Minutes approved at the October 27, 2015 meeting.

Transcription

1 GILFORD ZONING BOARD OF ADJUSTMENT MINUTES AUGUST 25, 2015 CONFERENCE ROOM A 7:00 P.M. The Gilford Zoning Board of Adjustment met on Tuesday, August 25, 2015, at 7:00 p.m. in Conference Room A. Regular Member Andy Howe led the Pledge of Allegiance. A. Howe said that he had been asked by the Chair- Scott Davis to run this meeting. Present members were; Regular members; Bill Knightly, Andy Howe, and Ann Montminy and Alternate member; Paul Ardizzoni. A. Howe asked P. Ardizzoni if he would be a voting member during this meeting, P. Ardizzoni said yes that he had no problem with it. Members absent were Chairman- Scott Davis and Vice Chairman- Stephan Nix. Also present was David Andrade, Code Enforcement Officer and Sandra Hart, Technical Assistant. A. Howe introduced the first application. 1. Becky Mogee Application # Applicant is seeking a Special Exception pursuant to Section 4.5.5, Nursery/Daycare, of Article 4 of the Gilford Zoning Ordinance, to operate a preschool in Unit 2-3 of Building 2 of the Gilford Professional Park located at 401 Gilford Avenue on Tax Map & Lot # & # in the Professional Commercial (PC) Zone and the Aquifer Protection District. Presentation Rusty Bertholet of KRB Realogy Holdings, LLC the owner of the building and the applicant Becky Mogee were present. R. Bertholet stated that they have gone to the Planning Board and received approval to add an 800 sq. ft. play area outside and now they are here for a Special Exception for the permitted use. He explained the current uses in the building and that they have met with the other unit tenants/owners and that they decided that this use would fit will with what s currently there. A. Montminy said that one of the requirements is that there would be undue nuisance or serious hazard to pedestrian or vehicle traffic. She said that she is concerned about the means of egress and is wondering if there is a safety plan in place. B. Mogee explained that they will be painting the walkway, placing red cones out during the times when the children are out and that she will also have a caution children sign. She said that they would typically go out with the children twice a day and that there would be two adults with the children at those times and that they would be holding onto to a rope as well. B. Mogee said that they open in the morning around 7:15am and that the dentist office doesn t open until later and also that they are closed on Fridays. of docx Page 1 of 10

2 B. Knightly was also concerned about the safety of the children. He asked how many children she would have and what would be their ages. B. Mogee said that they can have a maximum of 25 kids, but they will only have 12 to 15 at this time and that they will be from 3-5 years old. A. Montminy asked if you usually supply the town with the rules and regulations when something like this comes up. B. Mogee said that it would have to be posted in the center and also the fire inspection as well and she can certainly make copies and send those in to the board. General rules for a Special Exception were added by submission. (a) A denial was issued by a Town official on matters under their jurisdiction on (date) August 18, 2015 (b) The site is appropriate for the proposed use or structure because: It will not change outside of building or the structure of the inside of the building. Preschool program will fit in the neighborhood. (c) The proposal in not detrimental or injurious to the neighborhood because: It fits into the professional neighborhood of the buildings. Unit 1 has child psychologists, social works and Unit 2 has dentists on upper level. (d) There will not be undue nuisance or serious hazard to pedestrian or vehicular traffic because: There is only drop off in the mornings and pickups in afternoon, early evenings. Parking lot is pretty quiet during days. There are no weekend uses (unless factually meetings) (e) Adequate and appropriate facilities and utilities will be provided to insure the proper operation of the proposed use or structure, as follows. Proper use of facilities & utilities are written in lease agreement provided by the landlord. There aer no added on facilities to structure of building. A playground will be added to the side of the building but will be approved by the Planning Board before installed. (f) The proposal is consistent with the spirit of the zoning ordinance and the Master Plan because: It meets the requirements for institutional use of a commercial building. A. Howe asked if there were any further questions from the board. Hearing none he went onto the public portion. Public A. Howe asked if there were any other members of the public that wished to speak. Hearing none he closed the public hearing portion of this application. A. Howe introduced the second application. 2. David B. Fite, Jr., Trustee of the David B. Fite, Jr Revocable Trust Application # Applicant proposes to demolish the existing residential structure and construct a new residential structure with a wrap-around deck. The footprint of the new structure will be slightly smaller than the existing. A Variance is requested from Article 5, Section for the side setbacks on both sides of the proposed house. The proposed side setback is 7.49 of docx Page 2 of 10

