BOARD OF ADJUSTMENT Wednesday, August 6, :30 p.m. Rye Town Hall

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1 BOARD OF ADJUSTMENT Wednesday, August 6, :30 p.m. Rye Town Hall Present: Chairman Ray Jarvis, Vice-Chair Paul Goldman, Burt Dibble, Shawn Crapo, Patricia Weathersby and Gregg Mikolaities. I. Call to Order Chairman Jarvis called the meeting to order at 6:30 p.m. and led the Pledge of Allegiance. II. Review and approval of July 2, 2014 and July 23, 2014 minutes Note: Shawn Crapo was not seated for the approval of the minutes. July 2, 2014: The following corrections were noted: Page 21, 5 th line down should read: Member Hoyt asked how many pieces of equipment are stored in Danbury. Page 25, 4 th line down should read: He continued that it looks like there is business equipment that is moving on and off this property. Page 25, after the motion and vote it should read: Attorney Donovan advised that this motion did not reflect the standard which the Board should be using on this appeal. Page 18, 4 th paragraph, last sentence should read: If it also includes the movement, logistics and operations of equipment that is something different. Page 21, 11 th paragraph, last sentence should read: Is the equipment actually for the business not being stored in Danbury but at 3 Love Lane? Page 24, 4 th paragraph, last sentence should read: If it were clearer to him that once the projects were done the equipment would be gone that would be different than having it being stored there and being used in other places. Motion by Paul Goldman to approve the minutes of July 2, 2014 as amended. Seconded by Patricia Weathersby. Vote: 4-0. Abstain: Gregg Mikolaities (as he was not present at the meeting.) 1

2 July 23, 2014 Motion by Burt Dibble to approve the minutes of July 23, 2014 as presented. Seconded by Gregg Mikolaities. Vote: 3-0. Abstain: Patricia Weathersby and Paul Goldman (as they were not present at the meeting.) III. Applications: Note: Shawn Crapo was not seated for the following two applications. Seated for applications 1 and 2: Ray Jarvis, Paul Goldman, Burt Dibble, Patricia Weathersby and Gregg Mikolaities. 1. Mary Dirago and Barry J. Tishbert for property owned by Blackberry Nominee Trust, Mary Ellen Dirago Trustee at 3 Love Lane, Tax Map 4, Lot 42-1 request an Administrative Appeal per Section of the Zoning Ordinance to the Building Inspector s letter dated May 12, 2014 which states the applicants are operating a construction company from the residence and are in violation of Section (C), home occupations. Property is in the Single Family District. Case # Public hearing closed. Board discussion of Notice of Decision. 2. Mary Dirago and Barry J. Tishbert for property owned by Blackberry Nominee Trust, Mary Ellen Dirago Trustee of 3 Love Lane, Tax Map 4, Lot 42-1 request a Variance to Section (C) to allow for a construction business as a home operation. Property is in the Single Family District. Case # Public hearing is closed. Board discussion of Notice of Decision. Chairman Jarvis explained that at the July 2, 2014 meeting there was a motion as follows; Motion by Patricia Weathersby to deny on a preliminary basis the Administrative Appeal field by Mary Dirago and Barry Tishbert for the property at 3 Love Lane appeal being of the Building Inspector s Notice of Violation, dated May 12, 2014, and the application be continued to the August meeting where there will be a final decision to allow Town Counsel time to prepare a draft decision which the Board will vote upon. Seconded by Burt Dibble. All in favor. Chairman Jarvis further explained that Charles Hoyt is not present at the meeting this evening. That presents the Board with a problem. The problem is that the Board does not have the same five people present that sat for that case. There are several options. 1. The applicants can give their consent to have four members that were there and are present tonight vote on approving the Notice of Decision. 2. A five person Board could vote with only four of the members being at the July 2 nd meeting. 3. Continue the application until next month. Chairman Jarvis continued that he spoke to Town Counsel about this and he felt that the preferable course of action would be to continue this until next month when the original five member board is present. Vice-Chair Goldman stated that the Board is probably empowered to exercise option 2; however, the applicants are not present. 2

3 Chairman Jarvis commented that he has given the Board Attorney Donovan s opinion. He pointed out that this is also how he feels. He feels that they often run into difficulty as to which way these matters should go. The preference is for the cleaner course of action. He reiterated that the Town Attorney felt the same five people should sit and it should be a five member Board. Vice-Chair Goldman stated that if Town Counsel feels that way that is what they ought to do. Member Weathersby commented that she is sure that Member Mikolaities has read the minutes and is prepared; however, it would be ideal to have the same five member board. She would be in favor of moving this to one more meeting. Member Dibble stated that where they have chosen in the past to use a board with less in members it has been with the approval of the applicant. He would not want to change that tradition. He thinks this speaks to the cleanliness of the process. He continued that if this case requires further attention at Superior Court, or some other way, Attorney Donovan would be representing the case. He would be inclined to honor his view of the procedure for that point. Vice-Chair Goldman agreed. Motion by Patricia Weathersby to continue application number 1 and 2, with the same set of facts, as it appears that the applicant is not present and the same five members are not present to vote on the decision, to the September 3 rd Board of Adjustment meeting so a final decision can be rendered. Seconded by Paul Goldman. All in favor. Note: Shawn Crapo was seated for the following applications and Gregg Mikolaities was unseated. Seated: Ray Jarvis, Paul Goldman, Shawn Crapo, Patricia Weathersby and Burt Dibble. 3. Frank and Josephine Catalino for property owned and located at 5 Grove Road, Tax Map 7, Lot 79 request a Special Exception to Section 506 for an accessory apartment and a Variance to Section 506.3A to have an accessory apartment greater than 1200sq ft. Property is in the Single Residence District. Case # Josephine Catalino, applicant, spoke to the Board. She explained that they would like to have an accessory apartment at their house. She believes they meet all the requirement standards. She explained that the first floor of the house is 1200sq. ft. She asked if she should deal with the variance and the accessory apartment at the same time. Member Weathersby stated that they cannot grant the apartment until they grant the variance. They have to deal with the square footage first. Mrs. Catalino stated that she agrees that the first floor meets the standard for the accessory apartment in terms of the square footage. They are asking for a variance for the person to use the second floor. She reiterated that the first floor is 1200sq. ft. She noted that the person who wants to live in the apartment is a single mother with a two year old daughter. She also noted that the two additional off-street parking spaces are shown on the plan. She continued that her and her husband will continue to live on the premises. She pointed out that they have the approval from NH DES for the waste disposal system. They also have approval from the fire and water department. 3

