Dunbarton Zoning Board of Adjustment

DUNBARTON ZONING BOARD OF ADJUSTMENT MONDAY, NOVEMBER 14, 2011 DUNBARTON TOWN OFFICES – 7:00 P.M.

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

John Trottier, Chairman David Nault, Vice-Chairman Alison Vallieres, Secretary Dan DalPra Wayne Bracey Michael Kaminski, Alternate

Other Town Officials:

Kenneth Swayze, Chairman, Planning Board Jeff Crosby, Road Agent Barbara McCann, Planning and Zoning

Members of the Public:

Jonathan Riley Holly Riley Bernie Bastian Matthew Routhier Guy Routhier

John Trottier, Chairman, called the meeting to order at 7:00 p.m.

Meeting Posting:

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. In addition, the notice was posted on the Dunbarton Web Page.

Approval of Previous Meeting Minutes - Monday, October 17, 2011

MOTION:

Dan DalPra made a motion that the Dunbarton Zoning Board of Adjustment approve the minutes of the previous meeting of Monday, October 17, 2011 as writtten. David Nault seconded the motion. The motion passed unanimously.

7:00 PM. - CLARA SHELTON, TRUSTEE OF 2000 REVOCABLE TRUST, (K1-05-05) OWNER OF PROPERTY ON 3 STEPHANIE DRIVE, GORHAM POND IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH REQUESTS AN ADMINISTRATIVE APPEAL TO (1) CONTESTING NEW CONSTRUCTION OF SEPTIC SYSTEM LOCATION ON JON AND HOLLY RILEY PROPERTY (K1-05- 06) LOCATED ON STEPHANIE DRIVE AND (2) CLARA SHELTON (AND HUSBAND TOM) SOLD PROPERTY TO RILEYS AS "UNBUILDABLE", AND THE PURCHASE PRICE REFLECTS SAME.

Alison Vallieres stepped down from the Board because of a conflict of interest.

It was noted for the record that Bernie Bastian had written confirmation from Clara Shelton to allow him to speak on her behalf regarding her request for an Administrative Appeal. 2

At this point in the meeting, John Trottier stated the following with regard to his serving on this request:

“In accordance with the Town of Dunbarton’s Code of Ethics, as adopted on March 13, 2001 Section I. C. – Duty to Disclose, I would like to publicly and for the record state that my wife Deborah, is currently employed by J. E. Belanger Land Surveying (Jacques Belanger) as Office Manager/Jack of all Trades.

As a member of the Town of Dunbarton Zoning Board of Adjustment, I feel that I can give the Applicant fair and equal treatment as it relates to this evening’s request for a Variance. Additionally, I feel I am not prejudiced to any degree regarding the pending matter, and I believe I can be totally fair and impartial.

If any member of the Board, the applicant or the public feels I should step down, I will.”

There was no objection, by the Board or members of the public, to John Trottier, Chairman, serving as a voting member of the Zoning Board of Adjustment for the Clara Shelton Request for an Administrative Appeal.

The Chairman asked what exactly was being appealed.

Bernie Bastian stated that they were appealing the fact that the Rileys septic system was constructed within the protective radius of Clara Shelton's existing well. In addition, she was appealing the fact that the Rileys were allowed to build on an "Unbuildable" lot.

Bernie Bastian stated the Town issued a Building Permit to build on an unbuildable lot. The Building Permit was approved by the Building Inspector. The Town knows the lot was unbuildable. It was discovered by the Town that it was unbuildable and this was also reflected in the purchase price. It was also disclosed during the sale by Clara Shelton to the Rileys.

John Trottier, Chairman, inquired "Therefore, you are appealing the decision of the Building Department for an error that the Building Department made, that the septic system is encroaching on the 75 foot well setback, and that the lot was classified as unbuildable.”

Bernie Bastian stated that in addition, when Clara Shelton sold the property to the Riley's, Clara indicated to them that the lot was unbuildable but might be used for a garage or shed to go with the existing house.