3 feet from the easterly property line where the existing setback is feet. The proposed side setback from the westerly property line is 2.79 feet where the existing setback is 4.18 feet. The minimum side setback required is 25 feet on both sides of the house. This property is located at 74 Belknap Point Road on Tax Map & Lot # in the Single Family Residential (SFR) Zone. A. Howe stated that on occasion Patrick Wood has represented him and that he has had no contact with him with regard to this application and that he has no monitory gain. He asked if there were any objections from anyone about him staying on for this application. Hearing no objections A. Howe stayed on for the hearing. Presentation Patrick Wood of Patrick Wood Law Office, PLLC represented David Fite, and stated that Mr. Fite was present as well. P. Wood went over the packet page by page for everyone and also went over the proposed improvements plan, so that the board could understand the changes. P. Wood said that the new house will be slightly smaller than the existing house and they have a proposal to add a deck on the front and the easterly side of the house. There will also be steps coming down on the easterly side toward the street and steps heading down toward the lake. The next page in the packet shows the subdivision plan that was recorded in the 1920 s era and he went over that for everyone. P. Wood explained that the existing structure would be moved to a location that will be more conforming and the only thing that would be encroaching is the deck and the stairs. He went over the Tax Map and the Ariel Photo which shows how close the properties are, one of the advantages of moving the house closer to the Lake is that it removes the congestion on the street side. The neighbor will still have an unobstructed view as seen in one of the photos submitted. They also submitted two letters from abutters in support of the project and a third letter was submitted at the meeting from Terry and Carolyn Pratt.. A. Howe asked the distance from the proposed deck to the property line and P. Wood replied that it is about 13. P. Wood then read the facts supporting the request for a variance: 1. Granting the variance would not be contrary to the public interest because: The proposed variance does not conflict with the purposes and intents of the Gilford Zoning Ordinance to provide and preserve adequate areas between building and various rights-of-way. The proposed residential structure will not be substantially closer to the existing structure on the lot to the east and the area between the proposed house and the existing structure on the lot to the west will not be materially diminished. Currently, the structures on the property, which have been on the property for over 80 years, are clustered near the street. The proposal is to move the structure approximately 25 feet closer to the lake which will provide greater space between the house and the garage on the Applicant s property and also between the house and the garage on the neighbor s property that partially encroaches on the Applicant s property. of docx Page 3 of 10