4 Mrs. Catalino explained that she would need a variance because the house is two stories. The first floor is 1200sq. ft. However, it would only make sense to use both floors for the accessory apartment. Chairman Jarvis asked if the second floor is the same size as the first floor. Mrs. Catalino confirmed. Chairman Jarvis commented that this would be a 2400sq. ft accessory apartment. A variance would be needed to go beyond 1200sq. ft. Mrs. Catalino confirmed. Member Weathersby stated that if they approve the Special Exception for the accessory apartment it would be for 1200sq. ft. They would not have approval for 2400sq. ft. She pointed out that they also do not have a full bath on the first floor. It is just a three quarter bath. The full bath is on the second floor. It would not technically meet the requirements. She thinks they need to do the variance first and then deal with the apartment. Chairman Jarvis stated that they should deal with the variance for 2400sq. ft. This is in the Single Residence District. Member Dibble asked if this is being used an accessory apartment now. Mrs. Catalino explained that the person is living with them now; however, she wanted her to have her own kitchen. Chairman Jarvis stated that they need to discuss doubling the amount of square footage, which is in the ordinance as the maximum size for an accessory apartment. Member Weathersby asked how big the rest of the building is. Mrs. Catalino replied that the whole house is 5252sq. ft. The front house has 2400sq. ft and there is 2600sq. ft in the back. Member Dibble stated that Section 506 clearly states that someone can add on to their house and put in an accessory apartment. In that case, he does not feel they should go beyond the 1200sq. ft. In this case, the square footage already exists and there is no change to the appearance of the structure. It seems to him that it would impose some hardship on the applicant to not allow the 2400 sq. ft. Vice-Chair Goldman stated that there is no previous Special Exception for an accessory apartment that has been granted for this property. The apartment does not exist right now. He asked why they cannot go through the process of Special Exception knowing that there is a 1200 limit. The applicant is here to apply for a variance to follow on to that. The Special Exception sets the use and the variance meets the total size. Member Weathersby explained that the applicants do not meet the bath requirement. The full bath is on the second floor. She continued that they clearly want to have the whole house. Member Crapo stated that the accessory structure shall be constructed and maintained in such a manner that retains the appearance and character of the structure and the site as a single family dwelling. He pointed out that the applicants are not moving any exterior walls. It is a 5200sq. ft structure. They are 4

5 just shuffling stuff inside to make the accessory apartment. The owner is still going to be on the premises. It s not being turned into two houses necessarily. Member Weathersby stated that this is an alternative. It could be converted to a two family home. She would rather see an accessory apartment where the owner stays on the premises. Chairman Jarvis stated that he is not in favor of doubling the largest size that an accessory apartment should be. He is not convinced of the need for going from 1200 to 2400sq. ft. If the bathroom needs to be expanded to a full bathroom that is fine. All through Town there are accessory apartments of 800, 900 to 1200sq. ft and they do fine. To go 2400 because no one will know from the street is a rationale that is unconvincing. Mrs. Catalino explained that the tenant is a single mother and she could live on the bottom floor; however, that is not the issue. The issue is leaving a second floor vacant. That is not even good for the house. The house will get dilapidated because no one is up there. Member Dibble asked if there is access to the second floor from the rear unit. Mrs. Catalino replied no. It is totally separate and the only thing that connects it with the rear is the L- shape entryway. Member Weathersby stated that this is in the Single Residence District. In that district two family homes are not allowed. This is very much looking like a two family home, except for the fact that the owner resides on the premises. She thinks this property is very unique. It is configured presently as two units now and it is not all being used. To say the second floor cannot be used seems a little rigid. Member Goldman stated that every situation is unique. Each one should be viewed and evaluated on its own merits. In general, he agrees with Chairman Jarvis. However, in this case, he agrees with what Member Weathersby is saying and tends to lean that way. A lot of the cases that the Board deals with in terms of accessory apartments are being constructed and the exterior is being affected. This is not doing that. Chairman Jarvis opened to the public for comments or questions. Hearing none, he closed the public hearing at 7:17 p.m. Chairman Jarvis called for a vote on the variance requested; 1. The variances are not contrary to the public interest? Ray Jarvis - No 5

