July 17, 2003 Minutes

Pittsfield Zoning Board of Adjustment
Town Hall, 85 Main Street
Pittsfield, NH 03263
Minutes of Public Meeting
July 17, 2003
Call to Order 7:08 PM
Members in Attendance:
Roll Call; Robert Elliot (RE), Chair, Susan Muenzinger (SM), Robert Lincoln (RL),
Christine Westerberg (CW), Paul Metcalf (PM)
Town Attorney Tim Bates is also present.
Public Hearings and Conceptual Meetings:
Rehear for a variance filed by the Lily Pond Road LLC. of Canterbury Street, Suite 404,
Concord, NH 03301 for the variance to allow Residential use in a Light Industrial /
Commercial Zone located at Shaw Road and Route 107, Pittsfield, NH Tax Map R4 Lots
1B and 2, Pittsfield, NH. I would like to note this is strictly to discuss the variance.
(SM) Attorney, Tony Saltannie will not be here.
To: Pittsfield Zoning Board of Adjustment
Re: Application of Lily Pond Road, LLC, for a variance from Article 2,
Table 1
Premises on Route 107 and Shaw Road, Tax Map R41 B and Z MEMO IN
SUPPORT OF APPLICATION
From: Lily Pond Road, LLC, by its Attorney, Patrick H. Wood, Wescott, Millham &
Dyer, L.L.P., 28 Bowman Street, P.O. Box 1700, Laconia, NH 03247-1700
Date: July 17, 2003
The zoning board of adjustment shall have the power to:
(b) Authorize upon appeal in specific cases such variance from the terms of
the zoning ordinance as will not be contrary to the public interest, if, owing to
special conditions, a literal enforcement of the provisions of the ordinance will
result in unnecessary hardship, and so that the spirit of the ordinance shall be
observed and substantial justice done. NH RSA 674:33, I
“as will not be contrary to the public interest”
The property for which the variance is requested is in both the Light
Industrial/Commercial District and Rural District and is located on Route 107 and Shaw
Road.
Page 2 of 12
The applicant has proposed a cluster residential development on the property.
The variance requested is to use that part of the property along Route 107 that is within
the Light Industrial/Commercial District for the cluster residential development.
The property is about 75 acres in size.
The total area within the Light Industrial/Commercial District is about 15 3/4 acres, of
which just under 5 acres is usable land.
Without the variance, the land in the Light Industrial/Commercial District would not be
available for the cluster residential development which would make it more likely that
Shaw Road would have to be used for access and further development, rather than
maintaining that area from development.
The residential nature of the proposal would be more in keeping with the 80% of the
property that is in the Rural District and would permit a design that would be more in
keeping with the requirements of the Rural District.
Development of the less than 5 acres for industrial or commercial use would more likely
have a greater impact on adjoining wetland areas than would the less intensive residential
uses proposed by the Applicant.
Granting of the variance to permit the proposed use would not be contrary to the public
interest.
“the spirit of the ordinance shall be observed”
The Pittsfield Zoning Ordinance, Article 2, Paragraph 5, indicates the Light
Industrial/Commercial District “is intended to recognize existing industrial areas and to
permit controlled expansion of these and other light industries.”
Article 2, Paragraph 3, of the Pittsfield Zoning Ordinance states that the Rural District is
established “to accommodate residential uses in what is commonly recognized as being a
rural environment.”
Other than the regional transfer station, the property of the Applicant is in a rural setting
with even limited residential development, and certainly not industrial or commercial
properties.
Allowing the small portion of the land within the Light Industrial/commercial District
that is usable to be combined with the majority of the land in the Rural District would
better to serve the purposes and spirit of the ordinance by recognizing the rural
environment and maintaining that environment.
Page 3 of 12
“so that…substantial justice [shall be] done”
Allowing the small portion of the land within the Light Industrial/Commercial District
that is usable to be combined with the majority of the land in the Rural District would
permit the Applicant to use that land for access to Route 107, rather than developing a
point or points of access on Shaw Road.
Limiting access points on Shaw Road is in keeping with the scenic highway designation
for that highway.
In light of the limited likelihood that this small area of usable land would ever be
developed for commercial or light industrial uses in the foreseeable future, allowing this
land to be combined with the land in the Rural District would permit the reasonable use
of the land by the Applicant.