4 The proposed structure would promote good civic design by providing for less congestion next to and on the private way to the property and potentially on Belknap Point road. It would also be less visible from the public way. It would also be within the character of the neighborhood. The proposed variance would not be contrary to the public interest. 2. The Spirit of the Ordinance is observed because: The proposed variance does not conflict with the purposes and intents of the District and does not violate the basic objectives of the Gilford Zoning Ordinance. There would be no alteration of the basic and essential character of the neighborhood by the granting of the variance. The property to the east of the Applicant s property has been rebuilt and the proposed construction will be similar in size to the rebuilt structure on the property. The property to the east of the Applicant s property obtained a variance in November 1991 for a deck that was within the side setbacks. The proposed structure will be somewhat closer to the Lake than the house on the abutting property to the east but substantially farther from the Lake than the house on the abutting property to the west. The proposed new house will have a deck facing the lake that wraps around the sides of the house just as the decks on the neighboring houses. It will also have a walk out basement similar to the neighboring houses. The design of the house will be similar to the houses in the neighborhood. The Gilford Zoning Ordinance, Section (a), allows nonconforming structures to be rebuilt provided the area of the rebuilt structure does not exceed the dimensional size of the original building footprint. The square footage of the footprint of the existing building is 1511; the square footage of the proposed building is 1,500. Section (b) requires the rebuilt structure to be located to the greatest extent possible in a manner to meet the various setback requirements. The proposed structure will be repositioned to farter from the property side lines than the existing structure and would be less nonconforming. The only parts of the new construction that will be closer to the property lines are part of the deck on the easterly side of the Property and part of the stairs from the deck to the ground on westerly side of the Property. One of the purposes of the Gilford Zoning Ordinance is to secure safety from fires, panic, and other dangers. The proposed relocation of his residential structure will provide greater distance between the buildings on the Applicant s property and between the buildings on the Applicant s property and the buildings on neighboring properties. This additional distance provides a safer situation because the buildings will be farther apart and this will lessen the likelihood of a fire in one building leaping to a nearby building. It will also provide more room for fire fighters and other fire responders to maneuver in the event of a fire or other danger. In addition, the proposed 4-foot wide deck with stairs on the easterly side of the proposed new structure will provide a additional means of egr3ss from the building in the event of a fire or other dangerous situation. The stairs on the northwesterly side of the deck provide a similar safety benefit. The proposed variance would be consistent with the spirit of the ordinance. 3. Substantial Justice is done because: Considering the unique qualities of this lot its width, its topography, and the proximity or the existing buildings to each other and to neighboring building and structures the purpose and intent of the Gilford Zoning Ordinance to provide and preserve adequate areas between buildings and various rights-of-way and to encourage an appropriate use of land would be better met by granting the Applicant s requested variances. As noted above, by mobbing the principal structure away from the roadway, the areas between buildings and the right-of-way will expand substantially. The 4-foot wide deck on the easterly side of the building serves as an alternate means of egress form the building; of docx Page 4 of 10

5 eliminating that deck would require the construction of a major set of stars that would probably be even closer to the property line in order to be safe. In addition, the stairs on the front of the deck head down toward the Lake and away from the structure and thus provide an additional means of egress form the building. What benefit would there be to the public that would outweigh the additional safety risk on the Applicant by providing additional means of egress from the structure? The neighborhood and community would benefit from the relocation of the principal structure that will increase the areas between existing structures and the right-of-way. Denying the Applicant the ability to provide safe means of egress to the relocated residential structure is not a reasonable trade-off for the substantial benefit the community and the neighborhood will receive by the relocated residential structure. Substantial justice would be accomplished by the granting of the variance. 4. The values of surrounding properties will not be diminished because: The relocation of the residential structure on the Applicant s property will provide a safer configuration of the buildings on the Applicant s property and between those buildings and building of neighboring properties. In addition, it will lessen the congestion at the entrance to the Applicant s property which will diminish the impact on the right-of-way and the neighboring properties. These improvements will improve he accessibility to the neighboring properties by first responders which should improve the value of those neighboring properties. The residential structure proposed to be built and its location will be in keeping with the overall appearance of the neighborhood and, as a new and much more valuable structure than the existing residential structure, will most likely enhance the values of the surrounding properties. 5. Literal enforcement of provisions of the ordinance would result in an unnecessary hardship because: (A) For purpose of this subparagraph, unnecessary hardship means that, owing to special conditions of the property that distinguish it from other properties in the area:. The proposal is to remove the existing single-family residential structure and construct a new singlefamily residential structure further away from Belknap Point Road. The Applicant s property is 50 feet wide on the Belknap Point Road side and about 68 feet wide at the Lake. The part of the lot that would be available for construction that would meet all the setback requirements is at best 13 or 14 feet wide; but it narrows quickly as one approaches Belknap Point Road. The existing structure, which was built decades before the Zoning Ordinance was adopted, is well within the side setbacks. The proposed new residential structure will be less nonconforming than the existing structure. The only areas that will be closer to the property lines are part of the deck on the easterly side of the property and part of the stairs leading from the deck to the ground on the northwesterly side of the deck. The proposed 4-foot wide deck on the easterly side of the proposed residential structure provides an additional means of egress from the building, which is an important safety feature. Denying the variance for a small part of that deck would mean that an alternative means of egress form that side of the residential structure would be needed. A large stairway on the easterly side of the proposed structure would most likely be as close to the property line as the proposed 4-foot wide deck. The proposed residential structure has a small footprint than the existing residential structure. Moving that structure farther away from the Belknap Point Road improves the overall access to the Applicant s property and improves the safety of the Applicant s property and the neighbors properties. If the lot were even a few feet wider, there would not be a need for the variance but in the early 1900 s 50-foot wide lots were not unusual. However, today, such narrow lots create substantial issues relating to accessibility and safety. of docx Page 5 of 10