6 2. The Spirit of the Ordinance is observed? Ray Jarvis - No 3. Substantial justice is done? Ray Jarvis - No 4. The values of surrounding properties are not diminished? Ray Jarvis - No 5. Are there special conditions of the property that distinguish it from other properties in the area? 6. There is no fair and substantial relationship between the general public purposes of the ordinance provisions and the specific application of those provisions to the property? Ray Jarvis - No 6

7 7. The proposed use is a reasonable one? Ray Jarvis - No 8. Therefore, literal enforcement of the ordinance would result in unnecessary hardship? Ray Jarvis - No Motion by Patricia Weathersby to approve the variance requested by Frank and Josephine Catalino for property owned and located at 5 Grove Road being the variance to Section 506.3A to have an accessory apartment greater than 1200 square feet, being approximately 2400 square feet, as presented and conditioned upon the granting by this Board, at this meeting, for a Special Exception for an accessory apartment. Seconded by Burt Dibble. Vote: 4-1. Opposed: Ray Jarvis Motion passed. In regards to the Special Exception, Chairman Jarvis stated that there are three questions that have to be decided to determine if it can be legally granted. Is the use one that is ordinarily prohibited in the district? Yes Is the use specifically allowed as a Special Exception under the terms of the ordinance? Yes Are the terms specified in the ordinance for granting the exception met in the particular case? With the variance the answer is yes. Chairman Jarvis asked the Board: Is it injurious or detrimental to the neighborhood? Burt Dibble No Patricia Weathersby No Paul Goldman No Shawn Crapo No Ray Jarvis No Is it in harmony with the general purpose and intent of the Zoning Ordinance and is it in accordance with the general specific rules contained therein? Ray Jarvis No 7

8 Motion by Patricia Weathersby to grant the Special Exception to Frank and Josephine Catalino for property owned and located at 5 Grove Road for an accessory apartment as presented. Seconded by Shawn Crapo. Vote: 4-1. Opposed: Ray Jarvis Motion passed. 4. Arbor Road Trust, Rita Cunningham & Lynn Herron, Trustee of 16 Arbor Road, North Chelmsford, MA for property owned and located at 23 Locke Road, Tax Map 8, Lot 73 request a Variance to Section 210.3G for a two lot subdivision such that each lot will have lot frontage of 109 whereas 150 is required. Property is in the Business and Coastal Area Overlay Districts. Case # Attorney Tim Phoenix, representing the Applicants, presented to the Board. He stated that this is the Rye Beach Hotel and Cottages. The Herron Family has owned and operated the business for about four decades. It s on a 3.7 acre lot with 218ft of frontage. He pointed out that attached to the submission is a brochure that Tate & Foss has put together to show the hotel and cottages. The site is backed by the marsh and is on Locke Road. He continued that it is in the business zone and the rest of the area is residential. He turned the meeting over the Corey Colwell. Corey Colwell, MSC Engineering, stated that the entire property is 3.71 acres in size. It is zoned business and located on the east side of Locke Road. The site is located about a ¼ mile south of Locke Road and Ocean Boulevard. Currently, there are 17 seasonal units on site. There are 7 in the motel, 3 in the caretaker s house and 7 cabins. He pointed out that there is one additional unit which is not for rent. This is the manager s home. He continued that the property is primarily open in the front with a lot of mature vegetation. In the back there are two pockets of poorly drained soils; freshwater wetlands. Separating the two pockets of wetlands is a little area of upland. They believe that this area was filled years ago. It provides pedestrian access from these units to an open area in the back where there are views of the marsh and the ocean. He stated that several years ago, they appeared before the Planning Board with a conceptual layout showing approximately 14 townhouse units. The abutters came to that meeting and expressed concerns. The Board also had concerns. They felt it was too intensive. As a result, that plan was dropped. It was drastically eliminated from 14 down to 2. The proposal now is to subdivide the current lot into 2 and the purpose would be for 1 single family residential home on each lot. He explained that the zoning dimension chart that he submitted to the Board shows the dimensions of the lot as it stands today and how those dimensions would be improved for proposed lot 1 and lot 2. Essentially, everything is improved with the exception of frontage and area. By subdividing it the area is cut in half. He pointed out that the requirement for minimum depth is 150ft. The existing is 564ft. Lot 1 would remain the same but lot 2 would increase to 635ft. The requirement in the zone for the setback is 30ft. The closest existing structure is 55ft. That would be improved to 151ft for lot 1 and 194ft for lot 2. The side yard setback requirement is 20ft. There is currently a structure that is within 9ft. That noncomplying structure would be eliminated and the side yard setback would be increased to 30ft for the two new buildings. The rear setback requirement is 30ft. The existing for the entire lot is 293ft. That would be improved to 342ft for lot 1 and 374ft for lot 2. He continued that the maximum building coverage is 15%. The existing is 4.2% and that would be reduced to 3.9% for lot 1 and 3.4% for lot 2. He thinks the most significant importance is the reduction in the maximum impervious surface area coverage. The zone requirement is 30%. Currently, the coverage is 11%; however, that will be reduced to 7.9% for lot 1 and 7.3% for lot 2. 8

