TOWN OF GILMANTON ZONING BOARD OF ADJUSTMENT THURSDAY, AUGUST 21, PM. ACADEMY BUILDING MINUTES

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1 Chair Elizabeth Hackett called the meeting to order at 7:08 PM. Members attending: Elizabeth Hackett, Perry Onion, Mike Teunessen, & Nate Abbott. Members not attending: none Also in attendance: Annette Andreozzi, Land Use Administrator Ms. Hackett made introductions and explained the ZBA procedures. She stated that there were only 4 Board members present and the applicants could ask to continue the hearing until there were 5 members. Three positive votes would be needed for any decision to pass. Both applicants said they would continue with 4 members. OLD BUSINESS Continued Public Hearing Case # Antonopoulos Realty Trust, owner; Antonopoulos Realty Trust is requesting a variance from Zoning Ordinance Article XV-A, Article IV Table 2, and Article VII-C to build a single family dwelling on a non-conforming lot, that does not have the required 150 lake frontage, has no road frontage on a class V road, and the house would not be the required 75 from the lake. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. Attorney Durbin was representing the Antonopoulos Trust. He said the ZBA was aware of the history of the property, and that Mr. Antonopoulos had a survey of the property done including where the house and septic would be. The closest point the structure would be to the lake was There is a private maintenance agreement for the private road. The lots in the area were created before current zoning. Many of the lots that have been built on have homes inside the 75 setback from the lake. The subject property was abutted by town property, and on the other side by the applicant. Mr. Antonopoulos would like to build a modest home on the lot. Mr. Durbin stated that the primary article that was being dealt with was Article 15 of the zoning ordinance. In addressing the spirit of ordinance he stated there would be no apparent impact to water quality. The property would be left in the natural vegetative state, leaving a buffer between the home and the lake. He stated that not every lot has been developed but the majority have single family homes on them, which speaks to the purpose behind the ordinance that the aesthetic character of neighborhood not be affected. 1 of 11

2 Speaking to public safety, he stated that there are no plans to have a motorized boating operation or a dock. He said there was adequate access to the property in event of an emergency; emergency vehicles have been able to access the private road over time. The request will not injure rights of others. There was no public interest in denying the request. Substantial justice test has to be weighted to the hardship to the applicant, which outweighs any benefit to the public by denying the applicant. There was no economically viable way to use the property if the request was denied, though he could use the property. The project will not diminish value of properties. He referenced a letter from a realtor that said property values would not be diminished. In reference to the hardship criteria he said that the lot is one of record with only.23 acres. The dimension and location of the lot make it hard to develop without relief from the Board. The applicant has made an effort to meet all setbacks except from the lake. He stated that there was no relationship between the ordinance and the created lots. The zoning ordinance encroached upon the development, because there was a need to put the brakes on future development. The use needs to be a reasonable one, which was to create a single family home. Since 2006 there were two other projects granted variances in the area. Mr. Abbott stated that the septic design for the lot has been approved by the state. Mr. Onion said that Ms. Nyren wrote a letter questioning how much of the adjacent town land was being used by the applicant. Mr. Antonopoulos said the land was now surveyed. Mr. Abbott said that what he was hearing from Mr. Durbin was that the applicant s lot was a building lot and then zoning encroached on the rights of the property owner and deprived him of them. Mr. Durbin said yes. Mr. Abbott said his understanding was that there are several higher density areas in town around water bodies. They were mostly done in the 50 s & 60 s to make an inexpensive opportunity for persons not living in town to acquire property and experience the water without saying how they would do it. These areas predated zoning. Some of the water bodies in the southern part of in the state were entirely build out, and the water bodies were destroyed. So the spirit of zoning is to protect the water bodies. Around 1976, the town developed zoning and every year there have been changes. This town has voted and said they don t want the intense building these lake subdivisions would allow. Ms. Nyren s house was built in 1972, before zoning. He believed the ordinance was put in place because of the over development. Every other lot Mr. Durbin mentioned that has been developed on Valley Shore is at least double the size of the applicant s lot. 2 of 11

3 Mr. Durbin said that the town involuntarily merged lots. There was a discussion about unmerging lots. Mr. Abbott said that the possibility of unmerging lots was not relevant to the applicant s lot. Mr. Durbin stated that there was general development along Valley Shore Drive, and the general development pattern was that houses were close to the water. Mr. Jean said the density of Ms. Nyren s lot was more than his lot. He stated that when owners are denied to build on a lot then campers go on those lots. The covenants on the subdivision do not allow campers. There was no problem with the lot flooding. He was given a lot variance from the water setback. Fire trucks have been on the road. He does not want to see campers on lots. He stated that there was a road maintenance agreement. Mr. Onion stated that the ordinance was enacted to prevent the shore from having too much development. Mr. Durbin believed he had met the criteria and Mr. Antonopoulos deserved to make reasonable use of his property. Mr. Onion stated there is no guarantee that one can make money on buying a property. The value of this lot was in protecting the applicant s adjacent property. Mr. Abbott said the case was about just one lot that became non-conforming when the legislative body zoned this area rural because the development scheme was flawed. Mrs. Jean said that when they came before the Board the concern was on the impact to the town. She stated they had done a lot for the town, and that the town would be enhanced because there would be another home to help the Jeans maintains the road. Ms. Hackett stated that a two bedroom home was shown on the application and that would be the maximum number of bedrooms to be built and there will be no steps that will go into the setbacks. Mr. Durbin stated that if approved, the space shown on the plan is all that can be used no more. Mr. Onion moved to close Public Hearing Case # Antonopoulos Realty Trust, owner. Seconded by Mr. Teunessen. Motion passed unanimously. 3 of 11