6 One way to perhaps eliminate the need for the requested variances would be to locate the new house closer to the Lake. While this would certainly be possible from a construction perspective, such a location would have a greater and perhaps negative impact on the property to the east of the Applicant s property. The Applicant has tried to find a location for the new residential structure within the confined of the very small lot that would provide a better and safer situation for the Applicant and would not unreasonably interfere with the neighbor to the east. This is an interesting lot not necessarily unique in light of the history of the Belknap Point area. However, the hardships that would exist by trying to locate the proposed addition in some place on the lot other than in the area as proposed are very real and very substantial. (i) No fair and substantial relationship exists between the general purposes of the ordinance provision and specific application of that provision to the property. The Zoning Ordinance was adopted, in part to promote good civic design and the appropriate use of land in order to turn difficult terrain into an advantage. to provide and preserve adequate areas between buildings and various rights-of-way, and to secure safety form fires, panic, and other dangers. Removing the existing residential and relocating the residential structure where proposed will be a better use of Applicant s property, will increase areas between buildings and the right-of-way, and help secure the property and its inhabitants from fire and other dangers. The requested variances will help provide additional means of egress from the building. The difficult terrain of the property would require these additional means of egress to be constructed in manners that would probably still require additional encroachments into the setback areas and would most likely not be as safe and secure as the proposed construction. The Applicant s proposal is designed to do exactly what the Zoning Ordinance promote good design to use the Applicant s property in a safe and appropriate manner and to do so in a way that improves overall safety and does not disturb the neighborhood or the neighbors. (ii) The proposed us is a reasonable use. The removal of the existing residential structure and its relocation to a safer and more accessible location is not only reasonable but it is in keeping with the purposes and intent of the Gilford Zoning Ordinance. The 4-foot wide deck on the easterly side of the proposed residential structure is wide enough to provide a safe and adequate means of egress from the building with the least amount of impact on the neighboring property. Similarly, the stairs at the northwest section of the deck are a safe and reasonable means of providing egress from the residential structure. The residential structure is otherwise located in a position that is less nonconforming that the existing structure. The proposed use is reasonable and safe. OR (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 if therefore necessary to enable a reasonable use of it. The Applicant believes the criteria in subparagraph (A) are established. Nevertheless, this particular property presents some very difficult conditions. of docx Page 6 of 10