Allowing that use would help to assure that substantial justice shall be done.
“will not result in diminution of surrounding property values”
Since about 80% of the property is in the Rural District, adding this land to the Rural
District would allow the development of a cluster residential development that would
enhance rather than detract from the rural character of the neighborhood.
Maintaining the rural character of the neighborhood will help to maintain and would
more likely serve to increase surrounding property values.
“a literal enforcement… will result in unnecessary hardship”
1) a zoning restriction as applied to their property interferes with their reasonable use of
the property considering the unique setting of the property in its environment,
2) no fair and substantial relationship exists between the general purposes of the zoning
ordinance and the specific restriction on the property, and
3) the variance would not injure the public or private rights of others.
Simplex Technologies, Inc. v. Town of Newington, 145 N.H. 727 (2001)
The Applicant’s property is located in a rural area of the Town of Pittsfield, quite some
distance from any commercial or industrial uses, other than the regional transfer station.
Because of the topography of this part of the property within the Light
Industrial/Commercial District, it would be very difficult to develop for commercial or
industrial uses.
If the less than 5 acres of usable space were developed for commercial or industrial uses,
it would not be economically feasible to use a large part of that property for access to a
Page 4 of 12
cluster residential development, which would force the development of access points for
the back land on to Shaw Road.
Since about 80% of the Applicant’s property is in the Rural District, and because there is
no other commercial or industrial development in the neighborhood, denying the variance
would interfere with the reasonable use of the Applicant’s property considering the
unique setting of the property in its environment.
One of the general purposes of the Pittsfield Zoning Ordinance is to promote “the health,
safety and general welfare of the inhabitants” of Pittsfield. Article 1.
Granting this variance would promote the general welfare of the inhabitants of Pittsfield
by helping to preserve the rural character of this neighborhood.
Another general purpose of the Pittsfield Zoning Ordinance is to “facilitate the adequate
provision for transportation, water, sewage, schools, and other public requirements.”
Article 1.
The Pittsfield Zoning Ordinance recognizes that property in the Rural District will
generally not have “sewer and water facilities available.”
There are no municipal water or sewer lines servicing the Applicant’s property which is
further evidence of its rural character.
As a general rule, commercial and industrial development takes place where municipal
water and sewer are available.
In light of the language of the Pittsfield Zoning Ordinance that provides for the
recognition of “existing industrial areas” and the “controlled expansion of” the industries
in those areas, Article 2, Paragraph 5, it is clear that no fair and substantial relationship
exists between the general purposes of the industrial and commercial purposes of the
zoning ordinance and the specific restriction on the Applicant’s property, which is
residential and in a rural setting,
The Applicant’s property is mostly in the Rural District and there is no commercial or
industrial development within the environment of the Applicant’s property other than the
regional transfer station.
Maintaining the rural character of the Applicant’s property would not injure the public
rights because it would not be unreasonably restricting the future development of bettersuited
and located property in the Town of Pittsfield for commercial or light industrial
development.
The private rights of the neighboring property owners would be enhanced by the
maintenance of the rural character of the neighborhood.
Page 5 of 12
Since there are no commercial or industrial properties in the neighborhood that might be
looking for room to expand, the granting of the variance would not injure any private
rights.
Respectfully submitted,
Lily Pond Road, LLC
By its attorneys
Wescott, Millham & Dyer, L.L.P.
28 Bowman Street, P.O. Box 1700
Laconia, NH 03247-1 700
603.524.2166
(SM) I have a point of clarification, you keep talking about the residential nature of the
purpose will be with in keeping the 80 percent that is already in the rural district. I am
kind of confused because a large portion appears to be suburban zone. It could be a rural
with a small R or it could be a rural with a large R.
(HF) It is with in three zones.
Attorney, Patrick H. Wood; The environment is what we are talking about and it is rural
with a small r.
() It should be noted for the record that the cluster development is permitted by special
exception both in suburban and rural and is still left with a need to get a variance for the
light industrial/commercial part of the property.
(RE) Any one else want to speak for this?
No One.
(RE) Any one want to speak against it?
