17
DUNBARTON ZONING BOARD OF ADJUSTMENT
MONDAY, OCTOBER 2, 2006
TOWN OFFICES 7:00 P.M.
The regular monthly meeting of the Dunbarton Zoning Board was held at the above time, date and place with Chairman John Trottier presiding. The following members were present:
John Trottier, Chairman
John Herlihy, Vice Chairman
Alison Vallieres, Secretary
David Nault
Ron Slocum
Wayne Bracy, Alternate
Dan DalPra, Alternate
Leo Martel, Alternate
Other Town Officials:
Kenneth Swayze, Admin., Planning and Zoning Department
Kyle Parker, Building Department
Meeting Posting:
The Chairman verified with the Secretary that the meeting notice had been posted in three public places throughout the Town and published in the Concord Monitor for one day. In addition, the notice was posted on the Dunbarton Web Page.
APPROVAL OF PREVIOUS MONTH’S MINUTES: Monday, August 14, 2006
John Trottier amended the minutes on Page 2, fourth paragraph to read as follows: “Mike Shearin stated he took the old shed down and reconstructed it on the original footprint but made it smaller.” (replaced the word “foundation” with “footprint”)
MOTION:
David Nault made a motion that the Dunbarton Zoning Board accept the minutes as amended by John Trottier of the previous meeting of Monday, August 14, 2006. Ron Slocum seconded the motion. The motion passed unanimously.
7:00 p.m. – Continued Public Hearing regarding a request from David A. Nault for a Variance to Article 4, Section C. (Non-conforming lots) of the Dunbarton Zoning Ordinance to allow him to construct a house on a pre-existing 1970 lot (B6-1-8) in the Town of Dunbarton without frontage on a Class V road with an easement and/or right of way located on Kelsey Road in the Low Density District in Dunbarton, NH.
At this point in the meeting, David Nault stepped down from the Board because he was the applicant.
David Nault stated that he had come before the Board previously with this request and was told by the Zoning Board of Adjustment that he must have the lots shown on a Certified Plot Plan. David Nault presented a Certified Plot Plan of the three lots (B6-1-7, B6-1-8, and B6-1-9) done by Dahlberg Land Services dated August 31, 2006. (attached) He also presented a letter written by his Attorney Jed C. Callen regarding the history of the deeded right of ways for the three lots. (attached)
David Nault also presented a letter from the Dunbarton Fire Chief stating that the proposed driveway widths of l8 feet and 14’ by David Nault at the end of Kelsea Road on Lots B6-1-7, 1-8 & 1-9 would be acceptable to the Dunbarton Fire Department. (attached)
Test pits were done on all three lots with Test Pit Information shown on the Certified Plot Plan. Did two test pit locations on the two larger lots to show two proposed house locations.
D. Nault presented a blowup of the existing right of way. There will be a common driveway going to the lots. The right of way will be 18 feet wide at the curved section and reduced to 14 feet width because it is a cart road access.
Ron Slocum asked what is on either side of the road. Where will the plowed snow go?
David Nault stated that the whole curve of the proposed driveway is all open area. This is a driveway not a road.
Wayne Bracey asked how high the stone walls were.
David Nault stated one of the stone walls was 2 feet high but wide and the other was fairly high.
David Nault presented a copy of the driveway permit he had received from Jeff Crosby, Town Road Agent. (attached) Jeff Crosby has done an inspection of the entrance and the culvert location. The driveway will be constructed according to Town Standards.
Dan DalPra asked if there were any wetlands in the area of this.
David Nault noted that the cart road was already 1 ½ feet above the grade. I am going this route instead of crossing the wetlands area on the larger lot.
David Nault presented an older map of the property done in 1988 by John Hills Engineering showing the lots when they were owned by Braverman and Gildersleeve along with the deeds. David Nault stated he had first purchased the 10.6 acre lot from his grandfather, Rudolphe Belliveau. He purchased the other two lots after. He stated he has been paying taxes on these three lots as buildable lots since he purchased them. He presented a copy of a deed, Book 348, Vol. 582, dated 1936, where it states “Reserving a common cart road at all times for the use of those owning land beyond these premises.” (attached) In 1988, when Braverman lot was purchased, they decided to clarify the location of the right of way on the previous owner’s property (B6-1-5). The way the right of way is shown on my plan is the way it was set up in 1988. Prior to that date, all three right of ways were on the cart road right of way. This is how it was set up in 1988. All the lots were in separate ownerships in 1970 so the lots do not have to be joined. We have done deed research back until 1925. Access is provided by the Guiney Lot. The access was redefined in 1988.
John Herlihy asked if the original right of way was ever discontinued when the new right of way to the 20 acre lot was established.
David Nault stated the right of way was never discontinued, it was only better defined by a metes & bounds description. At no time, did the right of way discontinue. There was never a time when there was not a right of way. The right of way only shifted.
Attorney Callen stated that in checking the chain of title, at no time, did these lots not have a right of way to them. They all had a right of way prior to 1925.
At this point in the discussion, John Trottier asked Ken Swayze, Building Department, what his interpretation was. Ken Swayze stated that he (David Nault) can access these lots via the right of way. When you change the right of way, he still has the right to access. The right of way will be described in metes and bounds.
David Nault stated that the Dunbarton Zoning Board of Adjustment agreed at their June 18, 2001 Zoning Board of Adjustment Meeting that Bradford and Stephanie Klements did not need a Variance for the same situation and that the use was covered specifically within the Ordinance under the Section C. relating to Nonconforming Lots. According to the State RSA, I have to come before the Zoning Board, so this is why I am here.
