. – CONTINUED PUBLIC HEARING – REQUEST FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW JEANNINE DESRUISSEAUX (K1-7-3) TO BUILD A 16’ X 16’ DECK CLOSER THAN 50 FEET FROM THE BOUNDARY AT HER PROPERTY AND A VARIANCE TO ARTICLE 5. SECTION G.1 OF THE WETLANDS CONSERVATION DISTRICT TO ALLOW HER TO PUT A STRUCTURE CLOSER THAN 125 FEET FROM THE WETLANDS CONSERVATION DISTRICT LOCATED AT HER PROPERTY ON 21 KAREN ROAD AT GORHAM POND IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

John Herlihy stepped down from the Board because he was friends with Jeannine Desruisseaux.

Jeannine Desruisseaux appeared before the Board with her request. Jacques Belanger provided a map showing the location of the proposed deck along with distances from the boundary and the Wetlands Conservation District. (attached)

J. Desruisseaux stated that there were many structures at Gorham Pond which have been put in illegally and she was trying to do things by the law. She stated she had gotten permits from the Wetlands Board to put in the wall on the shore of the pond. She had gotten a Dredge and Fill Permit from Wetlands to do work on her property.

The Board determined that she would need a Variance for 30 feet from the southerly side line and 31.9’ from the northerly line. It was also established that she would need a Variance to build 79.4’ from Wetlands Conservation District.

She stated the deck would be built with no walls, etc. She would be putting “TREX” on the decking. There would be rails on the deck for safety, with steps on the front with a banister, etc. She presented pictures showing the property as it is presently. (attached)

J. Desruisseaux answered the required questions for the granting of a Variance as follows:

a. No diminution in values of surrounding properties would be suffered;

Answer: No, absolutely not.

b. Granting the variance would be of benefit to the public interest;

Answer: Absolutely, I would not be hurting anyone.

c. Denial of the variance would result in unnecessary hardship to the owner seeking it;

Answer: Yes, I need to put stairs off my home along with a good sized platform for support.

d. Granting the variance would do substantial justice; and

e. The use would not be contrary to the spirit of the Ordinance.

Answer: This is correct. Yes.

Abutters were read as follows and it was noted that all had been notified by certified mail:

Kim Demetry – Not Present

Cicatelli, Martin and Florence – Not Present

Binda, Alphonse and Mary – Not Present

Terry Johnson – Not Present

J. E. Belanger Surveying – Present. Representing the applicant.

Other members of the Public:

George Holt, Dunbarton Conservation Commission – Stated he was in favor of protecting the Wetlands Conservation District. It is a damaged area already. The more we damage it the worse it will get. It is like “

What will one house do to the school system, etc.” You can deny this on the same basis as the last one the Board looked at. (Bolton). At this point, the Board noted they had approved Bolton to have a structure on the property with no septic facilities or electricity. In addition, they was not an existing home on the Bolton property.

J. Desruisseaux stated that she has had members of the Conservation Commission and the Wetlands Bureau on her property in the past regarding the Dredge and Fill Permit. Other people are doing things without any permits. I am going through the appropriate steps to put on a deck. If I am denied, this would make me want to put it on anyway because everyone else is. I am trying to do things the right way. I am well aware of the water issues and have dealt with Wetlands in the past. When I leave tonight, I would hope you would see this and approve my request.

The Board thanked her for going through the appropriate steps to put on the deck.

J. Desruisseaux stated that she does take the matter seriously. If I came here today and was denied, I would feel badly. The lot was already there before the Wetlands Conservation District was established. I should not be denied this use of putting on a deck on the lake side.

Ron Slocum asked what kind of foundation would be put in.

Answer: Sonar tubes will be used with minimum impact on the area. Will not be causing significant impact.

The Board (John Trottier) indicated they wanted to make sure the deck did not grow any further from an open deck and would always remain “open to the sky”. They want to make sure the 16’ x 16’ deck does not become a 16’ x 16’ bedroom with additional loading on the septic system. This could just keep snowballing.