9 Mr. Colwell stated that earlier in the spring they met with the abutters on site. All the abutters supported this plan and felt it was a significant improvement to the neighborhood after having expressed their opinion about the old plan with the 14 townhomes. He thinks they felt the biggest improvement was the elimination of a transient facility, non-compliant and outdated structures. New modern state-of-the art structures will be built that will uphold the aesthetic qualities of the neighborhood. He continued that as far as they can tell the existing structures were built in the late 40 s. They are not in a state of disrepair and can function as units; however, the owners feel it is time for an improvement. They feel two new single family homes is the best way to do that. Attorney Phoenix reviewed the original plan for 14 townhomes for the Board. He stated that he feels very strongly that the applicant has the right to renovate those properties, turn them into condominiums and sell them. He continued that the Herrons are mindful of the neighbors and the concerns expressed by the Planning Board and want to be good neighbors. They have bought into the concept that this is a residential neighborhood and wanted to look at a reasonable residential use. He pointed out that this lot is 3.7 acres. One of the lots will be 2 acres, which is double within the zone. The other lot will be 1.7, which is approximately 70% greater than the zone. The lots will be significantly improved. He stated that they met on site with the surrounding abutters. All of the abutters endorsed the project as presented, as long as it was residential. They feel strongly that while some relief is needed for the frontage, it is a very fair trade-off for what is there now or what could be there. The proposal is very fair given the circumstances. He stated that the applicant would be willing to stipulate that these will be residences and not used for business. He continued that these proposed home areas are quite large and a very nice home could be built. If the variance is granted, people can build within the law. The homes are going to be pitched as being estate lots with the homes set back. However, they are not saying that no home will be built outside of the presented building area. Member Dibble stated that in order to have a better understanding he would like to see the building envelopes clearly marked on the plan. This would give him an idea of the size of the house that could be built on that lot. Attorney Phoenix explained that the building envelope is shown on the plan by the dashed lines. That is what meets the setback requirements. If someone wanted to build a huge house they would be subject to the coverage for the lots. However, he does not see someone building a home at the front of these lots. He feels what is shown is a reasonable representation for what is expected. He reiterated that if they are able to subdivide the lot, whoever buys one of the lots can build according to the zoning ordinance. He reviewed the criteria for granting a variance. Member Crapo asked if water is available for year round use. Mr. Colwell confirmed. Member Crapo clarified that any new home would have to have a septic system. Mr. Colwell confirmed. Chairman Jarvis opened to the public for comments or questions. Keriann Roman, 33 Locke Road, stated that she is a direct abutter. She agrees with everything that Attorney Phoenix has said. She supports the application. She thinks the goal is always to make properties more conforming. While the frontage is being made less conforming, turning these into two residential lots will eliminate the coverage and other issues on the lot. This ultimately makes the property more conforming. She pointed out that they only support the application if there is some assurance that it 9

10 is going to be residential. The reason for that is because they are decreasing frontage for two lots. Decreasing frontage for two business lots versus two residential lots is very different. She pointed out that this is a heavy traveled beach access way. Without some sort of condition, people could put businesses on those lots and that would be a real safety issue. If the stipulation could be enforced with a condition, they would absolutely support the proposal. Attorney Phoenix stated that they have agreed to stipulate to residential use only if they are to get subdivision approval. He noted that he would be willing to put in a deed restriction that these lots are to only be used for residential. Member Dibble stated that Mrs. Roman s original provided for single family homes. Attorney Phoenix stated that he sees very little likelihood that someone is going to buy one of these lots and put up a duplex. That is not the market. With that said, this is a business zone and people have the right to rely on that zone. In return for everything they are giving up they have asked for some slight variances. They have also added to that a stipulation for residential use. If someone wanted to do something different they would have to come back to the Board. He does not think this should be seen as an opportunity for somebody else to control everything they want to do to this property. He understands what the neighbors are saying and why. However, at some point there should be a limit on the limitations. Mrs. Roman stated that since they are willing to stipulate to the residential she will retract the request that it be single family only. She agrees with Attorney Phoenix. She thinks that she can speak for the neighbors when she says they appreciate the owners coming forward with this plan. It was a bit of a concession and they really do appreciate it. Joe Cummins, 990 Washington Road, stated that he is not an abutter; however, he supports the application. Chairman Jarvis read letters in support of the application: Peter Ferris, 11 Locke Road Keri & Rafael Roman, 33 Locke Road Mark & Cynthia Sorenson, 15 Drake Lane Hearing no further comments or questions, Chairman Jarvis closed the public hearing at 8:15 p.m. Vice-Chair Goldman stated that he does not have any additional questions. He supports the plan. Member Weathersby stated that it is a great proposal that is clearly in keeping with the character of the neighborhood. She is very much in favor of the proposal. She would want some sort of condition about them being used for single family residences only. Member Crapo agreed. Member Goldman stated that he would like to add that to his comments too. Member Dibble agreed. Chairman Jarvis agreed. 10

11 Chairman Jarvis called for a vote on the variance requested; 1. The variance is not contrary to the public interest? 2. The Spirit of the Ordinance is observed? 3. Substantial justice is done? 4. The values of surrounding properties are not diminished? 5. Are there special conditions of the property that distinguish it from other properties in the area? 11