Barbara McCann provided a Chronological listing of proceedings for the Riley Lot (K1-06-05). (attached)

It was noted that the State of New Hampshire Department of Environmental Services (NHDES), issued a septic system approval for the septic to be located closer than 75' of the existing well. It was noted for the record that NHDES received all appropriate maps depicting this fact.

John Trottier noted that the Ordinance allows for non-conforming lots in Town. It would appear that this lot fell under that criteria. This makes a difference on the evidence presented.

Bernie Bastian stated that he had given all the maps, etc. to the Building Department. These spelled out what the issues were. Don't know how much of the Town record you want me to submit. This lot was classified as "unbuildable" in 1994 according to the records.

The Chairman noted that the burden of proof is on the applicant to prove to the Board that the Building Department made an error. The applicant should present any and all evidence to support their claim. The Board is unlikely to make a decision based purely on heresay The fact that the 3

Building Department has now issued a Cease and Desist on the Rileys so they can no longer build makes us wonder what you are appealing. The fact that the Rileys are building a house is no longer a fact .

David Nault stated that the Town has pulled the Building Permit and they (Rileys) have to remove whatever they have done to the property. The Cease and Desist was delivered by the Police Department. Therefore, it appears that the Town has corrected the issue. There appears to be no need for an appeal at this point.

John Trottier noted Clara Shelton is contesting the placement of the septic system within her protective well radius and also the fact that this is an "unbuildable" lot.

Following the review of the information, as submitted by Barbara McCann, Mike Kaminski stated his understanding, that in 1994, it only changed the status. It became unbuildable on paper. It appears it was as such when Clara and Tom Shelton sold it to the Rileys. They should have attached it to the Rileys lot. That is the reason the Cease and Desist order was issued because it was documented that it was an unbuildable lot.

David Nault stated Clara Shelton (Bernie Bastian) is appealing the issuance of a Building Permit. What would they be appealing at this point? Once the Building Permit is revoked, there would be no basis for an appeal. Any improvements on the property, the Town has asked them to remove. It sounds like the Town has fixed the problem.

Barbara McCann, Building Department, stated she did tell Clara Shelton that the Building Permit was revoked based on the unbuildable lot status. She chose to go ahead with her appeal.

It was also noted by the Board that the instrument declaring the lot unbuildable is binding on all heirs and successors, etc. and has been recorded at the Registry of Deeds.

Barbara McCann also stated that the Rileys have indicated they plan on appealing the Town revocation of the Building Permit to the Zoning Board next month.

MOTION:

Mike Kaminski made a motion that the Dunbarton Zoning Board of Adjustment table the appeal from Clara Shelton since the Town has issued a revocation order and instructed the Rileys to remove the improvements which have been constructed pursuant to the building permit dated September 7, 2011. . John Trottier seconded the motion. The motion passed unanimously.

The Chairman noted that any further / future appeals should be filed by the appropriate applicant and the burden of proof is on the applicant to prove to the Board that the Building Department made an error. The applicant should present any and all evidence to support their claim. The Board is unlikely tomake a decision based purely on heresay

7:30 PM - MATTHEW, GUY AND FRANCES ROUTHIER (C6-01-01) REQUEST A VARIANCE TO ARTICLE 4, SECTION D. (NON-CONFORMING STRUCTURES) TO ALLOW THEM TO DEMO AND EXPAND A NON-CONFORMING STRUCTURE WITHIN THE 50 FOOT FRONT YARD SETBACK AT THEIR PROPERTY LOCATED ON 1209 MONTALONA ROAD IN THE LOW DENSITY DISTRICT IN DUNBARTON, NH.

Alison Vallieres stepped back to the Board.

David Nault stepped down from the Board because of conflict of interest.

Matthew and Guy Routhier appeared before the Zoning Board of Adjustment regarding their request for a Variance. 4

Matthew Routhier stated that the existing house was within the setback of 50 feet. They plan on demolishing the existing ell on the house now and expand to the side yard area. It will be approximately 367 square feet. He presented plans showing the proposed renovations.