4 NEW BUSINESS Public Hearing Case Public Hearing Case# Shawn McCarthy owner: requests a variance from Zoning Ordinance Article IV Table 2 and Article VII-3 to increase the non-conformity of the deck by adding steps that are about 50 from the lake. Setback is 75. Property is.18 acres located at 69 Leatherstocking Lane, Map/Lot# 133/45 in the Rural zone. Mr. McCarthy in 2009 applied for a variance to build a deck. He had a DES Shoreland permit. The path to the entry was causing erosion. The path was steep so he wants steps to come out the center of the deck to make less erosion. He contacted the state and was told a new DES Shoreland permit wasn t needed. Grass can grow under the steps. There will be no impact. The neighbors told him they didn t care, the steps protect the lot and there will be less erosion. He said the steps wouldn t change the nature of the neighborhood. He stated that state law says he can build a path to the water even if the path is elevated. Ms. Hackett stated that when the deck application was made she had clearly asked if the applicant was going to have steps, but because of time and erosion the applicant is back. Mr. McCarthy said that the stones near his deck cause people to fall. Ms. Hackett stated that there was a 26% grade. The deck is 52 from the water, and the steps would be 38 from the water according to the drawing submitted. Mr. McCarthy said the steps under the deck would be 6 wide then go down to 4 when they emerge from under the deck. Ms. Hackett asked if there was going to be a problem with not enclosing under the deck. Mr. McCarthy said no. Mr. Teunessen moved to close Public Hearing Case #2014 Case# Shawn McCarthy owner. Seconded by Mr. Abbott. Motion passed unanimously. 4 of 11

5 DELIBERATIVE SESSION: Case# Shawn McCarthy owner Mr. Abbott move to grant a variance in Case # 2014 Shawn McCarthy owner from Zoning Ordinance Article IV Table 2 and Article VII-3 to increase the non-conformity of the deck by adding steps that are about 50 from the lake. Setback is 75. Property is.18 acres located at 69 Leatherstocking Lane, Map/Lot# 133/45 in the Rural zone. a. The granting of the variance would not be contrary to the public interest because it is in support of improving the environmental quality of the area which has been demonstrated to be deteriorating; b. The spirit of the Ordinance is observed because the measure would improve the environmental quality of the area; c. By the granting of the variance substantial justice will be done because less damage will occur to the property and to the lake; d. No diminution of value to the surrounding properties has been shown; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it owing to these special conditions of the property that there are slopes that are subject to erosion when walked on and the applicant if denied would be forced to suffer for the damage to his property and to the environment, i. a fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because granting the variance would improve condition of the environment AND ii. the proposed use is a reasonable one because it improves the safety and environmental conditions of the property. CONDITIONS: Steps will be built according to plans submitted with application. Mr. Teunessen seconded. Motion passed unanimously. 5 of 11

6 Case # Antonopoulos Realty Trust owner There was discussion on the fact that the ordinance has changed to allow building on non-conforming lots if all other issues are met. Ms. Hackett stated that there were three variances being asked for. It was stated that there was a road agreement. There was a lot of discussion on unmerging, but that was not relevant to the case. Any decision would not set a precedent because each case was a separate issue. Mr. Abbott stated that there was alot to go through. Ms. Hackett said that small lots are not normally granted more than one building on a property. This lot does not have 150 of lake frontage. Mr. Onion said he would vote no on a motion to grant a variance to the 150 rule and to the class five road rule. He would vote yes to inside the 75 lake setback. Mr. Teunessen said he would vote to approve. Mr. Abbott was in favor of granting a variance for not being on a class five road and inside the 75 lake setback, but not less than 150 of lake frontage. He stated that there has been an ongoing road maintenance agreement. His condition would be that the Antonopouloses sign that agreement. There is evidence that now the road is maintained. Mr. Teunessen stated that there is no governmental organization that takes care of the roads in Valley Shore. Mr. Abbott asked if the ZBA should consider that the town took the adjacent lot for conservation. All the other lots have 150 feet of lake frontage. This lot is the only one left. MOTION #2: Mr. Abbott moved to grant a variance in Case # Antonopoulos Realty Trust owner from Zoning Ordinance Article IV Table 2 to build a single family dwelling on a nonconforming lot, the house would not be the required 75 from the lake. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. a. The granting of the variance would not be contrary to the public interest because it would create a dwelling that is situated similarly to other houses in the district with respect to its distance to the water; 6 of 11