7 Locating the residential structure where proposed reduces the nonconformities of the existing structure and substantially improves the safety and accessibility to the residential structure on the Applicant s property. The slight variances requested are primarily to permit the structure to have additional safe means of egress that otherwise might not be easily available. Obviously, because of the narrowness of the lot, strict conformity with the side setback requirements would not be possible. While the Applicant could move the proposed residential structure closer to the Lake which would most likely eliminate the need for the requested variances, such a location would interfere with the view of the Lake enjoyed by the neighbor to the east. Since there is no way to meet the requirements of the setbacks, the Applicant has tried to located the new residential structure in a manner that substantially meets the purposes and intents of the Gilford Zoning Ordinance and causes the lest disturbance to this neighbor. The variances for the minor encroachments into the side setbacks for the additional means of egress are reasonable alternatives. The proposed variances are necessary for the reasonable safety of the new residential structure. A. Howe asked about the existing garage and if that would be staying in the same location. P. Wood stated that there is no plan to move the garage at this time. P. Wood said that many years ago the applicants did come in for a variance to move those garages, but they were denied. A. Howe thought that it would be possible at this time to bring them into compliance. P. Wood didn t want to play with that again right now. P. Wood said that the neighbor Mr. Pratt requested a variance in 1991, which was approved and he explained the variance for everyone. P. Wood said that what we are asking for here is a variance for the stairs and the deck based on the plan and the intent is to do it as approved here the best we can. A. Howe asked D. Andrade about the permitting process. D. Andrade stated that they would require a surveyor to go out and set the pins, locate the house and then after the forms are dug they verify where the forms and the footings are. A. Howe said, so it would have to be checked and rechecked. A. Montminy asked how often D. Andrade would go out to the site to check on it. D. Andrade replied that he would check on what the surveyor submits, once the footings are in then it would be an exact location to the pins. He said that it would be a smart move to have it checked when the footings are in and not wait until after that. A. Howe said that they have had Applicants come back to us in the past and that they have asked for very expensive corrections to be made. B. Knightly asked if they have been to the state yet. P. Wood said that they will be going, but have not gone yet. P. Ardizzoni said that if you go out to measure and its 83 feet what would happen then. D. Andrade replied that they would have to come back before this board. P. Ardizzoni said that it would be normal procedure if that were to happen to any property. Yes, that is correct replied D. Andrade. A. Howe said that the motion could include and require that the survey pins be set and to locate where in fact the plan says the house is to be built. A. Howe asked if there were any further questions for the applicant. of docx Page 7 of 10

8 A. Howe then asked if there were any members of the public that wished to speak. Public Terry Pratt of 78 Belknap Point Road said that David Fite has done a really good job with this request, given the fact that they could go 50 from the water. Mr. Fite has been thinking of the neighbors in keeping the house as far back as he can and also with the proposed size of the home. His worry is about the future as much as it is now his concern is that the home you re giving the variance for is a home that is located 96 feet from the water that the deck is 80 feet from the water and he would want it to be kept that way. He is happy and supportive of what they have done with the proposal. His concern would be that they will always be able to look to the left and see the water. A. Howe thanked Terry Pratt. A. Howe said that the board could refer to the plan for this approval. So, that there are protections in place for the town to have the opportunity to look at it again. A. Howe asked if there were any other members of the public that wished to speak. Hearing none he closed the public portion of the application DELIBERATIONS Becky Mogee Application # A. Howe asked if there was any discussion on the application. B. Knightly said that his only concern would be for the safety of the children and he just doesn t want to hear about that in the future. B. Knightly stated that right now the children s ages are 3-5, but he thinks that it could change. B. Mogee said that children s safety was also a concern of the Planning Boards, but that she felt that there would always be those concerns. B. Mogee said that she has met with the Fire Inspector, Code Enforcement Officer, the Police Chief and those concerns were all answered as far as the safety of the children. She said that the state will also have to approve it as well. R. Bertholet stated that there isn t a lot of traffic that goes through there. B. Mogee said that she has looked at other preschools and according to the state, the playground has to be a certain mileage away from the site, you are allowed to be an 1/8 th of a mile away. The kids will always be out there with adults. A. Howe asked about any type of solid barriers. R. Bertholet said that they discussed fencing, but then you get into plowing issues and nothing really made any since. A. Howe asked about a temporary barrier. R. Bertholet said that they would be adding cones and caution children signs. B. Mogee said that she understands what their concerns are and she suggested that she send an adult out to see if there are several cars out in the parking area and maybe they could just go out at a later time with the kids. She said that she has been doing this for a really long time and has worked with this age group for 19 years. B. Knightly replied that, you do have excellent qualifications. of docx Page 8 of 10

