March 10, 2004 Minutes

Pittsfield Zoning Board

Pittsfield, NH 03263
Minutes of Public Meeting

March 10, 2004

The meeting was called to order at 7:02 PM.

Members in Attendance:
Roll Call was taken. Robert Elliott (RE), Chair, Susan Muenzinger (SM), Robert Lincoln (RL), and Christine Westerberg (CW) were present. Glenn Porter was called to sit in for Paul Metcalf (PM) who will be absent until April.

Public Hearing, Thompson Road, AHG Properties:
Public Hearing to consider a Variance Application to allow sixteen (16) Detached Single Family Condominium units in the Rural zone where twelve are allowed by the Zoning Ordinance. (Tax Map R44 – Lot 1)

Public Hearing, Thompson Road, AHG Properties:
Public Hearing to consider a Special Exception to allow a “Cluster” style development for 55+ residents in the Rural zone. (Tax Map R44 – Lot 1)

(RE) read the Public Hearing notice for all present and opened the Public Hearing at 7:05 PM. The abutters were duly notified by Certified Mail and copies were posted as required. Forrest Sell spoke on behalf of AHG Properties who is seeking to create a sixteen (16) Single Family Condominium Complex in the Rural zone. They are requesting a Variance to allow four (4) extra units over the 12 allowed by the Zoning Ordinance (ZO) and a Special Exception for a Cluster development on the property. He presented two options for comparison. The proposed 16-unit plan would use seven (7) acres leaving twenty (20) acres reserved as open space. The land is not for sale (approximate land value $25K with a forecasted revenue of $400K). The comparison 12-unit plan that would meet the ZO requirements and would use all 27 acres with each unit on a 2-acre parcel (The land would be for sale with the approximate land value $50K with a forecasted revenue of $600K). The Applicant would prefer to use the proposed 16-unit plan as a better project for the town although it would bring in less revenue to the Applicant. The road length is the same for both projects. The proposed condo fee for the 16 unit plan is $197/month, pushing the envelope for senior residents, making that payment over the mortgage. With 12 units, the fee is forecasted at $262, a less marketable option. The Tax base for the 16-unit project would be $3million with $100K tax revenue for the Town. There would be no children, privately maintained roads and limited use of public services.

Andrew Sullivan, also representing AGH Properties as their attorney reviewed their criteria arguments aloud. He predicted that this case would end in appeal either way so he wanted to set a record. He referenced the Simplex and Rancort v. Manchester cases where a Variance was granted because the proposed had a reasonable use. He argued that similarly, this case proposes a reasonable use for the property. Mr. Sullivan submitted a letter from Wells Appraisal Services that stated that the proposed project would not cause a diminuation of value or marketability of the surrounding properties. He expelled any rumors that this project may be changed into Section 8 housing (Rich Hunsberger was asked to corroborate that James Pritchard called him stating that this was a possibility). Section 3.5.4 of the Proposed Stage Coach Station Condo Document on Age Restriction was submitted. If plan is approved this will prevent Section 8 housing from being allowed. In addition, these units would never be approved for Section 8 by the State. He argued that Density is not defined in the ZO, but Rural Zone is defined to accommodate residential uses in the area. The Variance would be a value to the public interest as there is a demand for 55+ housing to accommodate the growing number of elderly residents throughout the state. This project will have a heavily treed buffer around the community and will not affect the health or safety of the town. There are five existing houses surrounding the lot. It will be virtually invisible and pose minimal monetary strain on the town. The environmental impact is minimal with less open space being displaced. He argued that no fair and substantial relationship exists between the General purposes of the ZO. It is a reasonable proposed use, displacing less then one-third of the area. Four (4) extra units is the minimum needed to make it marketable to proposed buyers.

(RE) opened the floor to public input starting at 7:40 PM.

Arguments for the project:

Nancy Bates (39 Range Road, Pittsfield) spoke in defense of the project. Arguing that the project was denser then desirable, but would have a much lower financial impact on the Town. The plan is beautifully laid out. Residents are getting older and this is a viable alternative to living in a convalescent home. Elderly couples do not need two acres of land to maintain. The cost would be less for the highway department with no impact on the school system. Taxpayers would be impacted more if the 12-unit plan were used.

Rich Hunsberger (Catamount Rd, Pittsfield) also supported the project as positive for the town. He stated that projects like these have been successful in other towns.

Arguments against the project:

James Pritchard (52 Needham St, Norfolk, MA) spoke on behalf of the Mary H. Pritchard Trust that has abutting property. He worked on the campaign to re-elect Donna Keeley as Selectman by making calls and spoke to Mr. Hunsberger but denied propagating rumors that the project would become Section 8. He reference the Wells Appraiser letter citing that no mention was made as to the affect the project would have on the neighboring Stockman property. He stated that it would go through it. (RE) asked Mr. Sell if that was true. Mr. Sell denied that and Mr. Pritchard rescinded his statement confirming an error of statement. Mr. Pritchard moved on to state that added traffic in front of the Stockman lot would be problematic. He submitted a Memorandum In Opposition to this Hearing that was prepared by his attorney who was unable to attend. He argued that Density is defined in ZO Article 3 that has a density ratio of dwellings to land area. He referenced ZO Article 8 on Cluster Development on pg. 16 stating that if the calculation is followed, there should be zero (0) density allowed on said property. He cited points from the Memorandum and in conclusion requests that both applications be denied.

Lester Firstenberger (Pittsfield, NH) has not problem with the project but with the rule of law. The purpose of the ZO is more then health and safety in the town as stated by Attorney Sullivan. The Project goes against the Rural character of the town.

John Lenaerts – (Clough Rd., Pittsfield) made a reference to Attorney Sullivan’s statement that this case would end in Appeal either way. He argued that if it was found that the 2-acre minimum was found invalid in that area that would mean it was not valid for the town, which would set a dangerous precedent. He referenced ZO Article 7, the Variance definition and Article 3, the regulation on Strict Application of Density. He argued that the characteristics of the property and location on a non-town road create a hardship that is the result of his subdivision. He stated that the Planning Board warned the applicant that he would be land locking the property when the subdivision was granted and stated that the Applicant claimed no plans to develop the back area.

Melissa Bicknell (Governors Road, Pittsfield) asked if the 12-unit proposal could actually happen right away. The Board maintained that it would need to go before the PB but that further ZBA hearings would not be required.

Bill Miskoe (Pittsfield, NH) – a Planning Board member speaking as a citizen stated the applicant would have to upgrade the road to a class five with PB approval, and a presentation to the Select board would be needed, but no variance from the ZBA would be needed.

Anton Pritchard – also representing Mary H. Pritchard Trust from Norfolk MA stated that the road would have to be voted upon by the town residents that neither the ZBA nor the Select Board can do it alone. He acknowledged there were 252 feet of Frontage on a Class VI highway (Thompson/Tan Road) and that the PB denied the Subdivision sending the applicant to the ZBA for a Variance.

Rebuttals for the project:

Mr. Sell – Stated that he never said he would not use the back property when he received the Subdivision from the PB. He is not land locked. He does still own the three front lots on Thompson Road if he needs to. He does not want to destroy the land to make money.

Mr. Sullivan – stated that roads and subdivisions are under the ZBA jurisdiction and that the Pittsfield Town Administrator stated at a previous meeting that the road was actually declared a Town Road some years ago. He argued that the 12-lot plan is not a threat but solely used to offer a comparison.

Rebuttals against the project:

James Buatti (Shaw Road, Pittsfield) – stated that to his understanding there was no compelling reason made to exceed the density regulation. Marketability was not a good reason. The applications should be denied.

The rest of the arguments made at this point were already presented and reiterated during the rebuttal. They spoke to setting precedents, the need to see actual numbers and the added burden on traffic on the road.

Rebuttals for the project:

The arguments made at this point were already presented and reiterated during the rebuttal. They spoke to paying attention to condo costs for the community residents, looking at Density vs. Impact and town benefits.

(RE) closed the Public comment section at 8:36 PM and a break was taken. The Board Discussion began at until 8:45 PM. They determined that Mr. Hunsberger has represented Mr. Sell in a few Real Estate acquisitions. The cost per unit will be in the $180-200K range, depending on square footage. All units will be 2 bedroom units. It is forecasted that only 30-40% of the buyers will be single people, maybe less, most will be couples. The marketability of the 12-unit project verse having 4 more units was questioned by (SM). Mr. Sell responded that he could still build the project with 12 units, but the condo fees would be about $262, which he said might be too high for retired or semi-retired people. They asked questions of the public when needed. Lester Firstenberger made some legal suggestions during the non-public session that were accepted by the Board. The Board then reviewed the Variance Criteria. The Board withheld their vote until the end:

A. All members agreed that the buildings would cause no diminuation in the value of surrounding property but added traffic might. In the long run the impact would be good.

