PRESENT: Paul Spidle, Dave Mylott, Ron Nowe, Paul
Brown, Bob Jordan; Alternate Patrick Pagnani; Secretary Phyllis McDonough.
CALL TO ORDER: Chairman Spidle called the meeting to order at 7:00 P.M.
GATCHELL FAMILY
TRUST – Chairman Spidle read
notice for a Variance concerning Article: 6.9, Section: 3a Maximum Density for
an increase in density from 7 units to 10 total units. Parcel is located at
Attorney Hogan representing
the Gatchell Family Trust came before the Board. Hogan noted in October the original
application for a special exception and variance for density was heard and
approved by the Board, then a request for a rehearing by the Board of Selectmen
was submitted and the board denied that request, and since then a subsequent
request came by the Board of Selectmen, the board agreed and denied the
Gatchell application. Attorney Hogan
requested that from all previous applications and hearings the minutes be
incorporated in the file.
Attorney Hogan spoke on the
original request which was for 14 units when 10 were allowed, and the request
by the Board was to eliminate units which the applicant has done and is looking
for 10 units where 7 are allowed.
Attorney Hogan explained the understanding was the existing commercial
use would be eliminated by this plan. He
explained the plan provides green space and parking areas, and in the past the
general discussion with the board was that it is a better use although the
density was an issue and since then have eliminated a third of the units. He showed on the plan the middle units were
eliminated leaving the two that the board originally granted with the special
exception for the setback.
Attorney Hogan noted when the
plan was originally before the board for the special exception and variance the
board granted the request for 14 units where 7 units were allowed and there was
input from the board and abutters to move the building back on the lot and noted
that the whole middle part of 4 units have been eliminated. Attorney Hogan explained it seemed the Boards
concerns was density and the discussion by the Selectmen was the density in
relation to the hardship criteria, and when the Board discussed it the density
was part of the spirit of the ordinance.
Attorney Hogan noted the result of the decision was the amount of buildings
that were requested was doubled.
Mylott concurred that the
concern was the number of units. He
stated his concern at this time is the building closest to the Lavoie property
and asked why that wasn’t the one moved, as it has the most impact on the
abutters. Attorney Hogan explained the units
that are still there is part of the special exception that the Board granted. Attorney Hogan explained to the Board that
while his client is not in attendance, and if there is a design change of relocating
the unit on the lot, he will address the condition at that time to relocate
that unit.
Nowe explained he would
personally like to see the building moved even though it is not the purview of
the Board to state where buildings are going to be built. Nowe explained at that meeting the consensus
of the Board they all agreed to go with 10 units and if passed he hopes there
will be great consideration to move the building over to the north away from
the abutters. Attorney Hogan explained when
it goes to the Planning Board for their review he felt they will look at consensus
of the board and the abutters.
Chairman Spidle asked if a
condition of approval of the variance is the impact on the abutters would that be
a reason not to grant the variance. Attorney
Hogan explained in terms of density, the Board can grant the density based on
what is before them and if the Planning Board with its own jurisdiction or applicant
decides to present an alternative design they can require or recommend
conditions to the approval.
Nowe questioned if Hogan feels
the applicant left the building there as that was where all the discussion
was. Hogan stated he felt that could be
the reason as that was exactly what the board had discussed.
Mylott stated his concern is when
there is more than one request and always have to vote on each one individual. He explained the plan at that time he voted
in favor of the special exception, and stated if the plan that is before the
board at this time there is no way he would vote on granting the special
exception.
Nowe stated if the one unit
was moved to the right it would be less impact for water and sewer.
Attorney Hogan reiterated
that the Planning Board does have the authority to look at the issue and will
take into consideration the board’s comments. The Attorney noted that the trees
that were discussed at the rehearing are an amenity. He stated he felt his client looked at a few
different designs and has now eliminated a third of the units as the board
requested.
Chairman Spidle spoke briefly
on the request that the applicant bring in figures proving a hardship. Attorney Hogan stated he has never been
involved in a variance where an applicant had to bring in a business plan. Chairman Spidle stated that one of the conditions
of Boccia can be based on financial.
Given that the board originally approved the 14 units, the fact that a
third have been eliminated it obviates that discussion.
Chairman Spidle opened the public hearing.
Abutter Grace Lavoie stated
he concerns are the one building that is closest to her property line. She stated she feels when the ordinance was
written and it stated seven units it meant on a vacant lot and does not feel
this is in the spirit of the ordinance, and does not feel there is a
hardship. She noted even with the
commercial business this proposal would bring more vehicles, and noise.
Abutter Robbin Clements stated
she still has the concerns with 10 units vs. 7 units. She stated she feels this would be a great impact
on school, taxes, traffic, and noise.
She asked that the minutes from the previous meeting show a question
that she asked as far as if the setbacks are met but the density is not then
the setback would not exist and the application would be denied. Chairman Spidle explained there were two
different requests. She noted she was
assured that granting the application would not happen, and stated she has not
been given any valid reason why this should be allowed. Clements noted that the land owner does not
even live on the property and why that person would be given the right to have
more people on the site. She stated she
feels this proposal will decrease her property value and asked the board to
give this great consideration.
Abutter Tom Sutliffe first
stated he was not notified of the meeting.
Chairman Spidle explained he was notified of the first meeting that was
canceled and the date for another meeting was announced at that meeting and
that was his notification.
Sutliffe explained he does
not see hardship on the land and spoke about the owner being an absentee landowner. Sutliffe stated his concerns are with traffic
and the noise that would be heard.