12 6. There is no fair and substantial relationship between the general public purposes of the ordinance provision and the specific application of that provision to the property? 7. The proposed use is a reasonable one? Therefore, literal enforcement of the ordinance would result in unnecessary hardship? Motion by Burt Dibble to grant a variance to Section 210.3G to the applicant for a two lot subdivision such that each lot will have lot frontage of 109 whereas 150 is required; subject to a condition that there will be one single family dwelling on each lot. Seconded by Paul Goldman. All in favor. Note: Gregg Mikolaities was seated for Patricia Weathersby for the following application. Seated: Ray Jarvis, Paul Goldman, Shawn Crapo, Burt Dibble and Gregg Mikolaities Neptune Drive, LLC, Patricia Weathersby, Manager, for property owned and located at 18 Neptune Drive, Tax Map 20.2, Lot 58 requests Variance to Section for expansion of a non-conforming house and Waiver to Building Code Sections & to replace a septic system 10 from side property line where 20 is required and 50 from wetland where 75 is required; and a Variance to Section to add 2 parking spaces where none exists, 4 is proposed from side property line where 10 is required. Property is in the General Residence and Coastal Area Overlay Districts. Case # Patricia Weathersby, Applicant, spoke to the Board. She explained that she is the manager/owner of the property located at 18 Neptune Drive. She is also an abutter to the property directly next door to the west. She continued that the property came on the market about a year ago. Her husband and she decided to buy the property to keep a small home on the lot. It is a seasonal home with just under 800 square feet total. It was built in the 1950 s and not much has been done to the home since. The septic system on the

13 property is a drywell in the back. There is no parking. The lot is typical of the other lots in the Fairhill Estates Subdivision at about 7000sq. ft. The property to the south does have a small wetland area. It is a non-jurisdictional wetland and certainly less than 1 acre in size but is classified by soils as a wetland. She continued that the property itself does not meet all existing setback requirements. The house is 20ft from the front where 25ft is required, given the averages of the lots and 16ft on the left side where 20ft is required. She explained that they would like to bring the house up to present day standards. They would like to put in a State approved septic system. She pointed out that they do have a State approved plan. They would also like to convert the home to year round use. The back porch will be enlarged slightly so it will be more useable. The current size is 12x8 and it will be enlarged to 12x12. She noted that the porch is in very poor condition and needs to be rebuilt anyways. She also noted that even though it is going to be enlarged it does not need any area relief. The relief that is needed is to install the septic system 50ft from the wetland, where 75ft is required. She stated that they are locating the septic as far away from the wetlands as possible in an area that does not affect any neighbors. It is going to be between the house and her property. In addition, there needs to be two parking spaces. They are proposing parking spaces on the east side of the property and they will need relief for that as well. She has contacted the abutters and none have expressed any issues at all with the proposal. Member Dibble questioned the enlargement of the porch. Mrs. Weathersby stated that the addition off the back was a porch. It will be enclosed and winterized. Chairman Jarvis opened to the public for comments or questions. Hearing none, he closed the public hearing at 8:33 p.m. Member Crapo stated that it makes sense and it is in keeping with the neighborhood. The addition seems very modest. There is only so much space on this lot for the septic. It definitely beats what is there. Given how modern septics work, the proximity to her own lot line will not pose much of a hazard. Member Dibble stated that he did not see any comment from the Building Inspector. He assumes the plan meets the Town s as well as the State s septic requirements. Building Inspector, Peter Rowell, commented with the waivers. Vice-Chair Goldman asked if the reason to put in the new septic is because of the fact that the building is being expanded. Mrs. Weathersby stated that it is presently a two bedroom septic and will be a two bedroom septic after. Mr. Rowell explained that it is also driven by the fact that more area on the ground is being used. On these smaller lots when the building is expanded, more area is taken that could be used for a septic system. Mrs. Weathersby noted that the intent is to put in the new septic. Member Crapo asked if they were trying to convert this to year round without the addition would it be safe to say that the existing septic would need to be replaced. He asked if it is just because of the new porch. Mr. Rowell explained that the home is being converted to year round. They have to have a State approved plan. The plan could have been approved in the early 80 s. If it is a State approved plan and the septic is functioning properly it can still be used because they are not increasing the load. 13

14 Member Mikolaities stated that he is okay with the proposal. It is two bedroom and will stay a two bedroom. He agrees that it is environmentally better than what is there now. They put it on the same side of the house where they live. He is okay with the proposal. Chairman Jarvis called for a vote on the variance to Section 603.1: 1. The variance is not contrary to the public interest? 2. The Spirit of the Ordinance is observed? 3. Substantial justice is done? 4. The values of surrounding properties are not diminished? 5. Are there special conditions of the property that distinguish it from other properties in the area? 14

15 6. There is no fair and substantial relationship between the general public purposes of the ordinance provision and the specific application of that provision to the property? 7. The proposed use is a reasonable one? 8. Therefore, literal enforcement of the ordinance would result in unnecessary hardship? Chairman Jarvis called for a vote on the variance to Section The variance is not contrary to the public interest? 2. The Spirit of the Ordinance is observed? 15

16 3. Substantial justice is done? 4. The values of surrounding properties are not diminished? 5. Are there special conditions of the property that distinguish it from other properties in the area? 6. There is no fair and substantial relationship between the general public purposes of the ordinance provision and the specific application of that provision to the property? 7. The proposed use is a reasonable one? 16