(SM) I would like to raise a discussion about the reasonable use of the property being up
there. If the property is left as Light Industrial it could still maintain its rural character in
that they own it and could be trees and what ever it is now and not be turned into actual
lots to be built on. I guess that is something the Planning Board could work with them
on. It could stay Light Industrial/Commercial and wouldn’t destroy the rural character of
that particular piece of property.
(CW) Could you reiterate your point a little more clearly, because some of us didn’t quite
understand it.
(SM) There is a certain number of acres, I think he said 5 acres in particular, is what is
needed to complete their cluster development. Is that right Mr. Wood?
Attorney, Patrick H. Wood; No, not quite there is a little under 5 acres that is useable land
that is with in the Light Industrial/Commercial Zone that is the area over which the
access road will be coming into the development.
(CW) At first you mentioned 15 acres but 5 acres in particular.
Attorney, Patrick H. Wood; The 15 acres is the approximately area of all the property that
is with in the Light Industrial/Commercial the 5 acres is what is for the road and some of
these lots are.
(SM) My questions in discussion is the 5 acres and in deed the 15 acres doesn’t
necessarily to be taken out of the Light Industrial/Commercial Zone in order to
accentually keep that area looking rural the way Mr. Wood’s argued that it should or
would. They could still do their cluster development and keep that piece alone.
Page 6 of 12
(JB) The additional houses there don’t blend to the vitality of that particular area any
more then the way it is now.
(CW) Susan, In my own mind I would like to understand exactly what you are saying. In
other words, what you are saying is those three lots that are in the Industrial Zone need
not be there but the road still could be there in your mind could provide access to the
larger cluster.
(SM) That is my question. That would still maintain the rural character. They talked
about how the reasonable use wouldn’t interfere with the unreasonable…. But, Susan
you did reiterate correctly what my question was. Why can’t the zone be left the way it is
and strictly have a road going through it for the cluster development? I don’t know what
the benefit the total is to the Pittsfield for not leaving it that way because I don’t know the
difference in tax dollars that would get.
(RE) That may not be a relevant point.
(SM) That is a relevant point because in total if the Town benefits more from
Industrial/Commercial land taxes then it does from residential it might be a point.
() If you look at from a financial point you are taking away potential income from these
people.
(RE) Wouldn’t we be taking away from potential tax dollars as if you leave it the way is
you will be getting tax dollars then you would if there was a building on the land. But, I
am not sure that is a relevant point. Thank You, for making it any way.
(SM) Back to the first point I made is keep it industrial and just run a road through it to
preserve the rural character. And my second point is about tax dollars, you said you
don’t want to debate it but that is what we are here tonight to discuss the benefits for or
against tax dollars. Along the same lines of preserving the rural character in the total
cluster development talking about no diminution of value the property. The Planning
Board has been working with the developer in reducing the number of lots in this
development. In some ways I think this piece of property staying in Light
Industrial/Commercial as a way of reducing the number of lots that go into the
development and in keeping with what the Planning Board has been working with them
on.
(JB) Is that the latest site plan or map of the development because I count 25 lots there
and I thought the number had been reduced the last plans were to 23 lots. If it is in fact
25 does either of those two extra lots impact what we are talking the variance area?
(RE) Is any thing else negative?
No One
Attorney, Patrick H. Wood; This map is just to show the zoning line and there will be
impact/change to the land that is in the Industrial Zone.
(FH) Mr. Chairman, One statement I would like to make if they follow that line out and
they took that out of the development that actually amount of land and the figuration of
that property would not blend to commercial land so you wouldn’t get any commercial in
there, you haven’t got the width.
() This has been discussed before that this area is not useable as commercial land.
Attorney, Patrick H. Wood; The first point brought up, that the reasonable use is being
interfered with. You have to look at the entire track of land, what we are asking is to
keep the land as one development and not split it up. We are trying to keep the entire
track of land as one development and not split it up and force us to keep it from being
Page 7 of 12
reasonably use that’s what the Simplex case was all about. If the zoning ordinances are
in forced in a manor that reduces and eliminates the possibility of reasonable use of the
land then that’s an unreasonable restriction. It couldn’t be used for the purposes and
therefore would just be left vacant and that’s depriving our clients the reasonable use of
their land. The second point this is not the final subdivision plan it is just to show the
where the zoning line was, that is the only purpose of this plan.