Brown reminded the board and
Sutliffe that they are the ones that suggested Gatchell return with a reduced
number of units, and that is exactly what the applicant did. Brown also noted that he did not feel
Sutliffe would be bothered by any traffic from where he lives.
Mylott explained that the
abutters have valid points although there are rules that the Board has to look
at if an application is a just reason and whether or not the proposal is better
for the town and that is for the board to consider. Mylott stated he felt with this proposal it
would be quieter than the commercial business that is there.
Sutliffe explained he has
been living in this area for ten years and does not hear any noise at the time
with the commercial business on site, but stated he would hear noise with all
the traffic that would generate from the site if the application is approved. Sutliffe also spoke about what’s affordable
rent as the applicant had mentioned at a previous meeting and the proposal has
no benefit to anyone other than the absentee owner.
Nowe explained with Boccia
the criteria for hardship has changed, and informed Sutliffe one of the reasons
the noise ordinance came into town was due to all the heavy equipment on this
site. Nowe stated all the equipment he
has on his other site could be moved to this site and there would be much more noise
than what is proposed.
Attorney Hogan reiterated
this is a permitted use and encouraged by the town and has been discussed since
the beginning of the process. He
explained in context of the application and with the economy and a person who has
responded to the board’s process. He
reminded the Board is here to hear requests for special exceptions, variances,
appeals of administrative decision and to protect private property owner’s
rights. Attorney Hogan added he has
never heard that an owner of a property has to live on the property where buildings
are to be built.
Brown moved,
Chairman Spidle read the five
criteria from the Board of Adjustment Handbook for the record, and asked that
each member address the criteria for the minutes when they vote on the
application:
(1) “no decrease in
value of surrounding properties would be suffered;
(2) granting the
variance would not be contrary to the public interest;
(3) denial of the variance
would result in unnecessary hardship to the
owner seeking it;
(4) by granting the
variance substantial justice would be done; and
(5) the use must not
be contrary to the spirit and intent of the ordinance.”
Chairman Spidle also noted if
this application is granted, a letter will be addressed to the Planning Board on
the opinion of the Board to move building closest to the abutting property
owned by Lavoie.
No decrease in value of surrounding properties:
Brown stated hopefully the Planning
Board and builder take into consideration surrounding properties and finds it
will not be a decrease to value.
Nowe stated he does not feel
it decreases the value and that the Planning Board takes into consideration the
building that is there and that would apply to the new buildings.
Mylott stated he does not
think it would be decrease of the value, especially with the commercial business
that is on site now.
Chairman Spidle stated, in
general, it would not be a negative impact although feels there would be an
impact to the Lavoie property.
Not contrary to the public interest:
Brown stated they do not feel
it would be negative to public interest.
Nowe concurred with Brown.
Mylott explained public
interest is difficult and thinks the Planning Board who represent the town in
terms of the development in the area has agree with this type of development and
in that sense in may benefit the public interest.
Denial of the variance would result in unnecessary
hardship:
Brown explained this proposal
is going to cost the applicant and feels it would be a hardship and would need
to build at least ten units.
Nowe stated he feels there’s
a hardship on the land.
Mylott explained it is
difficult to say when the hardship has to do with density. He questioned if this is a reasonable way to
use this land and does the property owner have the right to build and give the
property owner the right to use his property, and agreed that the applicant did
reduce the amount of units as requested.
Chairman Spidle explained he does
not see anything on the land that creates a hardship and has not seen any
financial figures.
By granting the variance substantial justice would be
done:
……….Each case must be individually determined by
board……..the only guiding rule is that any loss to the individual that is not
outweighed by a gain to the general public
is an injustice. The injustice must be capable of
relief by the granting of a variance that meets the other qualifications. A board of adjustment cannot alleviate an
injustice by granting an illegal variance.
…………If the proposed project could be constructed such
that an area variance would not be required, the burden is on the applicant…….that
these alternatives are cost prohibitive……..the ZBA may consider the
feasibility of a scaled down version of the proposed use……..to also consider
whether the scaled down version would impose a financial burden on the
landowner.
Spirit of the ordinance:
Brown explained the board is
here to arbitrate, and with this proposal it is on town water and sewer and
feels it is in the spirit of the ordinance.
Nowe feels it is within the spirit
of the ordinance, the lot is smaller than what is called for, it can fit ten
units comfortably, it has area for parking, more green area, and the spirit of
the ordinance is to develop the downtown.
Mylott concurred with Nowe with
the way the property laid out it meets the general intention.
Brown moved,
Mylott noted he approve the
application based on the five criteria.
Nowe noted he approve the
application based on meeting the five criteria under Boccia.
Brown noted he approve the
application based on meeting the five criteria under Boccia.
Spidle noted he voted against
the application as he does not feel a hardship was met.
MINUTES OF 02/18/09 FOR APPROVAL – Mylott moved,
MINUTES OF 01/14/09 FOR SIGNATURE – Minutes of 1/14/09 were duly signed.
Mylott thanked Spidle and Jordan
for their service on the board for a great job, and wished all candidates who
are running for office luck in their positions.
Bob Jordan thanked the
residents in Epping for all their support over the last three years
Chairman Spidle thanked the
board for all their support and input.
Spidle explained he always has tried to be fair to the applicants.
Brown thanked both Jordan and
Spidle and under Spidle’s leadership has brought the board together.
Nowe thanked both Spidle and
Jordan.
ADJOURNMENT:
Respectfully submitted,
Phyllis McDonough,
Zoning Board of Adjustment Secretary
APPROVAL NOTIFICATION: March 4,
2009 - Minutes of February 18, 2009 were approved. Minutes of January 14, 2009 were duly signed
duly signed.