17 8. Therefore, literal enforcement of the ordinance would result in unnecessary hardship? Chairman Jarvis called for a vote for a waiver to the Building Code & : In reviewing the Building Code; Would enforcement of and do manifest injustice and be contrary to the spirit and purpose of the building code and the public interest? Motion by Shawn Crapo to approve the application of 18 Neptune Drive, LLC, Patricia 18 Neptune Drive, LLC, Patricia Weathersby, Manager, for property owned and located at 18 Neptune Drive, Tax Map 20.2, Lot 58 to Variances to Section and to Section and Waiver to Building Code Sections & as advertised and presented. Seconded by Burt Dibble. All in favor. Chairman Jarvis called for a recess at 8:46 p.m. Chairman Jarvis reconvened the meeting at 8:50 p.m. Note: Patricia Weathersby was reseated for the following applications and Gregg Mikolaities was unseated. Seated: Ray Jarvis, Paul Goldman, Shawn Crapo, Patricia Weathersby and Burt Dibble. 6. David & Ellen Winn for property owned and located at 39 Pine Street, Tax Map 8.1, Lot 76 requests Variances to Section to have an accessory apartment in the general residence; to Section 204.3F the lot is currently 32,237 sq. ft. where 44,000 sq. ft. is required; to Section I where all other zoning requirements shall be met for an accessory apartment. Property is in the General Residence, Coastal Overlay Districts. Case # David & Ellen Winn for property owned and located at 39 Pine Street, Tax Map 8.1, Lot 76 request a Special Exception to Section 506 to allow for an accessory apartment in a three season room. Property is in the General Residence, Coastal Overlay Districts. Case #

18 David Winn, 39 Pine Street, explained that the proposal is for an accessory apartment. The section of Pine Street that they are in is in the General Residence District but all the lots in the immediate area are.75 acres, which are similar to the Single Family Residence District. He reviewed the variances requested for the accessory apartment. Member Weathersby asked why they are applying for a variance to 204.3F. Building Inspector, Peter Rowell, explained that Section states that all requirements of the zoning ordinance must be met. The lot does not meet 204.3F because it is not 44,000sq.ft. Member Weathersby asked if the three season porch is going to be winterized and used. Mr. Winn explained that they will probably end up tearing down the three season porch and building a 600sq. ft addition. The Board reviewed the proposal. Chairman Jarvis opened to the public for comments or questions. None were heard. Chairman Jarvis read letters from: Jonathan Murphy Not in favor of the proposal. Christian Boyd In support (Requests it to be turned back if the house is sold.) Martin Quirk In support. Edward Drummond In support. Vice-Chair Goldman noted that Jonathan Murphy is not an abutter. Speaking to the applicant, Member Weathersby asked how he feels about the abutter s request that when the house is sold the accessory apartment is done away with. Mr. Winn stated that would be fine with that. His daughter is not planning on moving. It is being constructed so if someone wanted to convert it back into a great room they could just knock down a wall between the kitchen and the bedroom. Member Crapo commented that the whole kitchen would have to be taken out as well. He does not feel it is fair to the applicant. Member Dibble stated that the idea of covering things with conditions, that he doesn t see a real good reason for, makes him wonder. He s been wondering about this since he read the proposal. It seems that if it is granted it has the Board of Adjustment s endorsement. Why would the Board want to ungrant it? Why is one of the people that have submitted written testimony asking for it to be changed back? He did not see any explanation. He would give that request more credibility if there was a written explanation. Member Weathersby noted that she just wanted to ask the question. However, she is also uncomfortable requiring something to be reverted back. Vice-Chair Goldman stated that they are dealing with the appropriate process to apply the spirit and intent of an ordinance. There may be specific situations for a specific application but it is owner and people independent. It has to do with the land, the use and the variances pertaining to that particular situation. 18

19 Referring to Section 506.1, Chairman Jarvis stated that the purpose of an accessory apartment the Town of Rye recognizes the public need for the provision of a variety of housing types; including efficient and affordable housing for singles, couples, single parents, elderly and new households. Throughout the Town, opportunity exists within underutilized and large single family dwellings to create accessory apartments to meet these needs, as well as to provide a source of income in other assistance for property owners. Referring to the requested variances, Chairman Jarvis asked which other zoning requirements will not be met under (I). Vice-Chair Jarvis stated that if the variance to 204.3F is granted the requirements of (I) are satisfied. Mr. Rowell explained that one variance is because accessory apartments are not allowed in the Single Family District. A Special Exception is needed to allow it. The second variance is the one that all the requirements may be met. The requirement not being met is the size of the lot. Member Crapo commented that they are not requesting a variance to Mr. Rowell stated that the Special Exception wants these parcels to meet the current standards of the zoning ordinance. Chairman Jarvis commented that this is why he wants to identify any current standards that are not met. Mr. Rowell stated that it is only the one for the size of the lot. Member Weathersby stated that they should grant it to 506.3(I) because that pertains to the accessory apartment. Hearing no comments or questions from the public, Chairman Jarvis closed the public hearing at 9:21 p.m. Chairman Jarvis called for a vote on the variances to and (I): 1. The variances are not contrary to the public interest? 2. The Spirit of the Ordinance is observed? 19

20 3. Substantial justice is done? 4. The values of surrounding properties are not diminished? 5. Are there special conditions of the property that distinguish it from other properties in the area? 6. There is no fair and substantial relationship between the general public purposes of the ordinance provision and the specific application of that provision to the property? 7. The proposed use is a reasonable one? 20