(RE) Is there any thing else on rebuttal side?
No response
(RE) The public portion of the hearing is closed and we will go into deliberation.
(RE) Lets go over the criteria for the variance.
1. No diminution in value of surrounding properties will be suffered.
a. (RL) Building houses in the price range they are proposing to build I can’t
see how that going to affect the property around there.
b. (CW) I would think it will raise the value of others around them their not
building tarpaper shacks. They are not devaluing the land or other
people’s homes.
c. (RL) People tend to build with in the same price range usually when a
neighborhood is developed.
d. (RE) What Bob and Chris are saying is that the price range they are
developing is going to add value of the surrounding property. They are
not going to diminish the value of the surrounding properties.
e. (RE) As a board we vote to say yes that there is no diminishing of the
value with the subdivision in our opinion.
f. (RE) vote was 5-0.
2. Granting the variance would be a benefit with the public interest.
a. Town Attorney Tim Bates; The actual test for a variance is whither the
proposed use will not be contrary to the public interest. Many zoning
ordinances and even NH Supreme Court Opinion’s flipped around as well
as your zoning ordinance that granting the variance would be a benefit to
the public interest that is a very different test. The correct test is that will
not be contrary to the Public Interest. The Supreme Court finally
untangled that confusion and said very clearing that granting the variance
would not be contrary to the Public Interest.
b. () I can’t see how that hurt the Public Interest.
c. (RE) As a board we vote yes. This development would not be contrary to
the Public Interest. Which is what the intention is.
d. Town Attorney Tim Bates; Is that generally because of the facts and
reasons set out in the memorandum you find that those are persuasive
enough for you?
e. () Yes, Pat has stated several reasons that makes this is an upscale
development and showed that is going to be a quality project that has to be
in the public interest.
f. (RE) vote was 5-0.
3. The zoning restriction has applied to the property interferes with the reasonable
use of the property considering the unique setting of the property in its
environment.
Page 8 of 12
a. () The land is unique since most of it is residential and also it is mostly
wetlands and can’t be used as commercial land.
b. (RE) As a board we vote because of unique setting of the property and the
surrounding property is all residential as well and also adds uniqueness to
the property as well
c. (RE) vote was 5-0.
4. No fair and substantial relationship exists between the general purposes of the
zoning ordinance and the specific restrictions on the property.
a. Town Attorney Tim Bates; If that corner of the property continues to be
restricted to light industrial/commercial are you going to have light
industrial/commercial there?
b. () It is not going to have because everything around it residential.
c. (CW) If you look at pages 3 and 4 of Attorney Patrick Wood’s
memorandum especially the first paragraph it states it is clear that no fair
and substantial relationship exists between the general purposes of the
industrial and commercial purposes of the zoning ordinance.
d. (RE) vote was 5-0.
5. The variance would not injure the public or private rights of others.
a. (CW) If you look at page 4 of Attorney Patrick Wood’s memorandum the
third and fourth paragraph.
b. (RE) vote was 5-0.
6. Granting the variance would permit substantial justice to be done.
a. () By granting this it would take the pressure off Shaw Road.
b. (RL) I see another aspect that would be permitting it would be allowing
substantial justice to be done in that the property rights of an individual in
this case would be respected where there is no reason to disrespect them.
c. (RE) vote was 5-0.
7. The proposed use is not contrary to sprit of the ordinance.
a. () Rural area in there and my interpretation of the ordinance is to be that
they want to keep that as Rural Area. They seem to be doing that.
b. (RL) They are fitting in with what the ordinances are for a suburban
ordinances are.
c. (RE) vote was 5-0.
(RE) We need to vote on the three additional conditions granting the governing of
variances.
1. The application of this Ordinance would deprive the owner of such premises of its
reasonable use and would impose a hardship not shared by other premises within
the same zoning district.
a. (RE) We have already been answered and addressed it in article 7 and the
vote was in the affirmative.
b. (RE) How do you each vote?
c. (RE) We all have voted yes to that.
2. The specific request is the minimum variance that will grant reasonable relief to
the owner and is necessary for such reasonable use and has satisfied all the
requirements of subsection 2, above.
a. (RE) This is again a restatement of article 7.