Matthew Routhier addressed the requirements for a Variance as follows:

a. No diminution in values of surrounding properties.

The expansion of this non-conforming structure would not decrease surrounding properties, but increase values due to renovation and continual upkeep. In its current state, the dilapidated structure detracts from surrounding properties. The expansion of the footprint will not be visible from any abutting properties, as it will remain behind the existing footprint of the main house.

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

Granting of this variance would be of benefit to the public interest as this historic structure has been situated on this property since 1775 and is part of the history of Dunbarton. The intention is to rebuild and renovate the house, bringing it closely back to its original state.

c. Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.

a. For purposes of this subparagraph, "unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other properties in the area:

(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and

(ii) The proposed use is a reasonable one.

b. If the criteria in subparagraph (a) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.

The house which is approximately 236 years old was built during a time when no zoning regulations were in place. Houses of this age were built close to the roads to allow for easy trade amongst travelers and allow for easy access to the home from the wagon paths during the winter and spring months. The property is unique to Montalona Road as it is one of only a few original farmhouses left, all of which are located in close proximity to the road. No fair and substantial relationship exists between expanding the current non- conforming structure parallel to the road and Article 4 of the Zoning Ordinance, as the intent of the ordinance is to prohibit expansion of structures, which would encroach upon abutting properties and/or roadways, negatively impacting the public.

The proposed expansion proposed for 1209 Montalona Road is parallel to the road and would no encroach upon any abutters or the roadway itself. The proposed expansion maintains the current development limits of the main house providing no additional visual impact or noticeable alteration to the property. The use will continue as residential, which is reasonable and consistent with the zone and abutting uses.

Granting this variance request would allow for the continued use of the existing structure in a manner that has been in existence for hundreds of years. The house has been vacant for a period of approximately 2 years and is in desperate need of repair and renovation. The 5

proposed expansion will in fact benefit not only my family but the town's tax base, during a time of economic downturn where many properties lay vacant and falling apart.

d. Granting the Variance would do substantial justice.

Granting of this variance would do substantial justice as it would preserve one of the town's historic structures and enhance the rural character of the Town.

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

The use would not be contrary to the spirit of the ordinance as the ordinance was created to maintain the rural character of the land. Allowing the renovation/expansion of a 1775 farmhouse maintains that rural character while allowing the property to be transformed into a more useable and marketable residence with modern touches.

Abutters were noted as follows and that they were all notified by Certified Mail:

Sandryn Taylor-Wysiekierski - Not Present Gerald Dugrenier - Not Present Montalona Limited Partnership - Not Present Michael/Louise Deturk - Not Present JPS & Associates Surveying - Representing the applicant Schauer Environmental Consultants - Present

Members of the Public:

Jeff Crosby, Road Agent, stated he would like to make it part of the record that any of the construction for the driveway be done in such a way to not increase any drainage onto the Town road. Would request that construction not cause any more water to come towards the road.

Kenneth Swayze asked what the status of the encroachment onto the Routhier property by the horse corral was.

Matthew Routhier stated that they have not yet approached the owner regarding this issue.

John Trottier noted the following members would be voting members on this request:

John Trottier Alison Vallieres Wayne Bracy Mike Kaminski Dan DalPra

MOTION:

Dan DalPra made a motion that the Dunbarton Zoning Board of Adjustment grant the request for a Variance from Matthew, Guy and Frances Routhier (C6-01-01) for a Variance to Article 4, Section D. (Non-conforming structures) to allow them to demo and expand a non-conforming structure within the 50 foot front yard setback at their property located on 1209 Montalona Road in the Low Density District in Dunbarton, NH based on the plans and information provided to the Zoning Board this evening. Mike Kaminksi seconded the motion. The motion passed unanimously.

There being no further business, the meeting adjourned at 8:00 p.m.

Respectfully submitted, 6

Alison R. Vallieres, Secretary