Zoning 012710 Minutes

Present: Jim Lagana, Vice Chairman; Kathleen Porter, Peggy Neveu, Mike DiPietro, Members and Serge Nadeau, Elizabeth Robidoux and Thomas Bassett, Alternates. Minutes recorded by Denise Royce.

Mr. Lagana introduced the Board members to those present and reviewed the procedures for the evening’s hearings. Mr. Lagana asked if everyone from all four (4) cases were present at this time? All were present.

Mr. Lagana explained that back in November 2009, they discussed that the State of New Hampshire would be changing the hardship criteria effective January 1, 2010. They would be eliminating any distinction between an area and a use for the hardship. Mr. Lagana stated that since all four (4) of the applicants submitted their applications prior to January 1, 2010 which was on the old application that Town Counsel has advised that the Board would govern by using the old criteria regarding “unnecessary hardship” for the following cases.

Mr. Lagana brought up that a few members’ term would be expiring this year. Mr. Lagana also mentioned that there was a vacant position available if anyone was interested and suggested that they get in touch with Denise Royce, Zoning Secretary or the Board of Selectmen.

Mr. Lagana further explained that the Board would discuss each case and then vote on whether to grant or deny. Should the applicant wish to appeal it, they would have 30 days in which to appeal. Likewise, any abutters or other interested parties would also have a chance to appeal it as well. If you obtain relief tonight, you can certainly begin within 30 days but that it would be at your own peril. If you do obtain relief tonight, you would have one year to complete substantial construction. If you do not complete it within one year’s time, the decision is then vacated and you would need to come back before the Board to be heard again.

Applicant is requesting a variance to allow the construction of a detached garage within the side setback (Article 4.06, Section 6).

Mr. Lamarque read his application for the record. The Board reviewed the plot plan indicating where the garage would be placed. Mr. Lagana asked the Code Enforcement Officer about the status of the right of way? Mrs. Rouleau-Cote commented that the right of way was never relinquished. Mr. Nadeau asked who owned the right of way? Mrs. Rouleau-Cote stated that it was a dedicated right of way. If the right of way was ever relinquished, the two abutters would then go to the centerline. Mr. Lagana asked if there would be any reason why the town would need the right of way? Mrs. Rouleau-Cote replied, not that she knew of. Mr. DiPietro asked if there were any lots of record that would need this right of way? Mrs. Rouleau-Cote said, not that she knew of. Mrs. Porter reviewed the tax map and indicated that there were no lots that were landlocked. Mr. Lamarque explained that the right of way is all wooded. Discussion ensued with regard to the right of way. Mrs. Rouleau-Cote stated that Mr. Lamarque would be seven (7) feet from the right of way and that he would not be in the right of way. Mr. Nadeau was familiar with the lot and could not understand any reason why the town would want to do anything with the right of way.

Mr. Lagana asked if there were any further questions from the Board for the Applicant? None were noted.

Mr. Lagana asked if there were any abutter’s present or interested parties? None were noted. Mr. Lagana asked the Code Enforcement Officer if she had any further questions? Mrs. Rouleau-Cote replied that, Mr. Lamarque has had a survey done and has worked with her quite a bit beforehand in order to get this done. Discussion ensued with regard to how it could be relinquished. Possibly by either petition or if the right of way has not been used for so many years could be a method of relinquishing the right of way.

Mrs. Porter made a motion to vote on the application as submitted, seconded by Mr. Nadeau. Mr. Nadeau, Mrs. Neveu, Mr. DiPietro, Mrs. Porter and Mr. Lagana all voted to grant.

Mr. Lagana reiterated to Mr. Lamarque that he could begin immediately but it would be at his own peril as there was a 30-day appeal period.

Applicant is requesting an Appeal from an Administrative Decision by the Building Inspector and a variance for a use not defined; to expand home office use to include occasional outdoor use of property for civil and/or memorial services. (Article 3, Section 3.01).

Mrs. Mudge read the letter submitted to the ZBA Board requesting a variance. At this time, Mrs. Mudge read her application into the record. Mr. Lagana asked Mrs. Rouleau-Cote why she denied Mrs. Mudge because of the definition? Mrs. Rouleau-Cote stated yes, that she could not find a definition that would fit for what Mrs. Mudge was proposing. If she were doing ceremonies inside the home then you could define it as a home office/home business but since she wants to do ceremonies outside on the property it does not fall under the home office/home business. Mrs. Rouleau-Cote also noted that she did not think it fit under the commercial service establishment. It was very difficult to find anything that would fit into what Mrs. Mudge was proposing to do on the property.