At this point in the discussion, John Trottier, Chairman, stated that he would now open the other two Public Hearings for the David Nault Properties because of the times posted in the Public Notice:
7:15 p.m. – Continued Public Hearing regarding a request from David A. Nault for a Variance to Article 4, Section C. (Non-conforming lots) of the Dunbarton Zoning Ordinance to allow him to construct a house on a pre-existing 1970 lot (B6-1-7) in the Town of Dunbarton without frontage on a Class V road with an easement and/or right of way located on Kelsey Road in the Low Density District in Dunbarton, NH.
7:30 p.m. – Continued Public Hearing regarding a request from David A. Nault for a Variance to Article 4, Section C. (Non-conforming lots) of the Dunbarton Zoning Ordinance to allow him to construct a house on a pre-existing 1970 lot (B6-1-9) in the Town of Dunbarton without frontage on a
Questions from the Board:
Ron Slocum asked about the trail that shoots off to the right. What about that? A barway through the stone wall is located across from the old cart road entrance. Does this mean this continues off onto another parcel?
David Nault stated as far as he knew there was no other right of ways to other parcels.
Attorney Callen stated that if, in fact, Mr. Guiney agrees to this arrangement, we would be willing to extinguish the old right of way. The choice is less intrusive.
David Nault stated he has researched every surrounding property. We have gone through the burden of proof. My attorney has done an entire chain of title to 1925 which I can provide the Board if they want.
The Board agreed that they did not need to look at the Title Search.
Abutters were read as follows and noted that all had been notified by Certified Mail:
John and Mildred Moody – Not Present
Kathryn Schumacher – Not Present
Mike Guiney – Present. Stated he had several comments and concerns as follows:
1. Looked at plan and stated that he was not in agreement with the location of the right of way to the two back lots. We are going to end up in court over this. Mr. Nault can put a driveway through his larger lot to these two smaller lots. He has access through his own land. Asked who set the stakes on his property for the right of way. Stated that one of them appeared very close to the barn
David Nault stated that his Surveyor, Michael Dahlberg, had set the stakes according to the plan.
Other Members of the Public:
NONE
The questions to be answered necessary for the granting of a Variance were read as follows by John Herlihy: David Nault answered as follows:
a. No diminution in values of surrounding properties would be suffered;
Answer: Because with a new home on this lot, it would be a more attractive area for families, and raw land is less attractive to finance. Also, these lot sizes fit the Surrounding Area.
b. Granting the variance would be of benefit to the public interest;
Answer: Because a greater taxation on this lot would help the Town maintain the access to this lot which is Kelsea Road.
c. Denial of the variance would result in unnecessary hardship to the owner seeking it;
Answer: Because the owner has been paying taxes as a buildable lot for many years.
d. Granting the variance would do substantial justice; and
Answer: Because by the Town’s Ordinances, this is a buildable lot, and the owner can meet all of the set backs required.
e. The use would not be contrary to the spirit of the Ordinance.
Answer: Because this Board has allowed several lots like this to be built upon in the past and it is a reasonable and acceptable use of this land in a Residential Area.
David Nault stated that as a last note to the Board, my Attorney has researched these lots and once these lots got this cart road access, none of these deeds ever gave up this cart road access. Accessing via my larger lot would require crossing a wetlands. The only reason I would do the wetlands crossing would be if there was no other alternative way to go. If you have the access, use it. All these properties have been under different ownerships in the past. They always had different owners. The owners were Braverman, Rose Dugrenier, Gildersleeve and my grandfather. They have never been under the same ownership until now. The cart path has never been changed.
Judy Stone asked where is Kelsea Road.
The Board stated it was off Montelona Road.
The Public Hearing was closed.
John Herlihy stated that he felt the applicant had met all the requirements of the Zoning Ordinance i.e. as follows: Because with a new home on this lot, it would be a more attractive area for families, and raw land is less attractive to finance. Also, these lot sizes fit the Surrounding Area, because a greater taxation on this lot would help the Town maintain the access to this lot which is Kelsea Road. Because the owner has been paying taxes as a buildable lot for many years, because by the Town’s Ordinances, this is a buildable lot, and the owner can meet all of the set backs required and because this Board has allowed several lots like this to be built upon in the past and it is a reasonable and acceptable use of this land in a Residential Area.
John Herlihy stated these lots have been there with the cart road access before 1925 and are still there. I see no reason to deny the request for a Variance.
John Trottier stated that the applicant has met the burden of proof.
Dan DalPra asked if the applicant has the right to improve the right of way.
The Board noted that any dispute would be a Civil Case and not the Zoning Board of Adjustment.
John Trottier stated the following members would be voting members on this application:
John Trottier
John Herlihy
Alison Vallieres
Ron Slocum
Wayne Bracey, Alternate for David Nault
MOTION:
John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment grant the request for a Variance to Article 4, Section C. (Non-conforming lots) from David A. Nault to allow him to construct a house on pre-existing 1970 lots (B6-1-8, B6-1-7, B6-1-9) in the Town of Dunbarton without frontage on a Class V road with an easement and/or right of way located on Kelsey Road in the Low Density District in Dunbarton, NH as presented and in accordance with all supportive documentation as presented and the Certified Plot Plan submitted by Dahlberg Land Services, Inc. dated August 31, 2006, Job No. 871-01, Client: David Nault.
John Trottier seconded the motion. The motion passed unanimously.
7:45 p.m. – Public Hearing regarding a request from Doucet Family Revocable Trust of 2005, Dawn Doucet, Trustee, (E5-3-16) for a Special Exception to Article 11, Section D. 3. to operate a log sorting business and park equipment on site on 14 Jacqueline Drive in the Low Density District in Dunbarton, NH.
At this point in the meeting, David Nault stepped back to the Board.
At this point in the Public Hearing, John Trottier confirmed the fact that Jacques Belanger was the Surveyor for the applicant. John Trottier made the following statement for the record: