Approved October 22, 2003 /s/ John A. Lassey, Chairman
Deering Zoning Board Of Adjustment
762 Deering Center Road
Deering, New Hampshire
Minutes of the Meeting
September 24, 2003
Deering Town Hall
Called to Order: By the Vice Chairman, Larry Sunderland, at 7:30 p.m.
Roll Call: John Lassey, Larry Sunderland, Joe Lauzon, Glen Duer, Bob Fuller, and clerk Debbie Matthews.
Members of the Public: Betsey Neville, Gordon R. Blakeney, Jr., Robert Macentee, Rick Beard and son, David Maine, Don Mellen, Peter Mellen, Janice Tatman, Nicole Tatman, Susan Manchester, Michelle Johnson, Keith Johnson, Robert Todd, Rita Marion, and Bernard Marion.
The first order of business was Case #03-05 and administrative questions, including applicants option to delay hearing if there are fewer than five sitting Board members, were discussed. John Lassey, as an abutter to the Marion property, sat with the public and Larry chaired this part of the meeting. Larry read the case description. A portion of the property is in the Shoreland Protection District and the owner would like to subdivide it into 3 lots. Larry reviewed hearing procedures and called the public hearing to order.
Robert Todd, a surveyor from New Boston, spoke for Mr. and Mrs. Marion. The land is located at the junction of Reservoir Rd. and a private way known as Barnes Road. It has +200 of classified frontage on Reservoir Road and about 1100 adjoining the private way and is about 11 acres, total, a long linear piece of land oriented not along the lake but in a direction heading westerly from the lake. The lake frontage of 96.88', an average of the straight-line distance and the actual distance along the shoreline, is in a small, shallow cove. The lot now is non-conforming and, if subdivided into three lots, will still have one non-conforming lot. Mr. Todd discussed the application for a variance and the rationale for meeting five conditions (the Supplemental Sheet included with his
application for a variance).
One abutter said that greater setback from the lakefront is not compensation for reducing frontage required by the ordinance, a critical issue is the drainage from 3 lots into the lake, and the purpose of the ordinance is to prevent further development even though there is development along the lakeshore already. Gordon R. Blakeney, Jr., counsel for Betsey Neville, one of the abutters, submitted a written rebuttal to the applicant s statement. There were two other comments echoing the objections to the application. Mr. Todd rebutted the opponents to the application, stating that the lot is unique in its environment because of its length and its orientation, which is not toward the lake. Mr. Todd raised the question of whether a variance would be needed if the shoreline portion of the lot were
transferred to an abutter by a lot-line adjustment.
Larry summarized the testimony.
Larry I should say that, at the very start of the summary, I left out one point and that is that there is the question of whether the variance was needed at all because the non-conformity is the same for the existing lot and the proposed lot closest to the lake.
The board decided that a site visit was unwarranted. The public hearing was then closed and the deliberation was postponed until later in the evening.
John Lassey came back to sit with the board for two requests for informal consultations.
David Maine came to talk with the board about establishing a home business. The Board advised that to have a home business without the need of a special exception, the owner must first reside in the home. ~To conduct the business beforehand would require a special exception. The Board advised Mr. Maine to develop proof of starting his business by accumulating tangible evidence, such as checks, etc.
Peter Mellen came for a consultation on behalf of Mr. Rymes for the property known as the Deering Airport. The area they are interested in is an area south of the existing hanger. They are proposing to construct three hangers for the storage of airplanes. The units would be leased or rented, so basically it is an expansion of an existing non-conforming use. They are proposing 23 units. Peter Mellen and Susan Manchester were told they would probably need a special exception and possibly a variance. John said he could see some overlap of Zoning Board and Planning Board issues.
The next order of business was the minutes of previous meetings. The board deliberated on corrections to the minutes of May 28, 2003, July 23, 2003, and August 27, 2003. Motions were made to accept the corrections and were passed unanimously.
John told the Board about a series of municipal law lectures, from 7-9 p.m., one evening a week. The three lectures are:
number 1, Water, Wetlands and the Role of Local Government on October 15 in Manchester, number 2, Where Road Laws and Zoning Collide, RSA 674.41 and Other Paths Around the Rotary on October 22 in Manchester,
and number 3, Back to Basics for Planning Boards and ZBA s with a Land Use Law Update on October 25.
The Board decided that the clerk should check the ZBA mailbox every time the office is open and she is coming to Deering anyway (2 or 3 times a week). If there is anything in the box, she should e-mail John right away and he can come get it.
It was suggested to add to the instructions for applicants, “It is recommended that when you submit an application, you inform the chairman or the vice chairman.”
John removed himself from the table and sat in the public area of the meeting, and the board went back to deliberations on the Marion application for a variance.
The Board discussed whether there would be a diminution of value of neighboring properties, voting 3-0 with one abstention that this was not likely. ~The discussion then turned to the general question the effect of granting or not granting a variance, and whether the ZBA could consider the effects of granting the variance or solely the immediate effects of allowing a shoreland frontage of less than 150 feet. ~Some members felt that considering the effects of granting the variance was really within the purview of the Planning Board.
Bob referred to the Master Plan Visioning Session, the strong public interest in limiting further development along the lake shoreland, and the clear message in the Zoning Ordinance of this intent. ~Larry mentioned, in connection with hardship, that there appeared to be other ways to do the subdivision that either removed the nonconformity or mitigating the potential effects of granting the variance.
Joe, during the course of a wide-ranging discussion, expressed, with Glen's concurrence, the view that the remaining four criteria for a variance were met. ~ Granting the variance would not be contrary to the public interest because the land use within the Shoreland Protection District will remain unchanged from its present condition. Denial of the variance would result in unnecessary hardship to the owner because the purpose of Paragraph 10.10b of the Zoning Ordinance ~(Shoreland Protection District) is to prevent over-development of the shore of Deering Reservoir. ~The buildable area on the new ~3+ acre lot is identical to the buildable area within the Shoreland Protection District in the previous 10+ acre lot. ~ Granting the variance would do substantial justice because the denial of this variance would be a personal
loss without any counterbalancing gain to the public interest. The proposed use is not contrary to the spirit and intent of the ordinance because the proposed use within the Shoreland Protection District will not change
The Board voted 2 to 2 on granting the variance. Since the vote needs to be at least 3 in favor to pass, the variance was denied. Larry will write a Notice of Decision.
Adjournment: The meeting was adjourned at 11:30 p.m. The next meeting will be held at 7:30 p.m. on October 22, 2003.
Respectfully submitted,
Deborah Matthews, Clerk
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