Mr. Lagana asked Mrs. Mudge if conducting memorial or civil services would be on a weekly basis? Mrs. Mudge said no and that within the last five (5) years she has never used the property at all. Mrs. Mudge stated that she couldn’t even imagine that she would use the property. Mrs. Mudge just wanted to be approved to be able to do it if the possibility arouse. Mrs. Mudge commented that she has had three (3) family members married by her within the past five (5) years and none of them were conducted in her home. Mrs. Mudge informed the Board that she usually would conduct the ceremonies in a church, restaurants and halls. If a small family wanted the opportunity to come to their home then they could. Mr. Lagana asked Mrs. Mudge if there would be the possibility of a hearse coming to the property? Mrs. Mudge replied that she does not do funerals so she did not see the potential of a hearse on the property. Mr. Lagana asked Mrs. Mudge if she would be willing to put this in an agreement? Mrs. Porter explained that it would restrict her from doing funerals? Mrs. Mudge agreed. Mrs. Porter asked about the property and the location of the garage, pool and house? Mrs. Mudge pointed out each on the property. Mrs. Porter asked, what brought her before the Board tonight since she is a Justice of the Peace? Mrs. Mudge replied by saying that she wanted everything to be legal.

Mrs. Porter directed a question to Mr. Lagana and believed that it would fall under home office with what Mrs. Mudge is proposing on doing? Mr. Lagana commented that it was a use not defined and it would be how they would interpret the ordinance, which is the reason she is before the Board tonight.

Mr. DiPietro began to make a motion to go into deliberations. Mr. Nadeau wanted to ask a question before they went into deliberations and directed the question to Mrs. Mudge on how many people she planned on having? Mrs. Mudge said twelve. Mr. Nadeau interpreted this as being small functions.

Mr. Lagana wanted to ask if there were any abutters or interested parties? Mr. O’Neil was present tonight on behalf of the Manchester Water Works and explained that he had met with the Mudge’s as an abutter. Mr. O’Neil stated that he was at the Mudge’s and viewed the area in question and noted that they were small areas and did not have a problem with what she was proposing as long as it was contained to those areas. Mr. Lagana explained that if there were any relief granted tonight that would be referred to the Planning Board for minor site plan review. Mr. Lagana asked if there were any other applicants? Ms. Kathleen Provost commented that she was opposed to it as the homes are close together and for the six weeks a year she gets to enjoy the outside she did not want to watch grieving people or a wedding every weekend. Ms. Provost also was concerned with property values and the fact that there was already a business located on this property. Mr. Lagana asked if there were any other abutters or interested parties? None were noted.

Mr. DiPietro began by saying that it they couldn’t make it analogous to anything as they could not define it in the Zoning Ordinance. Mr. DiPietro believed that it should be incorporated in the Zoning Ordinance. Mr. DiPietro noted that if it was defined by the planners that it would be allowable. Mr. Bassett asked if the variance would be ongoing? Mr. Lagana stated that the variance would go with the home. Discussion ensued with regard to defining Justice of the Peace. Mr. Lagana noted that he could not find one and therefore it was a use not defined. The Board discussed the use as being a home office. Mr. Lagana explained that the use is more analogous to a home office and a home office is permitted in the R-1 and R-2 Zone. This would then go before the Planning Board for site plan review where the Planning Board would then discuss the hours of operation, days of operation, number of vehicles and the like. Mr. Nadeau asked if they could say how many people can be allowed? Mr. Lagana said, this would be handled by the Planning Board. The Board then discussed whether or not Justice of the Peace was analogous to a home office. Mrs. Robidoux commented that the Board should ask, could we allow everybody whose property is in the circumstances to do the same thing and still preserve the integrity of the ordinance. Mr. Lagana thought this was a point well made. Mr. Lagana asked Mrs. Porter for her thoughts. Mrs. Porter believed it was analogous to a home office. Mrs. Porter explained that it was a professional doing business from her home and believed that the Planning Board would address the other issues. Mr. Lagana believed that the Board needed to be realistic as the applicant wants to conduct the various functions of a Justice of the Peace. Mr. Lagana asked the Board if they were in agreement with his suggestion that, any relief would be conditioned upon the applicant statement that no funerals would take place on the site and that it was conditioned upon the applicant being referred to Planning Board for site plan review? Mr. DiPietro agreed. Further discussion ensued with regard to home office to include Justice of the Peace. Mr. Lagana stated that if the Board agrees that this particular function is analogous to a home office, it is permitted in the R-2 Zone. Mr. Lagana asked if there were any other comments? None were noted.

Ms. Provost stated that the fact that it’s moving outside is the issue as she did not want to watch funerals and weddings. Mr. Lagana explained to Ms. Provost that if they find that it is analogous to a home office, a home office is allowed in the R-2 Zone. Mr. Lagana further explained that should any relief be granted that it would go to Planning Board where it would be further discussed. Ms. Provost asked what a home business now and understood it to be an expansion of a home business. Mrs. Rouleau-Cote wanted to clarify that if the Board determines that this would be considered a home office, then home office is a permitted use in the R-2 Zone and would not be subject to Planning Board review. Mrs. Porter asked if they could require it to go to Planning Board? Mrs. Rouleau-Cote stated that the only thing would be if you agree that it is an expansion to the home office definition, they would have to determine that the outdoor use would be an expansion of the home office definition and that the Board would be granting the variance to allow the outdoor use as part of the home office and then it would go to Planning Board for site plan review. Mrs. Mudge understood the concerns of Ms. Provost and reiterated that she would not have more than 12 people and that she wants people to come to the house. It would be small family groups in her home and not planning to have weddings outside she just wants to put a sign to be able to advertise what she does. Mr. O’Neil commented that their only concern was that the initial sign had “Lakeside Services” so they were concerned that services would be taking place on Manchester Water Works property. Mr. O’Neil believed if they were to have small services on their patio then no one would see it from the road and if the Board were to limit it to one area. Mr. Lagana asked Mrs. Mudge if it was called “Lakeside Services?” Mrs. Mudge said no, that it would just say “Justice of the Peace.” Mr. Lagana explained that it was important to take abutters into consideration whenever they grant. Mrs. Porter noted that if it was limited to inside the house that, it would not be considered an expansion of use. Discussion ensued with regard to the location of performing services. Mrs. Mudge stated that she does not have cooking facilities or bathroom facilities and that there would not be any receptions held at the house.

Mr. DiPietro asked about the other business located on the property? Mr. Mudge answered by saying that, it would be open for interpretation that, when he moved there, there was a commercial garage he wanted to keep that possibility open so when he retired he could work on lawnmowers. Mr. DiPietro believed that there was enough information to say it was an expansion and be able to grant a variance with some conditions. Mrs. Robidoux added that it would be a variance if they meet the factors. Mr. Lagana further reiterated that they could say, no funerals would take place on the property and that any kind of outdoor function, whether it be a wedding or memorial service or whatever else a Justice of the Peace does, if it’s outdoors, it would take place underneath the porch on the cement patio and would not expand beyond that area and any outdoor functions would be held to a minimum. Should a motion be made, Mr. Lagana suggested that it be conditioned upon site plan review. Mr. Lagana thought it would be also important that the Zoning Board state any kind of motion that the Zoning Board agrees, unanimously, that the use is analogous to a home office. Mr. Nadeau asked Mr. Lagana if they should have an additional vote first to classify it as a home office/home business? Mr. Lagana believed that as long as it was unanimous. Mrs. Porter thought that they could motion first and then have some discussion.

Mrs. Porter made a motion to vote on the application as presented conditioned on the following:

1) that the applicant goes to the Planning Board for site plan review,

2) that no funerals be held on the property,

3) that any outdoor functions be limited to the porch and patio area and to the services of a Justice of the Peace,

4) that this is considered an expansion of a home office definition, seconded by Mrs. Neveu.

Mr. Lagana explained that if the Board finds that they must deny, that they site which of the five factors that they feel has not been met. Mr. Lagana further explained that a vote to grant is to grant with conditions and a vote to deny is to deny and to please site the factors that have not been met.

Applicant is requesting a variance to allow the construction of a shed within the 50 foot side setback. (Article 4.05, Section 4).

Mr. Lagana elevated Mrs. Robidoux to full voting status for the next two cases as she was familiar with Boxwood Drive.

Mrs. Crump stated that her husband was the one who submitted the application and that he was out of town. Mrs. Crump passed out an overview and photos of the property showing the location and placement of the shed. Mrs. Crump read the application into the minutes. At this time, the Board reviewed the photos. Mr. Lagana asked if yard stuff would be placed in the shed? Mrs. Crump said yes. Discussion ensued with regard to the location and placement of the shed. Mr. Bassett asked what size the shed would be? Mr. Lagana stated 10 feet by 14 feet. Mr. Nadeau asked Mrs. Crump if she could see the houses on Pingree Hill Road? Mrs. Crump said maybe a light as there are a lot of woods. Mrs. Crump did not believe you would be able to see the shed from the street as it would be in back of the house. Mrs. Robidoux noted that the septic system is located in between the house and the shed and that is why the house could not be closer to the house.