Gertrude Dulude stated that the entire area has changed over the years from seasonal camps to year round homes.

J. Desruisseaux stated she has been there for thirteen years. I guess there is a piece of me there also. I bought this property with my own hard earned money.

The public hearing was closed at 7:30 p.m.

The Chairman noted the following members would be voting on the Desruisseaux Variance:

John Trottier

Alison Vallieres

Gertrude Dulude

David Nault

John Van

MOTION:

David Nault made a motion that the Dunbarton Zoning Board of Adjustment grant the request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance to allow Jeannine Desruisseaux (K1-7-3) to build a 16’ x 16’ deck closer than 50 feet from the boundary at her property and a Variance to Article 5. Section G.1 of the Wetlands Conservation District to allow her to put a structure closer than 125 feet from the Wetlands Conservation District located at her property on 21 Karen Road at Gorham Pond in the Low Density District in Dunbarton, NH subject to the following conditions:

1. That it be an open 16’ x 16’ deck placed on sonar tubes with an open railing system.

2. That there be no walls or roof structure and no screening.

3. The deck be no closer to the North boundary than 31.9’.

4. The deck be no closer to the South boundary than 30’.

5. The deck be no closer than 79.4’ to the West from the Wetlands Conservation District.

John Van seconded the motion and it passed unanimously.

7:45 p.m. – CONTINUED PUBLIC HEARING – REQUEST FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE TO ALLOW GARY KING (B4-3-1) TO PUT AN ADDITION ON CLOSER THAN THE REQUIRED SETBACK OF 50 FEET AT HIS PROPERTY AND A VARIANCE TO ARTICLE 5, SECTION G.1. OF THE WETLANDS CONSERVATION DISTRICT TO ALLOW HIM TO PUT A STRUCTURE CLOSER THAN 125 FEET FROM THE WETLANDS DISTRICT ON HIS PROPERTY LOCATED ON 1175 BLACK BROOK ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Scott Ives stepped down from the Board because of a conflict of interest, etc. of knowing the applicant.

John Herlihy stepped back to the Board.

Gary King, applicant, and Jacques Belanger, Surveyor, appeared before the Board. Jacques Belanger presented a plan showing the distances for the proposed addition to the house from the boundary and also from the Wetlands Conservation District.

It was noted for the record that this lot was subdivided in 1973 and consisted of 2.3 acres. The house was previously owned by Tom Burack. It is a log home. Schauer Engineering delineated the Wetlands on the plan. It was noted that anything done on the property would encroach upon the Wetlands District.

Gary King stated they needed to put on an addition in order to obtain more living space, living room and dining area. They were not adding any additional bedrooms. Gary King stated the roof pitch for the addition would be a one story shed pitch roof sloping away from the house. The addition will be rough cut lumber to match the upper gable on the existing home.

David Nault - Stated this was a common practice on log homes.

The proposed addition would be 46’ from the Wetlands District.

After discussion, it was determined that the proposed addition was to be 24’ x 26’ instead of the 24’ x 12’ as shown on the plan. This would change the distances needed for a Variance from the boundary.

The applicant answered the questions necessary for the granting of a Variance as follows:

a. No diminution in values of surrounding properties would be suffered;

Answer: No

b. Granting the variance would be of benefit to the public interest;

Answer: Yes

c. Denial of the variance would result in unnecessary hardship to the owner seeking it;

Answer: Yes

d. Granting the variance would do substantial justice; and

Answer: Right, Yes

e. The use would not be contrary to the spirit of the Ordinance.

Answer: Yes

Gary King stated the reason for the addition is that he needs more living space.

Gertrude Dulude asked if this was a paved road.

The Board noted that the road was paved.

