ZONING BOARD OF ADJUSTMENT
May 12th, 2010
Members Present: Dan Beers, Dave Carney, Hunt Dowse, Betty Pels, Linda Renna, Alison Rossiter, and Linda Coughlan, Secretary
Others Attending: John Jordan, Select Board Rep., Phil Mathewson, Robert Kierstead, Jim & Pam Hall, Jack Roper and Jeff Wilder
7:00 P.M. – The Board met at 7:00 P.M. before the hearing at which time they voted unanimously to approve the minutes of the October 28th, 2009 meeting. Alison read a letter from the Commissioner of the NH Department of Agriculture State dated August of 2009 regarding the Cornucopia Project. The letter stated that the they believed the Cornucopia Project's activities were clearly consistent with the statutory definition of "farm" and "agriculture", as defined in RSA 21:34-a. She noted that the project has since found a suitable plot of land for their project. Dave Carney was welcomed as a new alternate member, having been appointed by the Select Board recently.
Hunt handed out information on HB 446 that Jon Grosjean had brought back from the Planning & Zoning Conference he had attended. Hunt said the legislation eliminates the two types of variances, use and area. The legislation affirmed the Simplex analysis as the basis for meeting the hardship criteria for any variance.
7:16 P.M.– Jack & Sue Roper Hearing – Represented by Mathewson Companies
Alison called the Roper hearing to order and read the hearing notice and introduced the Board members. She noted that the fees had been paid; the notice had been sent to abutters, published and posted as required. Alison explained the procedures that would be followed for the hearing beginning with the applicant's testimony.
Phil Mathewson of Mathewson Companies, came forward as representative for Jack & Sue Roper. He began by stating he is a licensed septic installer and evaluator. Phil said the Roper's septic system had been installed in 1984 and was now in failure. He said the state defines failure as failure to treat and failure to contain. Phil said this system is not doing either. Phil said Meridian Land Services has prepared the plan and the Wetland Scientist for the project is Christopher Guida. He gave the Board copies of the septic plan for review. Phil pointed out the small area that is considered to be in the Wetlands Conservation District.
Phil read the testimony as presented in the application:
The request is for a variance to Article 10.4 to locate a septic system closer than 125 feet from Wetland Area Conservation District. The current septic system is in failure and needs to be replaced with an updated system per NH Certified Septic System Evaluation Criteria. Due to the small lot size, the most suitable location to install the new system is within 125 feet from Wetland Area Conservation District.
1.) The proposed use would not diminish surrounding property values because:
There will not be a noticeable difference to the surrounding properties, but the existing failed system could diminish surrounding property values if not replace in a timely manner.
2.) Granting the variance would not be contrary to the public interest because:
The existing system is in failure. If the system is not replaced with an updated system, it could pollute existing wetlands and wells.
3.) Denial of the variance would result in unnecessary hardship to the owner because:
a) an area variance is needed to enable the applicant's proposed use of the property given the special conditions of the property:
The lot size is very small (.73 acres) The proposed system has been designed in the furthest point possible from Wetland Area Conservation District.
And b) the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance:
The lot size and location of house dictate the only option for the location of the new system.
4.) Granting the variance would do substantial justice because:
It is necessary for occupancy to have a septic system that meets current standards.
5.) The use is not contrary to the spirit of the ordinance because:
The spirit of the ordinance is to deter new development, especially in small lots. This variance
is for an existing building.
Phil added that they plan to abandon the existing leach field and that the new field will be reduced in size. He said he has met the state setbacks but will be asking them for a waiver due to the slope.
Alison asked the Board if they had any questions or comments.
She started by asking Phil if he thought there was any place on the lot to place the system that would meet the 125 foot setback. Phil said no there wasn't. She asked if there was any new system design that would allow for a smaller field. Phil said there are systems that have smaller fields but the new technology has many working parts and if any of those parts fail, the system fails. He added that even with a smaller field, they still wouldn't be able to meet the setback.
Hunt asked Phil if he saw topography features that would make the lot unusual. Phil said yes, there is the substantial drop off in the slope; there are wetlands as well as the small acreage of the lot to consider. He said there is also a power line running through the property.
There being no further comments or questions from the Board, Alison opened the hearing to the public.
Jeff Wilder asked Phil to clarify the location of the wetlands on the map. Phil pointed out that area and Jeff noted it was a very narrow area. Jeff asked if the system had a filter on the outlet of the tank and Phil said yes it did have filter. Phil said there is an electrical alarm if the filter should become clogged. Jeff said he had no problem with the plan, he thought it looked great.
There were no comments or questions from the public and Alison closed the public portion and the Board moved on to review each of the criteria for the variance.
1) The consensus of the Board was that this criteria had been met as shown by the testimony and the plan provided. If the system were not replaced, it could diminish surrounding property values.
2) The Board felt this criteria had been met as shown by testimony and the plan provided. Granting the variance would not be contrary to the public interest. It was in the public interest to have the failed system replaced.
3) The Board referred to the criteria under the new RSA 674:33, 1(b)(5) to see if these conditions were met. If the criteria under Section (A) was not met, the Board would need to move on to Section (B).
(A) For the purpose of this subparagraph, "unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other properties in the area:
The consensus of the Board was that this lot did have special conditions with the wetlands, small lot and the slope.
(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property;
The consensus of the Board was that this criteria had been met as shown by the testimony and plan provided.
(ii) The proposed use is a reasonable one.
The consensus of the Board that this critera has been met as shown by the testimony and the plan provided. The system is in failure and must be replaced. The system has been designed in the furthest point possible from the Wetland Area Conservation District.
The consensus of the Board was that the criteria under Section (A) had been met and they wouldn't need to consider Section (B).
4) The consensus of the Board was that testimony showed that this criteria had been met.
It is necessary for occupancy to have a septic system that meets current standards. There would be a gain to the public to replace a failed system with the new one.
5) The consensus of the Board was that testimony showed that these criteria had been met.
Dave Carney said it was in the spirit of the public to have a newer, more efficient system that was smaller and further away from the wetland area.
Alison asked the Board if they were ready for a vote which they were. Hunt moved that all five of the criteria for an area variance have been met as shown by testimony provided and that the Variance to Article 10.4 be granted. Dan Beers seconded the motion and the Board voted unanimously to approve the application. Alison closed the hearing and advised the applicant of the 30 day appeal period during which time someone could come forward to request the hearing be reopened but only if they had new information.
Dan LaPlante, who had recently moved on to the Planning Board, stopped by to thank the Board and say they he had enjoyed his time while serving on the ZBA.
There being no further business, the meeting adjourned at 8:10 P.M.