Mr. Lagana stated that a motion has been made and seconded. Mr. Lagana asked if there were any abutters present? Mr. Babb was present but did not have any problem with what was proposed. Mr. Lagana asked Mrs. Rouleau-Cote if she had any issues? Mrs. Rouleau-Cote did not have any problem. Mr. Lagana explained that a vote to grant is to grant and to deny is to deny the application and to please state the reason why.

Applicant is requesting a variance to allow the construction of a residential dwelling and detached garage within the required wetland setback. The primary dwelling requests a reduction in the setback of 92.9 feet and the garage a reduction in the setback of 106.5 feet from a wetland where 125 feet is required. (Article 5, Section 5.03).

Mr. Babb began by saying that this plan was a revamping of an older site plan that was before the Board in 2007. Mr. Babb explained that it expired last year. Mr. Babb stated that the plan has remained the same except that the footprint is smaller. Mr. DiPietro asked if they would maintain the same bioretention design? Mr. Babb said yes. Mr. Babb read his application into the minutes.

Mr. Lagana explained that the Board did receive a copy of the Conservation Commission minutes where the Conservation Commission reviewed this case and voted in favor of the proposal. Mr. Lagana asked if the prior plans footprint was smaller? Mr. Babb said no it was larger. Discussion ensued with regard to the driveway.

Mrs. Porter asked about the garage? Mr. Babb indicated that the detached garage would be 30 feet by 30 feet. Discussion ensued with regard to the garage and location. Mrs. Porter commented that she could do minimal relief. Mrs. Neveu asked about the driveway coming down the right of way. Mr. Lagana asked how close the house would be to the Derry town line? Mr. Babb answered 50 feet.

Mr. Lagana asked if there were any abutters or interested parties? None were noted. Mr. Lagana asked Mrs. Rouleau-Cote if she had any comments or concerns? Mrs. Rouleau-Cote did not have any issues.

Mr. Nadeau remembered previously that there was concern with regard to protecting the wetlands from chemicals. Mr. DiPietro commented that the bioretention system would take care of it. Mr. Babb explained that it was basically a four foot deep sponge type design and that between the leaf content, sand content and the organic content of the material that is required to be in there. Mr. Nadeau asked if this would take care of the runoff on the property with regard to fertilizers. Mr. Babb noted that there was some indication that no fertilizers would be used. Discussion ensued with regard to the bioretention system. Mrs. Rouleau-Cote believed that there was something mentioned about recording something with the deed. Mr. Nadeau wanted to be sure that something was in place with regard to protecting the wetlands.

Mrs. Robidoux asked if this plot plan would be recorded? Mrs. Rouleau-Cote asked if the plan was recordable? Mrs. Robidoux said no. Mr. Nadeau believed that they could say in the motion “as presented.”

Mrs. Porter did not want to use the word “blessed.” Mr. Nadeau suggested adding the plan number. Mr. Lagana thought it would be a good idea to site today’s date and the plan and prepared for Green Oak Development.

Mr. DiPietro amended the motion to say: to vote on the application as endorsed by the Conservation Commission per plan dated December 22, 2009, P-1, prepared for Green Oak Development, seconded by Mrs. Porter. Mrs. Robidoux, Mrs. Neveu, Mr. DiPietro, Mrs. Porter and Mr. Lagana all voted to grant.

Mr. Lagana reminded the applicant that there was a 30 day appeal period and that if they wished to begin now it would be at their own peril.

Mr. Lagana reminded the Board that the Board had a non-public meeting that they had to enter into pursuant to RSA 91-A:3,II(e).

Mrs. Porter made a motion to accept the minutes of November 17, 2009 as written, seconded by Mr. DiPietro. The motion passed in the affirmative.

Mrs. Porter made a motion to go into non-public session, seconded by Mr. DiPietro. Mr. Bassett, Mr. Nadeau, Mrs. Robidoux, Mrs. Neveu, Mr. DiPietro, Mrs. Porter and Mr. Lagana all voted to go into non-public session at 8:58pm.

Mrs. Porter made a motion to come out of non-public session, seconded by Mrs. Robidoux. Mr. Bassett, Mr. Nadeau, Mrs. Robidoux, Mrs. Neveu, Mr. DiPietro, Mrs. Porter and Mr. Lagana all voted to come out of non-public session at 9:13pm.

Mrs. Porter made a motion to seal the minutes of the non-public session, seconded by Mr. Nadeau. Mr. Bassett, Mr. Nadeau, Mrs. Robidoux, Mrs. Neveu, Mr. DiPietro, Mrs. Porter and Mr. Lagana all voted to seal the minutes of the non-public session.

Mrs. Neveu made a motion to adjourn, seconded by Mr. DiPietro. All were in favor, the motion passed unanimously and the meeting stood adjourned at 9:15 p.m.