The majority of the members maintained that granting the Variance would not be contrary to public interest finding the 12-unit plan to be contrary and that Public interest is more than just the ZO. They felt that the public interest spans beyond just the definition of zoning, only being one factor, the variance being to relax the zoning allowing for changes or modifications. The minority members sited that the Zoning Ordinance represents the public interest and changing the zoning could be problematic. Past projects that met the 2-acre minimum would be undermined and future projects could be would then be affected.
The majority of the members maintained that strict application of the density requirement of the Cluster Development ordinance does interfere with the reasonable use of the property, considering the unique setting of the property in its environment. Minority members feel that giving 4 more units may impact the rural character of the area. Not crossing the wetland is nice but does not justify the extra units: one minority member stated that the applicant did not demonstrate that the property was unique in its setting, noting that there are other parcels in the area with similar characteristics of topography and wet areas, in fact there are areas all over the town of similar character, hill and wet in the 2-acre Rural zone which is approximately 85 percent of the land zoned in the town. The density restriction was felt not to be unreasonable since it was equally applied throughout the neighborhood and town. A separate adult ordinance was said to be a far more appropriate way of allowing this type of housing than through a variance of questionable hardship. The members argued back and forth about the project not fitting the ZO and interfering with the reasonable use.
The majority of the members maintained that no fair and substantial relationship exists between the general purposes of the ZO and the specific restriction on the property because it is for elderly residents and potentially fewer people would inhabit the 55+ age restricted community then in the single family homes. The adverse argument spoke to preventing undue over population and zoning everyone the same. It was pointed out that the Variance appeared to be based on the marketability of the project, which leads to the financial aspect rather than the land.
All members agreed that the Variance would not injure the public or private rights of others.
A majority of members felt that granting the Variance to allow the four extra units would permit no substantial justice to be done. Public gain would outweigh that of the individual. It is good project, but not for that area.
The majority of members felt that the proposed use is not contrary to the spirit of the Ordinance. The minority members felt Spirit of the Ordinance is to keep it rural and that 16 homes may not be considered rural. Rural equals 2-acre minimums with 200 feet of frontage. Article 2, section 3 cited.

6 out of 7 of the criteria were met. All seven need to be met to pass.

(RL) made a motion to deny the AHG Property Application for a Variance for the property located at Thompson Road.

(CW) Seconded the motion

4-1 voted in favor. Motion carries. The Variance was denied.

Denying the Variance make the Special Exception Application a moot point. The case was dropped.

Public Meeting, Request for A Rehearing, Mary H. Pritchard Trust:
Public meeting to consider the Administrative Appeal form the Planning Board Decision Approving the AHG Properties Subdivision. (Tax Map R44 – Lot 1)

The Board started to discuss the request at 10:05. They correct the agenda stating it is a Public Meeting not a Hearing. Attorney Sullivan submitted an Objection to the Motion to Rehear. The Pritchards reminded the Board that this request is regarding the three-lot subdivision in general, the corner lot and its issue on contiguous frontage in general. The time line was missed the first go around so this is an attempt to correct the error. They fee that RSA 674:41 was violated.

The Board deliberated and found that no new information was submitted and decided to not re-approach Town Counsel who already reviewed the case.

(CW) made a motion to not rehear the case based on the fact that no new information was submitted.

(SM) Seconded the motion.

5-0 voted in favor. Motion carries. The motion was denied.

Review of Minutes:
(SW) Made a motion to accept the February 12 Meeting Minutes with corrections.

(RL) Seconded the motion

5- 0 voted in favor. Motion carries

Reports:
Hank FitzGerald proposed the suggestion made by the Planning Board to create a Joint Committee to develop a list of ZO/Subdivision Regulation updates. The PB has nominated 3 members to be on the committee and is looking for 2 members from the ZBA. When the list is created help will be solicited from the CNHRPC to write the updates. Funds to pay for this assistance could be raised. The ZBA members will take that under advisement and get back to the PB.

Adjournment:
(RL) Motion to adjourn the March 10 ZBA meeting.

(SM) Seconded the motion

5-0 voted in favor. Motion carries

Meeting adjourned at 10:36 PM

Respectfully Submitted by,

Dina S. Condodemetraky, Secretary

The March 10, 2004 minutes were approved with amendments submitted by S. Muenzinger at the May 13, 2004 meeting.

Chair _____________________________________________ Date _____________

Secretary __________________________________________ Date _____________