21 8. Therefore, literal enforcement of the ordinance would result in unnecessary hardship? Motion by Patricia Weathersby to grant the variances requested by David & Ellen Winn for property owned and located at 39 Pine Street, to Section to have an accessory apartment in the general residence and to Section (I); noting that the only requirement that is not met to which this variance applies is Section (F) and conditioned upon the granting of a Special Exception to allow an accessory apartment. Seconded by Shawn Crapo. All in favor. In regards to the Special Exception, Chairman Jarvis stated that there are three questions that have to be decided to determine if it can be legally granted. Is the use one that is ordinarily prohibited in the district? Yes Is the use specifically allowed as a Special Exception under the terms of the ordinance? Yes with the variance. Are the terms specified in the ordinance for granting the exception met in the particular case? Yes Chairman Jarvis asked the Board: Is it injurious or detrimental to the neighborhood? Burt Dibble No Patricia Weathersby No Paul Goldman No Shawn Crapo No Ray Jarvis No Is it in harmony with the general purpose and intent of the Zoning Ordinance and is it in accordance with the general specific rules contained therein? Ray Jarvis No Motion by Shawn Crapo to grant the request for a Special Exception to Section 506 to allow for an accessory apartment at 39 Pine Street; pursuant to the received variances and as presented at this meeting. Seconded by Burt Dibble. All in favor. 21

22 8. Leroy & Joyce Snodgrass for property owned and located at 33 Gray Court, Tax Map 5.3, Lot 86 request Variances to Section for an addition to a non-conforming structure; to Section for building coverage of 19.2% where 15% is allowed; to Section 204.3A for proposed garage 12 in the rear setback where 30 is required; to Section 204.3B for proposed garage in the side setback of 20.3 where 20 is required; and Section 204.3C for a proposed deck 10.5 in the front setback where 30 is required. Property is in the General Residence, Coastal Overlay Districts. Case # Applicant requested a continuance to the September meeting. Motion by Paul Goldman to continue the application for 33 Gray Court to the September Board of Adjustment meeting. Seconded by Burt Dibble. All in favor. 9. Doris S. Tucker Trust, Harold B. Tucker, Trustee for property owned and located at 402 Wallis Road, Tax Map 18, Lot 87 requests an Administrative Appeal per Section of the Zoning Ordinance to the Building Inspector s determination that the owners must seek approval for the second dwelling (apartment) which has existed since 1970 and a Variance to Section to allow a second dwelling unit which has existed since Property is in the Single Residence District. Cases #32 and were withdrawn William T. McLaughlin for property owned and located at 28 Cable Road, Tax Map 8.4, Lot 5 requests an Administrative Appeal per Section of the Zoning Ordinance to the Building Inspector s letter dated June 20, 2014 that the applicant is in violation of Section conversion of seasonal dwelling units and Section permitted uses, that the owners must seek approval for the second dwelling (apartment) which has existed since Property is in the General Residence, Coastal Overlay Districts. Case # Attorney Jack McGee, representing the applicants, spoke to the Board. He explained that 28 Cable Road is a 6 unit complex. It has been a 6 unit complex and is entitled to be a 6 unit complex. He strongly disputes Mr. Rowell s determination that it is essentially a single family residence. Mr. Rowell indicated in his notice of violation that he went back through the town records. Mr. Rowell went back to 1953, when the zoning ordinance was enacted, and found nothing which allowed 6 units or a seasonal conversion. He does not fault Mr. Rowell. The problem is that Rye has no records that are applicable because records in Rye are woefully inadequate. Over the years, the records have just not been kept and that creates the problem that is before the Board tonight. Right now, William T. McLaughlin Jr. owns 28 Cable Road. His mother owned it before him. She passed away a few years ago and Mr. McLaughlin s sister deeded him the entire property. He continued that Mr. McLaughlin s mother owned the property in Joint Tenancy with her husband, William T. McLaughlin, Sr. William McLaughlin, Sr. acquired the property from his father Walter D. McLaughlin in the 60 s or thereabouts. Walter McLaughlin acquired the property in The property was owned in 1949 by Pearl McLaughlin wife of Walter McLaughlin. She died untimely in 1949 and Walter McLaughlin acquired her interests as her spouse. Pearl McLaughlin acquired the property in 1935 from the administrator of the estate of Walter Philbrick. In terms of records, Attorney McGee continued that there is an appraisal that was done when Mr. McLaughlin acquired the full interest of the property from his sister. The appraisal gives the layout of the premises. He explained that there is a main house and there is an efficiency apartment on the right towards the front. There is an L-shaped apartment to the left of the main house. In the back there is

23 another apartment which became known as the cottage. Also on the property is a barn with two units. He continued that also in the packet that was submitted to the Board is an affidavit from Anne M. French. The affidavit essentially says that she is the granddaughter of Walter D. McLaughlin. She was born in 1948 and remembers that this was apartments. Ms. French describes the apartments very well in her affidavit. He pointed out that Anne M. French is his cousin on his father s side. His wife is a cousin on the mother s side. His wife would visit the McLaughlin place in the 50 s and 60 s and was shocked that the building inspector said it was a single family residence. She well remembers all the apartments. He continued that there is also a bill of sale from Emma Philbrick in the packets. Emma was the wife of Walter Philbrick and the administrator of his estate. The bill of sale gives all the furnishings at 28 Cable Road to Pearl McLaughlin. The interesting thing is that Emma Philbrick retained the rights to live in two rooms on the north side of the house without rent. He pointed out that even in 1935, the McLaughlin s were going to live there but had someone else as a tenant. He continued that there is also a contract showing work that was done between Pearl McLaughlin and Blanchard Stebbins. This is for work that was done in The contract was for work being done on the main portion of the house and the efficiency apartment. It also shows work being done on the L-shaped apartment. He noted that he also has a copy of Walter McLaughlin s tax returns from 1950, 1951 and There is a depreciation schedule which shows improvements to the property. It shows that he is living in one of the units and depreciating the other five units. He continued that in 1957, a tax return shows a schedule of rents and the shed apartment. There is also a letter from Norman Jenness addressed to Walter D. McLaughlin. The next sheet is from the Office of Selectmen. It says residence $3,000, resulting in a tax of $195. It then says cottage $1200 with a $78 tax and land $1800. He would represent that the cottage refers to the shed apartment. In 1957, it is built and the Selectmen are assessing it. The Selectmen would have been responsible enough to call anybody s attention to an illegal apartment. He pointed out that in 1957 there are all six units and five of them predate Attorney McGee stated that they also have a 1967 insurance binder. It states it s for a four family dwelling and a two family dwelling. In continued that in 2006, Margaret McLaughlin applied for an abatement. The denial letter is from the assistant tax assessor. The application for abatement was addressed to the Selectmen. A field appraiser went to the property and noted that it was rental property comprised of two buildings. He pointed out that the field inspector of 2006 knew it and the Selectmen knew it. When Mr. McLaughlin was buying this property from his sister the bank wanted the Town to affirm that it was a 6 unit building. The tax assessor at that time indicated that it was a 6 unit property. He pointed out that they also have oil slips showing oil deliveries from 1963 to two oil tanks. This property was not seasonal and has been year round well before the Rye Ordinance. He continued that he also has ads from 1972 showing that the one bedroom apartment is available until June 15 th. In other words, it is a winter rental. He noted that there are no Board of Adjustment records prior to He stated that they do not know if Walter McLaughlin got a building permit in Maybe he went to the Selectmen and they said fine. He would not have done it without town authority. Unless there are complete records from that period of time nothing else can be established. He pointed out that the annual report in 1992 has a report from Bill Jenness the Building Inspector at that time. He stated in the report that the records in the Building Inspector s Office are a mess. Mr. Jenness also stated that when he took over the office in 1985 approximately 50% of the construction in Rye was done without a permit. He stated that five of the units predate 1952 without question. The other unit was constructed in It has to be assumed that it was not done illegally. The Board of Adjustment cannot go back and show their records prior to To say a person has to go back 57 years where no records exist is a deprivation of due process of law. In fairness, he asks the Board to recognize this, grant the appeal, recognize there are 6 units and allow Mr. McLaughlin to go on doing what he and his family have done since

24 Peter Rowell, Building Inspector, stated that he was not privy to any of these records prior to this. He pointed out that he has a brief handout as to what was in the file for this property. He continued that this came up when Mr. McLaughlin stopped paying for a cabin license, which had been paid for years. This insinuated that they did not rent on a seasonal basis. A cabin license clearly says that the cabins are closed between October and May. This raised a red flag and he did some research in the files. (He reviewed some of the permits found in the file.) Member Crapo asked if the units are rented for more than a year. Mr. McLaughlin explained that he was born in As long as he can remember they have had summer people and winter people. People would stay for the summer and they would rent the units from the end of summer until May or June. Member Weathersby asked if all the units have the same address. Attorney McGee confirmed. Member Weathersby stated that there is a lot of information presented showing five units pre It is clear that one unit was added in 1956 or There is a question of the legality of that unit. She asked him to speak to that. Attorney McGee explained that there is an apartment that has been there since In the same year, not only did the tax assessor and Mr. Jenness sending out a notice, the Selectmen send out a notice that the cottage is being added. The Selectmen knew about the unit. He is sure that the Selectmen would not allow a violation to continue. There are no records for the Board of Adjustment prior to 1969 based on that there should be an assumption that Walter D. McLaughlin would have done it right. If he was not doing it right the Board of Selectmen had more than one occasion to call him on it. Chairman Jarvis stated that the Board has before them a request for an Administrative Appeal of the letter stating that the applicant is in violation of version of seasonal dwellings and 204.1, permitted uses. The owners must seek approval for a second dwelling which has existed since He thinks that there is a huge vacant area of data. It would be impossible for the Board to make a logical deduction in this matter given the lack of documentation. He would like the Board to address the Administrative Appeal based on all the information that they have. Vice-Chair Goldman stated that given the information that Mr. Rowell had available to him he made the best decision he could make. He is personally leaning towards the Board ruling in favor of the applicant in terms of what has been presented. However, given that all of this has come to light there has to be some insurance on the part of the applicant that everything they are doing is in keeping with what is required now. If there is anything that is not in order with regard to ordinances or variances that have to be executed as a follow-on result. He thinks enough information has been presented that raises reasonable doubt. This information now sheds light on something that he is personally in favor of supporting. Member Crapo stated that if the Board somehow votes saying that there are 6 units, he would want to do it in a way that it is conditioned upon them being inspected and safe. Member Weathersby stated that what is before the Board is an appeal of a decision. The Board needs to decide how many units are there and if they are seasonal or not. The Building Inspector has the power to go to a property and inspect it at any time. She thinks it would be wise for him to go and inspect all of them very soon. However, she does not think they can mandate that or make it an approval of condition. 24