Abutters were read as follows and noted all had been notified by certified mail:

Maxfield and Mary Peschke – Not Present

Steven/Karen Cohen - Steven Cohen was present. Stated that he lived across the street from the property. In addition he owned the 42 acres on all three sides of the King property which he bought from Tom Burack, etc. Stated he was strongly opposed to the granting of this Variance. He stated there are two separate Variances, one for too close to the property line and the other from too close to the Wetlands Conservation District. I want to make it clear that property surrounding the King property is subject to no building on the property. Stated he did not feel the applicant has met the tests for the granting of the Variances. No public good will be done by granting either of the Variances. This road was a nice country road previously. Then it was paved and what happens when a road gets paved. Cars go faster. People go 50-60 miles per hour now. I have asked the Town Police to clock people going down this road. I think by allowing the applicant to build within the 50’ setback would be a danger to the applicant and any future owners of the property particularly if they have young children. Setbacks are for good reasons. The applicant was aware of the setbacks for the Wetlands Conservation District around him when he purchased the property. Don’t see how this could be considered a hardship. There are many cars on the property. I don’t know what the Town allows re vehicles on property. I have been concerned about a plywood sign stating “Clean Fill Wanted”. Since the applicant has purchased the property, trees have been cut down and there has been filling around the property. Don’t know if the trees were cut within 125’ of the Wetlands Conservation District. Don’t know if the stream is considered to be a public way. I still don’t have an appreciation for what the applicant is looking for. Two separate and individual setbacks are needed, one from Wetlands Conservation District which I understand is 125’. If the proposed addition is 24’ wide, it is that much closer to the boundary setback. I believe having a Wetlands Conservation District is done not to encroach on the setbacks. If the Town wanted to allow a setback of 75’ they would have done it. My Conservation Easement was in place and Wetlands District also was when the property was purchased by the applicant. Don’t see how it is in the public good to grant this and he should have known that there was no building on the property within the Wetlands District. I am concerned about the cutting of trees and the filling of the property.

Gertrude Dulude asked where the property is located. The Board and the applicant explained the location on Black Brook Road.

Jacques Belanger, Surveyor, noted that Gary King is not into the Wetlands.

Other Members of the Public:

George Holt, Dunbarton Conservation Commission – Stated that he has been out there and inspected the property twice now. Were concerned when we saw the “Fill Wanted” sign. It did not appear that there had been any filling of wetlands. After the DES inspection, we observed property adjacent to King property and the Wetlands Inspector did not feel there were any violations and that it was consistent with DES policy. I do applaud them for mapping the property for wetlands. We are still concerned about runoff from unseeded soils. Regardless, proper siltation and erosion control should be done. I also understand that it is a small lot so there is a need to protect that zone. The Ordinance is pretty vague about what uses are allowed. Again, in this setting, it is a diminished area. Would suggest protecting the Wetlands Conservation habitat for the animals and birds, etc. The Shoreline Protection Act applies to the cutting of trees within 250 feet from water. This allows cutting of no more than 50% of the Basal Area from Shoreline, etc. without a Variance. There aren’t that many trees left in the area.

Steven Cohen – Stated it would not be a concern if the addition were on the back of the house. The Wetlands Conservation District is there for a reason. If you grant this without specific definitions, I don’t feel you are doing your job and upholding the requirements of the Town. This house was built in 1979. The Kings bought into an existing condition.

Jacques Belanger, Surveyor, stated that the living area was in the front on the home and it would not be possible to change the entire layout of the interior.

Steven Cohen – Asked about the vehicles.

Gary King – Stated that all the vehicles in his yard were registered. He stated that a year ago the Town called regarding the filling. They came out and talked with him. The Town stated it was okay to do what he was doing. He stated he restores old cars. Stated that he doesn’t dump antifreeze on the ground or anything like that. Stated he doesn’t hurt the animals. Stated he took the old pine trees down because they were getting pitch all over his wife’s new car.

Gertrude Dulude – Stated that people like to enlarge their living area and you can’t change the road.

Gary King – Stated there would still be plenty of space between the addition and the road.

Mrs. King – Stated when they purchased the home, there was four of them. Once we got settled, we talked about adding on. We are very crowded in there. We lived in Nashua. We just want to make our living quarters larger. We didn’t have the money in the beginning to do this.

Alison Vallieres asked what the width of the Town Road was.