Page 9 of 12
b. (RE) How do you each vote?
c. (RE) We all have voted yes to that
3. The request I in harmony with the spirit of the ordinance, the intent of the
comprehensive plan and Master Plan of the Town, and will preserve the health,
safety, welfare and character of the zoning district.
a. (RE) This is again a restatement of article 7 except with a little more
clarification.
b. (CW) I want to clarify that I think in the terms with the intent of
Compensative Plan and the Master Plan of the Town, I think using that as
residential is within keeping with the adopted Master Plan for the Town of
Pittsfield.
c. (RE) How do you each vote?
d. (RE) We all have voted yes to that
(RL) I make a motion that we approve the variance.
(CW) Second
(RE) All in favor? Aye 5 – 0 in favor. Motion carries
Break
(RE) Back in section at 8:20 PM
Considering a variance for Dan Daley of 52 Old Dump Road, Northwood, NH 03261,
concerning a property located at Old Colony Road, Pittsfield, NH 03263, (Tax Map R19
Lot 18) for a variance to allow an In-Law Apartment in a Rural Zone.
(CW) The lot is 81 acres.
Dan Daley; We are building a split-level home it 40 by 30 with the down stairs finished
for my parents.
(RE) Does any one have any thing for?
No Response
(RE) Does any one have any thing against?
() This in-law apartment is for your parents?
Dan Daley; Yes, It is.
() Is it proper to put a stipulation that is to be used only for family members and will not
be a rental property.
(RE) The public portion of the hearing is closed and we will go into deliberation.
1. No diminution in value of surrounding properties will be suffered.
a. () He stated that he is going to build a single family home.
b. (CW) Separate entrance?
c. Dan Daley; Yes
e. (RE) How do you each vote?
d. (RE) We all have voted yes.
2. Granting the variance would not be contrary to the Public Interest
a. (RE) The wording is being changed on the advise of Town Attorney Tim
Bates as the Supreme Court has made a ruling on it.
b. (RE) How do you each vote?
c. (RE) We all have voted yes.
3. The zoning restriction has applied to the property interferes with the reasonable
use of the property considering the unique setting of the property in its
environment.
Page 10 of 12
a. (RE) How do you each vote?
b. (RE) We all have voted yes.
4. No fair and substantial relationship exists between the general purposes of the
zoning ordinance and the specific restrictions on the property.
a. (RE) How do you each vote?
b. (RE) We all have voted yes.
5. The variance would not injure the public or private rights of others.
a. (RE) How do you each vote?
b. (RE) We all have voted yes.
6. Granting the variance would permit substantial justice to be done.
f. (RE) How do you each vote?
g. (RE) We all have voted yes.
7. The proposed use is not contrary to sprit of the ordinance.
a. (RE) How do you each vote?
b. (RE) We all have voted yes.
Additional conditions granting the governing of variances
1. The application of this Ordinance would deprive the owner of such premises of its
reasonable use and would impose a hardship not shared by other premises within
the same zoning district.
a. (RE) This redundant same as article 7.
b. (RE) How do you each vote?
c. (RE) We all have voted yes.
2. The specific request is the minimum variance that will grant reasonable relief to
the owner and is necessary for such reasonable use and has satisfied all the
requirements of subsection 2, above.
a. (RE) How do you each vote?
b. (RE) We all have voted yes.
3. The request I in harmony with the spirit of the ordinance, the intent of the
comprehensive plan and Master Plan of the Town, and will preserve the health,
safety, welfare and character of the zoning district.
a. (RE) How do you each vote?
b. (RE) We all have voted yes.
(CW) I move that we approve the variance for an in-law apartment with the subject to the
condition that it not ever be used as a rental apartment. If that be the desire then the
applicant come back to the board for reconsideration of the variance for that purpose.
(RL) Second
(RE) All in favor? Aye 5 – 0 in favor. Motion carries
(RE) Reopen the public hearing.
Considering a variance for Richard Smyth of 329 Catamount Road, Pittsfield, NH 03263
– 329 Catamount Road, Pittsfield, NH 03263 (Tax Map R23 – Lot 18) for a variance to
allow an apartment in a Rural Zone.
Robin Smyth; We own a home on Catamount, we don’t plan on building anything. We
have a home, barn and a section between the barn and home. The bedrooms are already
built what we are trying to do actually is add a kitchen and a bathroom to make an
apartment for a charitable operation.
(RE) Will you explain what you mean by a chartable operation?
Page 11 of 12
Robin Smyth; What we have done in the past is help single moms or what ever. Just help
them get themselves back on their feet and not be a burden on society. Help them get
their G.E.D’s or jobs. Give them more privacy. We don’t want to change the look of the
house. It is not for profit or anything.
(CW) Are you charging them rent?
Robin Smyth; We kind of work on a person to person, depending on if it is a short term
or long term, We ask them to contribute to the household bills. But, thus far we have not
taken in any rent or like that.
() You are not considering this as a rental?
Robin Smyth; No
(CW) It is not really a commercial operation then is it?
() They are accepting money.
() I have a question. It says we would like to accommodate a small family with Section 8
housing now they pay rent.
Robin Smyth; We have not taken money in the past, but the particular individual we are
considering she now does have Section 8 Housing.
Robert Smyth; We would be charging rent but not at the full market value.
(CW) How many people would you have at one time is it one family unit?
() How many will the maximum be?
Robin Smyth; The family we are considering now is a single women with a 5 year old
and baby.
(CW) In this place between the home and the barn where you are considering doing this
has how many bedrooms?
Robin Smyth; Two bedrooms
(CW) You said long term and short term.
Robert Smyth; One week to six months
() I am comfortable with it except for the Section 8 Housing, as this requires inspections
and one year leases.
Robert Smyth; I am not sure my house would pass Section 8 Housing.
() The issue as we as a board are trying to wrestle around with is are you going to be
doing something that is a commercial adventure? Renting property because that zone
doesn’t allow it if is something that is not your intent then with doing it.
() What defines for profit and not for profit?
(HF) If there is no lease and no rent you have a legal right to have people come and stay
at your house as long as you want without any permit, if this is done strictly as a
charitable operation. The minute any numeration of cash or so fourth passes hands then
it becomes a rental unit, which does require the variance. So if they choose to continue
doing this with out changing the occupancy they have that right, it would do so at their
expense and there is no way to do that. It becomes very difficult from code enforcement
standpoint to verify what is going on. So, I would much rather see this board approve or
deny this then leave it as well go ahead because I have no way of verify what is
happening whether that they are in fact in compliance.
() Whether we approve or denied wouldn’t changed the statement at all, if they want to
take people for per gratis they could do that.
(HF) For per gratis they could do that absolutely.
Page 12 of 12
(RE) The choice is yours, you can continue with the application if you want or you can
withdraw it at this point and do as Hank suggested.
(HF) If you do withdraw it without prejudice then you are allowed to come back again
and reapply. If you do not and you continue with the hearing and the board votes in the
negative you have a two year period that you must wait before bring the same issue back
again. Just so you understand your rights with the board.
Robin Smyth; So I am clear on this, we are in fact applying to put a bath and a kitchen in.
(HF) If you are building a separate apartment from a building standpoint I have to treat it
as an apartment. I can’t allow you to build an apartment even if it’s for your brother to
move in. But if you do it within the existing house and don’t make it a separate
apartment, you have a legal right to do that. You just can’t make it have a separate
entrance and a separate anything. You can’t make it an apartment, you can incorporate it
into your own house and that’s OK, I can give you a permit to do that but I cannot let you
build an apartment even if you tell me that you aren’t renting it. It still fits the
classification of an apartment under the building code.
(RE) Do you see the difference in what he?
Robert Smyth; We would like to withdraw the application with out prejudice.
Considering a variance for Brandon Gudia – 81 Pleasant Street, Chichester, NH 03258 –
Barnstead Road (Route 107), Pittsfield, NH 03263 (Tax Map R4 – Lot 009) for a
variance to allow 2 additional apartments for Residential Use in a Light.
(HF) Postpone till 7 PM, July 31, 2003
Adjournment:
(RL) I make a motion to adjourn the meeting.
(PM) Second
(RE) All in favor? Aye 5 – 0 in favor. Motion carries
Meeting adjourned