7 b. The spirit of the Ordinance is observed because a dwelling is created in a way that is consistent with other dwellings in the area with respect to its distance to the water; c. By the granting of the variance, substantial justice will be done because there will not be an unfair situation created as a result of its proximity to the water; d. By granting the variance, there would not be diminution of value to the surrounding properties because the house would be consistent with those surrounding properties with respect to its distance to the water; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it, owning to special conditions of the property which are that the lot was created in an era prior to zoning and insufficient space was provided for the setback from the water i. no fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because its situation to the water is as good as those in the district AND ii. the proposed use is a reasonable one because it fits the use intended for the subdivision. CONDITIONS: 1. The east corner as presented on the plan presented to the Board shall not be less than 51.4 feet from the high water mark of the lake, and the south corner shall not be less than 62.1 feet from the high water mark of the lake. 2. The surveyed plan submitted to the ZBA will be recorded at the Belknap County Registry of Deeds. Mr. Teunessen seconded. Motion passed unanimously. MOTION #3: Mr. Abbott moved to grant a variance in #Case # Antonopoulos Realty Trust owner from Zoning Ordinance Article VII-C to build a single family dwelling on a nonconforming lot, which has no road frontage on a class V road. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. 7 of 11

8 a. The granting of the variance would not be contrary to the public interest because a private road maintenance agreement exists which provides for safe transit on the roads that pass the residential houses; b. The spirit of the Ordinance is observed because the orderly process allows for access and egress of these properties; c. By the granting of the variance, substantial justice will be done because the applicant will not be denied right to a property which had adequate access via a privately maintained road; d. By granting the variance, there would not be diminution of value to the surrounding properties because no such impact is relevant to access via the road; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it, owning to special conditions of the property which are the property was subdivided in a time before zoning and therefore the subdivision and the road were never accepted by the town i. no fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because the creation of this dwelling will not impact the safety or wellbeing of anyone AND ii. the proposed use is a reasonable one because the dwelling is fully accessible year round over a maintained road. CONDITIONS: 1. James & Stella Antonopoulos must execute their agreement in the private road maintenances agreement for Valley Shore Drive as presented in exhibit D Doc# May 11, 2012 Book 2772 Page 0464 Register of Deeds, Belknap County, prior to the issuing of a building permit. 2. The surveyed plan submitted to the ZBA will be recorded at the Belknap County Registry of Deeds. Mr. Teunessen seconded. Vote was 3 in favor 1 opposed. Motion passed. MOTION #1: Mr. Teunessen moved to grant a variance in #Case # Antonopoulos Realty Trust owner; Antonopoulos Realty Trust from Zoning Ordinance Article XV-A, to build a single family dwelling on a non-conforming lot, that does not have the required 150 lake frontage. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. 8 of 11

9 a. The granting of the variance would not be contrary to the public interest because there would be no apparent increase in traffic flow in that part of Shellcamp Lake; b. The spirit of the Ordinance is observed because it would appear to protect water quality in and around the shore of that lot; c. By the granting of the variance, substantial justice will be done because development of the lot will fit the aesthetics of that part of Shellcamp pond; d. By granting the variance, there would not be diminution of value to the surrounding properties in that single family dwellings are clustered in this part of Valley Shore Drive; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it, owing to special conditions of the property which are the size of the lot which would restrict the size of any building placed on it i. a fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because owing to its size this parcel is limited in its ability to be developed AND ii. the proposed use is a reasonable one because the building of a single family residence would add to the character of the neighborhood. CONDITIONS: 1. No point of the building, decks, steps, porches, bays, overhangs, or any construction may be closer to the water than 51.4, nor may they encroach into any other setback. 2. There can be no additions to the house of any kind. 3. There can be no additional structures on the lot. 4. Any landscaping will be done to prevent drainage into the lake. 5. The surveyed plan submitted to the ZBA will be recorded at the Belknap County Registry of Deeds. Ms. Hackett seconded. Mr. Abbott read Article 15 of the zoning ordinance and thought that it said 150 of lake frontage was needed or a common area. Mr. Onion said the first lines of the ordinance state the purpose of the 150 is to prevent overcrowding of the shore front in the interests of public safety and preservation of aesthetic values. The lawyer wanted the ZBA to look at just the 5 nearby lots not the rest of the pond. Mr. Abbott said if there was a private waterfront park that all the residences had rights to and it could never be built upon that would be an enormously valuable thing. Mr. Teunessen said that the map he was looking at said lot 1 was Valley Shore 9 of 11