It was noted that it was a three rod road and the Town had finally agreed that it was 50’ wide.

George Holt – Stated that Mary Tilton, Wetlands Inspector, has stated that the fill is in compliance, etc.

Steven Cohen – Stated he was concerned that the fill will be running down into the Conservation District, etc.

He also stated that Five Rivers has an interest in the Conservation Easement and they should be notified.

The Board noted that the owner of the property was Steven Cohen and he was notified.

Alison Vallieres stated that this was a similar situation to the Desruisseaux property in that the house was already built when the Wetlands Conservation District was established. This limits the use of the property to the owner. It is one thing to restrict vacant lots, but it is difficult to prohibit development on an existing home, etc. The home was there prior to the establishment of the Wetlands Conservation District.

The Board agreed to do a Site Walk on Tuesday, June 17 at 5:00 p.m.

MOTION:

John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for the request for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance to allow Gary King (B4-3-1) to put an addition on closer than the required setback of 50 feet at his property and a Variance to Article 5. Section G.1 of the Wetlands Conservation District to allow him to put a structure closer than 125 feet from the Wetlands District on his property located on 1175 Black Brook Road in the Low Density District in Dunbarton, NH. John Trottier seconded the motion. The motion passed unanimously.

APPEAL FROM DAVID AND ROGER NAULT OF THE DECISION OF THE DUNBARTON ZONING BOARD OF ADJUSTMENT DATED APRIL 14, 20003, WHICH DENIED A SPECIAL EXCEPTION TO ALLOW DAVID NAULT AND ROGER NAULT (B6-2-10) TO CONSTRUCT AN ACCESSORY APARTMENT AT THEIR PROPERTY ON 1274 MONTALONA ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

Scott Ives, Alternate, stepped back on the Board.

John Trottier, Chairman, noted the following members would be acting on this Appeal. These are the same members who voted on the request for the Special Exception on April 14, 2003.

John Trottier

John Herlihy

Alison Vallieres

Gertrude Dulude

John Van

At this point in the meeting, Alison Vallieres stated for the record that the Request for the Appeal had been received in a timely fashion according to State Law and met the 30 day requirement.

John Trottier stated that the Board must rule on whether the applicant is presenting new evidence or that the Dunbarton Zoning Board of Adjustment made an error in the decision. These are the only basis for granting a new hearing.

The applicant presented a statement. (attached)

The Board deliberated each statement as follows:

1. All special exceptions to the zoning ordinance were met.

Determination by the Board: The Board agreed that all special exceptions to the zoning ordinance were met.

2. Accessory apartments are permitted per the table of uses on page 13.

Determination by the Board: The Board agreed that this is correct.

3. Under article #2 labeled definitions, a clear description of an accessory apartment is listed. This definition does not state that property owners need to reside on the premises in order to obtain approval for an accessory apartment.

Determination by the Board: The Board agreed that this is a correct statement.

4. Interpretation of the zoning regulation is labeled on page #2 of article #1 of general provisions and this does not state that the board can insert items such as blood relatives or rental property into the definitions of article #2 where an accessory apartment is clearly defined.

Determination by the Board: The Board agreed that based upon the RSA, the Board does have the authority to impose conditions on any request for a Variance or Special Exception.

5. Under article #2 definitions “except where specifically defined herein, the words used in this ordinance shall carry their customary meaning. The following words are specifically defined”. Under these definitions, are accessory apartments, with a clear meaning intended by the founders of this zoning ordinance.

Determination: The Board agreed that there was no true clear meaning. Meanings are not clear and it is up to the Zoning Board of Adjustment interpretation and question.

6. Being where as the founders of the Dunbarton Zoning Ordinance have clearly defined accessory apartments, we feel that there should be no further interpretation of the Ordinance.

Determination: The Board agreed that the Zoning Ordinance hasn’t clearly defined accessory apartments, therefore the Board has the authority to interpret the Ordinance.

Discussion:

The Board noted that the use proposed was on a rental property. There was nothing to make the use incidental and subordinate to the use of the property.