9 R. Berthelot said that if she does have any problems that the state will close her down. A. Montminy said that the cones can be moved, but maybe they could have something more permanent. She suggested that maybe B. Mogee could submit to the board a written policy as to what will occur. B. Mogee said that yes she can get the board a copy of that once she gets the approval. P. Ardizzoni said that he was okay with the proposal, so he had no problem with this as well. Motion made by B. Knightly, seconded by P. Ardizzoni to grant the Special Exception to Becky Mogee, Application # B. Knightly read Article 11. Section 11.2 of the Zoning Ordinance stating that the following requirements have been met: a) A letter of denial was issued for the requested special exception; b) The site is appropriate for the proposed use or structure; c) The proposal is not detrimental or injurious to the neighborhood; d) There will not be undue nuisance or serious hazard to pedestrian or vehicular traffic; e) Adequate and appropriate facilities and utilities will be provided to insure the proper operation of the proposed use or structure; and f) The proposal is consistent with the spirit of this riddance and the Master Plan. Condition: Subject to the applicant getting approval from the State and the Fire Department. A. Howe asked if there was any discussion on the motion, hearing none he requested a vote. The members were polled. Paul - yes Ann - yes Bill - yes Andy yes Motion carried with all in favor. David B. Fite, Jr., Trustee of the David B. Fite, Jr Revocable Trust Application # A. Howe asked if there was any discussion on the application. B. Knightly asked about the Shoreland Permit and if they had received one yet, because he thinks the Lake is a jewel and it should be protected and he wants to make sure that it is preserved. P. Wood said that they don t have that permit yet, but that they would be applying for that once they get this approval. He stated the Fite family feels that same way about the Lake. A. Howe said that we get so many applications that come in for the biggest gigantic place you can fit and they haven t done that with this proposal at all. They have kept the proposal in keeping with the neighborhood. He is very familiar with that area and it is a nice area. He thought that they have done a commendable job with this proposal. A. Howe said that in the past we have approved applications based on the plan. Also, we could go with D. Andrade s suggestion and require that the pins be set and that certain inspections have to be done. of docx Page 9 of 10

10 A. Montminy said that it is very reasonable use of the land and the owners have gone through a great deal to try and make sure that the neighbors concerns were addressed. Motion Motion made by A. Montminy, seconded by B. Knightly, to approve the Application # variance request for David Fite Jr. Trustee of the David B. Fite Jr Revocable Trust from Article 5. Section for the side setbacks of the proposed house. The construction shall be done according to the plans submitted to the board. A. Montminy read Article 12. Section 12.1 Specific Requirements stating that the following has been met: a) The proposed use will not diminish surrounding property values. b) Granting the variance will be in the public interest. c) The use will not be contrary to the spirit of the ordinance. d) By granting the variance substantial justice will be done. e) Denial of a variance would result in unnecessary hardship to the owner. Conditional upon the survey pins being set and that the buildings inspector would monitor the correct placement of the pins. D. Andrade suggested that A. Montminy add that a New Hampshire licensed surveyor would need to verify the location of the structure after the foundation footings are poured. A. Montminy agreed to that. A. Howe asked if there was any further discussion on the motion, hearing none the members were polled. the member. Paul - yes Ann - yes Bill - yes Andy- yes Motion carried with all in favor. MINUTES June 23, 2015 Motion made by B. Knightly, seconded by P. Ardizzoni to approve the minutes as amended of June 23, Motion carried with all in favor. ADJOURNMENT Motion made by B. Knightly, seconded by A. Montminy to adjourn the Zoning Board of Adjustment meeting of August 25, 2015 at 8:16 p.m. Motion carried with all in favor. Respectfully submitted, of docx Page 10 of 10

11 Sandra Hart, Secretary of docx Page 11 of 11