10 Development common area and there was more than 150 of waterfront. Ms. Hackett said there appears to be a common area. Mr. Abbott said the previous two motions do not fundamentally change what has been approved in this area since zoning occurred. This motion does. The town has been consistent with respect to building permits in this district since The ZBA would be changing that by granting this motion. Mr. Teunessen said the precedent has already been set by granting permits on Sawyer Lake. What is the difference between one lake and another? The septic has been approved on this lot. Mr. Abbott said a lot of the houses on Sawyer Lake were built before zoning. If there were a row of non-conforming houses existing it would be hard to deny the next one. That wasn t the case on Valley Shore. There was only one house before zoning or building approvals. The subdivision was never approved by the town. Vote was two in favor and two opposed. Motion does not pass. Ms. Hackett stated that on this case there were 3 different motions. The issue of building with less than 150 of lake frontage has not passed. Two of the three motions have passed. Mr. Onion stated that he hoped the applicant understood that he had to act according to law; it was not personal. APPROVAL OF June 19, 2014 meeting MOTION: Mr. Teunessen moved to approve the minutes of the June 19, 2014 meeting as amended. Seconded by Ms. Hackett. Motion passed 3 in favor, one abstention. ADJOURNMENT: Motion was made by Mr. Teunessen and seconded by Mr. Abbott to adjourn. Vote passed unanimously. Meeting adjourned at 11:05 PM. Respectfully submitted, 10of 11

11 Annette Andreozzi, Land Use Administrator 11of 11

12 Chair Elizabeth Hackett called the meeting to order at 7:08 PM. Members attending: Elizabeth Hackett, Perry Onion, Mike Teunessen, & Nate Abbott. Members not attending: none Also in attendance: Annette Andreozzi, Land Use Administrator Ms. Hackett made introductions and explained the ZBA procedures. She stated that there were only 4 Board members present and the applicants could ask to continue the hearing until there were 5 members. Three positive votes would be needed for any decision to pass. Both applicants said they would continue with 4 members. OLD BUSINESS Continued Public Hearing Case # Antonopoulos Realty Trust, owner; Antonopoulos Realty Trust is requesting a variance from Zoning Ordinance Article XV-A, Article IV Table 2, and Article VII-C to build a single family dwelling on a non-conforming lot, that does not have the required 150 lake frontage, has no road frontage on a class V road, and the house would not be the required 75 from the lake. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. Attorney Durbin was representing the Antonopoulos Trust. He said the ZBA was aware of the history of the property, and that Mr. Antonopoulos had a survey of the property done including where the house and septic would be. The closest point the structure would be to the lake was There is a private maintenance agreement for the private road. The lots in the area were created before current zoning. Many of the lots that have been built on have homes inside the 75 setback from the lake. The subject property was abutted by town property, and on the other side by the applicant. Mr. Antonopoulos would like to build a modest home on the lot. Mr. Durbin stated that the primary article that was being dealt with was Article 15 of the zoning ordinance. In addressing the spirit of ordinance he stated there would be no apparent impact to water quality. The property would be left in the natural vegetative state, leaving a buffer between the home and the lake. He stated that not every lot has been developed but the majority have single family homes on them, which speaks to the purpose behind the ordinance that the aesthetic character of neighborhood not be affected. 1 of 11

13 Speaking to public safety, he stated that there are no plans to have a motorized boating operation or a dock. He said there was adequate access to the property in event of an emergency; emergency vehicles have been able to access the private road over time. The request will not injure rights of others. There was no public interest in denying the request. Substantial justice test has to be weighted to the hardship to the applicant, which outweighs any benefit to the public by denying the applicant. There was no economically viable way to use the property if the request was denied, though he could use the property. The project will not diminish value of properties. He referenced a letter from a realtor that said property values would not be diminished. In reference to the hardship criteria he said that the lot is one of record with only.23 acres. The dimension and location of the lot make it hard to develop without relief from the Board. The applicant has made an effort to meet all setbacks except from the lake. He stated that there was no relationship between the ordinance and the created lots. The zoning ordinance encroached upon the development, because there was a need to put the brakes on future development. The use needs to be a reasonable one, which was to create a single family home. Since 2006 there were two other projects granted variances in the area. Mr. Abbott stated that the septic design for the lot has been approved by the state. Mr. Onion said that Ms. Nyren wrote a letter questioning how much of the adjacent town land was being used by the applicant. Mr. Antonopoulos said the land was now surveyed. Mr. Abbott said that what he was hearing from Mr. Durbin was that the applicant s lot was a building lot and then zoning encroached on the rights of the property owner and deprived him of them. Mr. Durbin said yes. Mr. Abbott said his understanding was that there are several higher density areas in town around water bodies. They were mostly done in the 50 s & 60 s to make an inexpensive opportunity for persons not living in town to acquire property and experience the water without saying how they would do it. These areas predated zoning. Some of the water bodies in the southern part of in the state were entirely build out, and the water bodies were destroyed. So the spirit of zoning is to protect the water bodies. Around 1976, the town developed zoning and every year there have been changes. This town has voted and said they don t want the intense building these lake subdivisions would allow. Ms. Nyren s house was built in 1972, before zoning. He believed the ordinance was put in place because of the over development. Every other lot Mr. Durbin mentioned that has been developed on Valley Shore is at least double the size of the applicant s lot. 2 of 11

14 Mr. Durbin said that the town involuntarily merged lots. There was a discussion about unmerging lots. Mr. Abbott said that the possibility of unmerging lots was not relevant to the applicant s lot. Mr. Durbin stated that there was general development along Valley Shore Drive, and the general development pattern was that houses were close to the water. Mr. Jean said the density of Ms. Nyren s lot was more than his lot. He stated that when owners are denied to build on a lot then campers go on those lots. The covenants on the subdivision do not allow campers. There was no problem with the lot flooding. He was given a lot variance from the water setback. Fire trucks have been on the road. He does not want to see campers on lots. He stated that there was a road maintenance agreement. Mr. Onion stated that the ordinance was enacted to prevent the shore from having too much development. Mr. Durbin believed he had met the criteria and Mr. Antonopoulos deserved to make reasonable use of his property. Mr. Onion stated there is no guarantee that one can make money on buying a property. The value of this lot was in protecting the applicant s adjacent property. Mr. Abbott said the case was about just one lot that became non-conforming when the legislative body zoned this area rural because the development scheme was flawed. Mrs. Jean said that when they came before the Board the concern was on the impact to the town. She stated they had done a lot for the town, and that the town would be enhanced because there would be another home to help the Jeans maintains the road. Ms. Hackett stated that a two bedroom home was shown on the application and that would be the maximum number of bedrooms to be built and there will be no steps that will go into the setbacks. Mr. Durbin stated that if approved, the space shown on the plan is all that can be used no more. Mr. Onion moved to close Public Hearing Case # Antonopoulos Realty Trust, owner. Seconded by Mr. Teunessen. Motion passed unanimously. 3 of 11

15 NEW BUSINESS Public Hearing Case Public Hearing Case# Shawn McCarthy owner: requests a variance from Zoning Ordinance Article IV Table 2 and Article VII-3 to increase the non-conformity of the deck by adding steps that are about 50 from the lake. Setback is 75. Property is.18 acres located at 69 Leatherstocking Lane, Map/Lot# 133/45 in the Rural zone. Mr. McCarthy in 2009 applied for a variance to build a deck. He had a DES Shoreland permit. The path to the entry was causing erosion. The path was steep so he wants steps to come out the center of the deck to make less erosion. He contacted the state and was told a new DES Shoreland permit wasn t needed. Grass can grow under the steps. There will be no impact. The neighbors told him they didn t care, the steps protect the lot and there will be less erosion. He said the steps wouldn t change the nature of the neighborhood. He stated that state law says he can build a path to the water even if the path is elevated. Ms. Hackett stated that when the deck application was made she had clearly asked if the applicant was going to have steps, but because of time and erosion the applicant is back. Mr. McCarthy said that the stones near his deck cause people to fall. Ms. Hackett stated that there was a 26% grade. The deck is 52 from the water, and the steps would be 38 from the water according to the drawing submitted. Mr. McCarthy said the steps under the deck would be 6 wide then go down to 4 when they emerge from under the deck. Ms. Hackett asked if there was going to be a problem with not enclosing under the deck. Mr. McCarthy said no. Mr. Teunessen moved to close Public Hearing Case #2014 Case# Shawn McCarthy owner. Seconded by Mr. Abbott. Motion passed unanimously. 4 of 11

16 DELIBERATIVE SESSION: Case# Shawn McCarthy owner Mr. Abbott move to grant a variance in Case # 2014 Shawn McCarthy owner from Zoning Ordinance Article IV Table 2 and Article VII-3 to increase the non-conformity of the deck by adding steps that are about 50 from the lake. Setback is 75. Property is.18 acres located at 69 Leatherstocking Lane, Map/Lot# 133/45 in the Rural zone. a. The granting of the variance would not be contrary to the public interest because it is in support of improving the environmental quality of the area which has been demonstrated to be deteriorating; b. The spirit of the Ordinance is observed because the measure would improve the environmental quality of the area; c. By the granting of the variance substantial justice will be done because less damage will occur to the property and to the lake; d. No diminution of value to the surrounding properties has been shown; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it owing to these special conditions of the property that there are slopes that are subject to erosion when walked on and the applicant if denied would be forced to suffer for the damage to his property and to the environment, i. a fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because granting the variance would improve condition of the environment AND ii. the proposed use is a reasonable one because it improves the safety and environmental conditions of the property. CONDITIONS: Steps will be built according to plans submitted with application. Mr. Teunessen seconded. Motion passed unanimously. 5 of 11

17 Case # Antonopoulos Realty Trust owner There was discussion on the fact that the ordinance has changed to allow building on non-conforming lots if all other issues are met. Ms. Hackett stated that there were three variances being asked for. It was stated that there was a road agreement. There was a lot of discussion on unmerging, but that was not relevant to the case. Any decision would not set a precedent because each case was a separate issue. Mr. Abbott stated that there was alot to go through. Ms. Hackett said that small lots are not normally granted more than one building on a property. This lot does not have 150 of lake frontage. Mr. Onion said he would vote no on a motion to grant a variance to the 150 rule and to the class five road rule. He would vote yes to inside the 75 lake setback. Mr. Teunessen said he would vote to approve. Mr. Abbott was in favor of granting a variance for not being on a class five road and inside the 75 lake setback, but not less than 150 of lake frontage. He stated that there has been an ongoing road maintenance agreement. His condition would be that the Antonopouloses sign that agreement. There is evidence that now the road is maintained. Mr. Teunessen stated that there is no governmental organization that takes care of the roads in Valley Shore. Mr. Abbott asked if the ZBA should consider that the town took the adjacent lot for conservation. All the other lots have 150 feet of lake frontage. This lot is the only one left. MOTION #2: Mr. Abbott moved to grant a variance in Case # Antonopoulos Realty Trust owner from Zoning Ordinance Article IV Table 2 to build a single family dwelling on a nonconforming lot, the house would not be the required 75 from the lake. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. a. The granting of the variance would not be contrary to the public interest because it would create a dwelling that is situated similarly to other houses in the district with respect to its distance to the water; 6 of 11

18 b. The spirit of the Ordinance is observed because a dwelling is created in a way that is consistent with other dwellings in the area with respect to its distance to the water; c. By the granting of the variance, substantial justice will be done because there will not be an unfair situation created as a result of its proximity to the water; d. By granting the variance, there would not be diminution of value to the surrounding properties because the house would be consistent with those surrounding properties with respect to its distance to the water; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it, owning to special conditions of the property which are that the lot was created in an era prior to zoning and insufficient space was provided for the setback from the water i. no fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because its situation to the water is as good as those in the district AND ii. the proposed use is a reasonable one because it fits the use intended for the subdivision. CONDITIONS: 1. The east corner as presented on the plan presented to the Board shall not be less than 51.4 feet from the high water mark of the lake, and the south corner shall not be less than 62.1 feet from the high water mark of the lake. 2. The surveyed plan submitted to the ZBA will be recorded at the Belknap County Registry of Deeds. Mr. Teunessen seconded. Motion passed unanimously. MOTION #3: Mr. Abbott moved to grant a variance in #Case # Antonopoulos Realty Trust owner from Zoning Ordinance Article VII-C to build a single family dwelling on a nonconforming lot, which has no road frontage on a class V road. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. 7 of 11

19 a. The granting of the variance would not be contrary to the public interest because a private road maintenance agreement exists which provides for safe transit on the roads that pass the residential houses; b. The spirit of the Ordinance is observed because the orderly process allows for access and egress of these properties; c. By the granting of the variance, substantial justice will be done because the applicant will not be denied right to a property which had adequate access via a privately maintained road; d. By granting the variance, there would not be diminution of value to the surrounding properties because no such impact is relevant to access via the road; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it, owning to special conditions of the property which are the property was subdivided in a time before zoning and therefore the subdivision and the road were never accepted by the town i. no fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because the creation of this dwelling will not impact the safety or wellbeing of anyone AND ii. the proposed use is a reasonable one because the dwelling is fully accessible year round over a maintained road. CONDITIONS: 1. James & Stella Antonopoulos must execute their agreement in the private road maintenances agreement for Valley Shore Drive as presented in exhibit D Doc# May 11, 2012 Book 2772 Page 0464 Register of Deeds, Belknap County, prior to the issuing of a building permit. 2. The surveyed plan submitted to the ZBA will be recorded at the Belknap County Registry of Deeds. Mr. Teunessen seconded. Vote was 3 in favor 1 opposed. Motion passed. MOTION #1: Mr. Teunessen moved to grant a variance in #Case # Antonopoulos Realty Trust owner; Antonopoulos Realty Trust from Zoning Ordinance Article XV-A, to build a single family dwelling on a non-conforming lot, that does not have the required 150 lake frontage. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. 8 of 11

20 a. The granting of the variance would not be contrary to the public interest because there would be no apparent increase in traffic flow in that part of Shellcamp Lake; b. The spirit of the Ordinance is observed because it would appear to protect water quality in and around the shore of that lot; c. By the granting of the variance, substantial justice will be done because development of the lot will fit the aesthetics of that part of Shellcamp pond; d. By granting the variance, there would not be diminution of value to the surrounding properties in that single family dwellings are clustered in this part of Valley Shore Drive; e. Literal enforcement of the ordinance could result in unnecessary hardship to the property owner seeking it, owing to special conditions of the property which are the size of the lot which would restrict the size of any building placed on it i. a fair & substantial relationship exists between the general public purposes of the ordinance & specific application to this property because owing to its size this parcel is limited in its ability to be developed AND ii. the proposed use is a reasonable one because the building of a single family residence would add to the character of the neighborhood. CONDITIONS: 1. No point of the building, decks, steps, porches, bays, overhangs, or any construction may be closer to the water than 51.4, nor may they encroach into any other setback. 2. There can be no additions to the house of any kind. 3. There can be no additional structures on the lot. 4. Any landscaping will be done to prevent drainage into the lake. 5. The surveyed plan submitted to the ZBA will be recorded at the Belknap County Registry of Deeds. Ms. Hackett seconded. Mr. Abbott read Article 15 of the zoning ordinance and thought that it said 150 of lake frontage was needed or a common area. Mr. Onion said the first lines of the ordinance state the purpose of the 150 is to prevent overcrowding of the shore front in the interests of public safety and preservation of aesthetic values. The lawyer wanted the ZBA to look at just the 5 nearby lots not the rest of the pond. Mr. Abbott said if there was a private waterfront park that all the residences had rights to and it could never be built upon that would be an enormously valuable thing. Mr. Teunessen said that the map he was looking at said lot 1 was Valley Shore 9 of 11

21 Development common area and there was more than 150 of waterfront. Ms. Hackett said there appears to be a common area. Mr. Abbott said the previous two motions do not fundamentally change what has been approved in this area since zoning occurred. This motion does. The town has been consistent with respect to building permits in this district since The ZBA would be changing that by granting this motion. Mr. Teunessen said the precedent has already been set by granting permits on Sawyer Lake. What is the difference between one lake and another? The septic has been approved on this lot. Mr. Abbott said a lot of the houses on Sawyer Lake were built before zoning. If there were a row of non-conforming houses existing it would be hard to deny the next one. That wasn t the case on Valley Shore. There was only one house before zoning or building approvals. The subdivision was never approved by the town. Vote was two in favor and two opposed. Motion does not pass. Ms. Hackett stated that on this case there were 3 different motions. The issue of building with less than 150 of lake frontage has not passed. Two of the three motions have passed. Mr. Onion stated that he hoped the applicant understood that he had to act according to law; it was not personal. APPROVAL OF June 19, 2014 meeting MOTION: Mr. Teunessen moved to approve the minutes of the June 19, 2014 meeting as amended. Seconded by Ms. Hackett. Motion passed 3 in favor, one abstention. ADJOURNMENT: Motion was made by Mr. Teunessen and seconded by Mr. Abbott to adjourn. Vote passed unanimously. Meeting adjourned at 11:05 PM. Respectfully submitted, 10of 11

22 Annette Andreozzi, Land Use Administrator 11of 11

23 Chair Elizabeth Hackett called the meeting to order at 7:08 PM. Members attending: Elizabeth Hackett, Perry Onion, Mike Teunessen, & Nate Abbott. Members not attending: none Also in attendance: Annette Andreozzi, Land Use Administrator Ms. Hackett made introductions and explained the ZBA procedures. She stated that there were only 4 Board members present and the applicants could ask to continue the hearing until there were 5 members. Three positive votes would be needed for any decision to pass. Both applicants said they would continue with 4 members. OLD BUSINESS Continued Public Hearing Case # Antonopoulos Realty Trust, owner; Antonopoulos Realty Trust is requesting a variance from Zoning Ordinance Article XV-A, Article IV Table 2, and Article VII-C to build a single family dwelling on a non-conforming lot, that does not have the required 150 lake frontage, has no road frontage on a class V road, and the house would not be the required 75 from the lake. Property is.23 acres located at 116 Valley Shore Drive, Map/Lot# 131/77, in the Rural zone. Attorney Durbin was representing the Antonopoulos Trust. He said the ZBA was aware of the history of the property, and that Mr. Antonopoulos had a survey of the property done including where the house and septic would be. The closest point the structure would be to the lake was There is a private maintenance agreement for the private road. The lots in the area were created before current zoning. Many of the lots that have been built on have homes inside the 75 setback from the lake. The subject property was abutted by town property, and on the other side by the applicant. Mr. Antonopoulos would like to build a modest home on the lot. Mr. Durbin stated that the primary article that was being dealt with was Article 15 of the zoning ordinance. In addressing the spirit of ordinance he stated there would be no apparent impact to water quality. The property would be left in the natural vegetative state, leaving a buffer between the home and the lake. He stated that not every lot has been developed but the majority have single family homes on them, which speaks to the purpose behind the ordinance that the aesthetic character of neighborhood not be affected. 1 of 11

24 Speaking to public safety, he stated that there are no plans to have a motorized boating operation or a dock. He said there was adequate access to the property in event of an emergency; emergency vehicles have been able to access the private road over time. The request will not injure rights of others. There was no public interest in denying the request. Substantial justice test has to be weighted to the hardship to the applicant, which outweighs any benefit to the public by denying the applicant. There was no economically viable way to use the property if the request was denied, though he could use the property. The project will not diminish value of properties. He referenced a letter from a realtor that said property values would not be diminished. In reference to the hardship criteria he said that the lot is one of record with only.23 acres. The dimension and location of the lot make it hard to develop without relief from the Board. The applicant has made an effort to meet all setbacks except from the lake. He stated that there was no relationship between the ordinance and the created lots. The zoning ordinance encroached upon the development, because there was a need to put the brakes on future development. The use needs to be a reasonable one, which was to create a single family home. Since 2006 there were two other projects granted variances in the area. Mr. Abbott stated that the septic design for the lot has been approved by the state. Mr. Onion said that Ms. Nyren wrote a letter questioning how much of the adjacent town land was being used by the applicant. Mr. Antonopoulos said the land was now surveyed. Mr. Abbott said that what he was hearing from Mr. Durbin was that the applicant s lot was a building lot and then zoning encroached on the rights of the property owner and deprived him of them. Mr. Durbin said yes. Mr. Abbott said his understanding was that there are several higher density areas in town around water bodies. They were mostly done in the 50 s & 60 s to make an inexpensive opportunity for persons not living in town to acquire property and experience the water without saying how they would do it. These areas predated zoning. Some of the water bodies in the southern part of in the state were entirely build out, and the water bodies were destroyed. So the spirit of zoning is to protect the water bodies. Around 1976, the town developed zoning and every year there have been changes. This town has voted and said they don t want the intense building these lake subdivisions would allow. Ms. Nyren s house was built in 1972, before zoning. He believed the ordinance was put in place because of the over development. Every other lot Mr. Durbin mentioned that has been developed on Valley Shore is at least double the size of the applicant s lot. 2 of 11

25 Mr. Durbin said that the town involuntarily merged lots. There was a discussion about unmerging lots. Mr. Abbott said that the possibility of unmerging lots was not relevant to the applicant s lot. Mr. Durbin stated that there was general development along Valley Shore Drive, and the general development pattern was that houses were close to the water. Mr. Jean said the density of Ms. Nyren s lot was more than his lot. He stated that when owners are denied to build on a lot then campers go on those lots. The covenants on the subdivision do not allow campers. There was no problem with the lot flooding. He was given a lot variance from the water setback. Fire trucks have been on the road. He does not want to see campers on lots. He stated that there was a road maintenance agreement. Mr. Onion stated that the ordinance was enacted to prevent the shore from having too much development. Mr. Durbin believed he had met the criteria and Mr. Antonopoulos deserved to make reasonable use of his property. Mr. Onion stated there is no guarantee that one can make money on buying a property. The value of this lot was in protecting the applicant s adjacent property. Mr. Abbott said the case was about just one lot that became non-conforming when the legislative body zoned this area rural because the development scheme was flawed. Mrs. Jean said that when they came before the Board the concern was on the impact to the town. She stated they had done a lot for the town, and that the town would be enhanced because there would be another home to help the Jeans maintains the road. Ms. Hackett stated that a two bedroom home was shown on the application and that would be the maximum number of bedrooms to be built and there will be no steps that will go into the setbacks. Mr. Durbin stated that if approved, the space shown on the plan is all that can be used no more. Mr. Onion moved to close Public Hearing Case # Antonopoulos Realty Trust, owner. Seconded by Mr. Teunessen. Motion passed unanimously. 3 of 11

26 NEW BUSINESS Public Hearing Case Public Hearing Case# Shawn McCarthy owner: requests a variance from Zoning Ordinance Article IV Table 2 and Article VII-3 to increase the non-conformity of the deck by adding steps that are about 50 from the lake. Setback is 75. Property is.18 acres located at 69 Leatherstocking Lane, Map/Lot# 133/45 in the Rural zone. Mr. McCarthy in 2009 applied for a variance to build a deck. He had a DES Shoreland permit. The path to the entry was causing erosion. The path was steep so he wants steps to come out the center of the deck to make less erosion. He contacted the state and was told a new DES Shoreland permit wasn t needed. Grass can grow under the steps. There will be no impact. The neighbors told him they didn t care, the steps protect the lot and there will be less erosion. He said the steps wouldn t change the nature of the neighborhood. He stated that state law says he can build a path to the water even if the path is elevated. Ms. Hackett stated that when the deck application was made she had clearly asked if the applicant was going to have steps, but because of time and erosion the applicant is back. Mr. McCarthy said that the stones near his deck cause people to fall. Ms. Hackett stated that there was a 26% grade. The deck is 52 from the water, and the steps would be 38 from the water according to the drawing submitted. Mr. McCarthy said the steps under the deck would be 6 wide then go down to 4 when they emerge from under the deck. Ms. Hackett asked if there was going to be a problem with not enclosing under the deck. Mr. McCarthy said no. Mr. Teunessen moved to close Public Hearing Case #2014 Case# Shawn McCarthy owner. Seconded by Mr. Abbott. Motion passed unanimously. 4 of 11