Gertrude Dulude – Stated that we lose control over what it is to be, if it is not defined clearly, what makes it different from multi-family dwelling units.

Alison Vallieres stated that she interpreted the Zoning Ordinance in black and white and what is printed specifically. She stated it was unfair to grant many Accessory Apartments in the past and then deny this one. She stated she felt the Board should strongly consider changing the Zoning Ordinance to include acreage requirements for Accessory Apartments and strengthen the definition of Accessory Apartments at the next Town Meeting.

The Board noted by creating accessory apartments, this kicks into gear incidental and subordinate and blood relatives, guests, farmhouse with a caretaker house, etc.

John Trottier – Stated he felt that the intent was that if someone has hard times, i.e. someone getting foreclosed on, can put in an accessory apartment over garage, etc. Notes there is some disagreement as to what qualifies as an accessory apartment.

The Board noted that no new evidence was presented to the Board with regard to the request and that there was no change in what was voted on before.

Scott Ives – Stated that the Ordinance requires that the Board make determinations as to interpretation of the Ordinance.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment deny the David and Roger Nault Appeal of the Decision of the Dunbarton Zoning Board of Adjustment dated April 14, 2003, which denied a Special Exception to allow David Nault and Roger Nault (B6-2-10) to construct an accessory apartment at their property on 1274 Montalona Road in the Low Density District in Dunbarton, NH. John Van seconded the motion. The motion passed by a majority with the following vote:

John Trottier – Yes

John Herlihy – Yes

John Van – Yes

Gertrude Dulude – Yes

Alison Vallieres – Abstained

REQUEST FOR A VARIANCE TO ARTICLE 4, SECTION B. OF THE DUNBARTON ZONING ORDINANCE FROM DAVID PELLENZ (H2-2-2) TO BUILD AN ADDITION CLOSER THAN THE REQUIRED 50 FEET FROM THE BOUNDARY AT HIS PROPERTY ON 54 RAY ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH

David Pellenz appeared before the Board with a plan showing the proposed 14’ x 22’ addition to the existing home. (attached)

The Board noted that an existing barn/garage was not shown on the plan. There is also a shed between the house and the barn that was not shown on the plan.

David Pellenz stated that the house is very small and he needs to add another bedroom. There is no cellar or attic in the house. He stated the house is very old and has been owned by his family for many years.

The Board noted that because part of the lot is within the flood plain of 420 feet.

Abutters were read as follows and noted that all had been notified by certified mail:

Daryl/Tina Hubbell – Not Present

David Ilsley – Not Present

Ralph Fellbaum – Present. No Comments.

Anna Silva – Not Present

John Trottier, Chairman, stated that the plan as presented does not represent the total layout of the property. The shed and barn are not shown on the plan. He would like a complete plan of the property before making a decision.

The Board agreed that they should do a Site Walk of the property before making a decision. The Site Walk was scheduled for Tuesday, June 17, 2003 at 6:00 p.m.

MOTION:

John Trottier made a motion that the Dunbarton Zoning Board of Adjustment continue the Public Hearing for a Variance to Article 4, Section B. of the Dunbarton Zoning Ordinance from David Pellenz (H2-2-2) to build an addition closer than the required 50 feet from the boundary at his property on 54 Ray Road in the Low Density District in Dunbarton, NH. The motion was seconded by John Herlihy. The motion passed unanimously.

OTHER BUSINESS:

Jacques Belanger, Surveyor, appeared before the Board on behalf of his clients, Louis and Anna Chan, Gile Hill Road. He presented a plan showing a proposed PRD consisting of ten lots with 36 acres set aside as common land. The Board noted that improvements would have to be made on Gile Road.

The Zoning Board has the authority to act on a PRD with regard to less than minimum frontages and acreages. The Board noted that in computing acreages, etc. steep slopes should be taken out from the total acreage.

There being no other business, the meeting adjourned at 10:00 p.m.

Respectfully submitted,

Alison R. Vallieres, Secretary