Approved Minutes

Approved

Town of Stoddard

Zoning Board of Adjustment

Minutes of Meeting

September 17, 2020

The meeting was called to order by the Chairperson at 7:30 pm.

The Pledge of Allegiance was led by Jason Kovarik.

Members present: Chairperson Jason Kovarik, Vice Chairperson Franz Haase, Herb Healy, Doug Summerton, Milosh Buckovcan sitting for Bud Record

Members absent: Bud Record

Alternates present:

Others present: Compliance Officer Harry Power, Pixie and Ray Durand, Russell and Kristin Chisholm, Terry LaRouche, abutter via Zoom

Hearing for Variance requested from Article III Section I, by Russell and Kristin Chisholm

Roll call called by Jason. Jason read the rules of Hearings to the audience. The Secretary read the notice of hearing, when and where it was posted and the application. Herb stated Article VI would be more appropriate then Article III, if they are building within the footprint of a structure built prior to the CPO and, they shouldn’t need a variance. Members researched the construction date of the building.

The Chairperson invited Applicant Russell Chisholm, to explain his project. He stated they want to build a kitchen and dining room with a new bedroom in the loft area within the footings of the current deck. A new small deck with stairs will be constructed on the back side of the new construction. A small portion of this new deck does not meet setback requirements. Members viewed the larger map of plans while Mr. Chisholm explained the proposed layout. Herb submitted that a Variance is needed for the new deck but not the footprint area inclusive of the existing deck. He referred to the CPO, Article 6, ( non-conforming lots) section 1-4 particular section 3. Terry Laroche commented she believes the original structure was built in the 1950’s and the deck was added in the 1980’s. Discussion followed whether a Variance is needed for the new building or the new deck. Franz asked if the proposed two level project would be considered expansion of non-conforming property as Article V describes? Franz considers the lot to not be nonconforming as it is big enough to have the a structure built elsewhere on the property. Herb said the lot is non-conforming as it is less than 1 acre. Doug stated the proposed deck falls within a legal area except for approximately 2 feet, according to Chisholm’s map.

The Chairperson invited people in favor of the project to speak. Terry, an abutter, said she actually prefers the new structure as it will give both parties more privacy do to the position of her driveway to the proposed layout. She said the Chisholms currently have room for only 2 people to sit at their kitchen table and she would like to see them have more room and is in support of the project. There were no questions for Terry.

Herb stated that the ZBA hearing on the Chisholm application and any subsequent decision should not constitute precedent for the ZBA with the issue of whether a Variance is needed for conversion of an existing deck. There were no objections from the Chair of other members regarding setting precedents.

The Chair asked for anyone in opposition. No one was in opposition.

Supporting the need for a Variance the Compliance Officer read an email to Attorney Matt Serge regarding the non-conforming building and change in use, which Harry thinks this project is according to RSA 674:19. Attorney Serge responded; because the Supreme Court is protective of nonconforming changes he would not consider this to be a change in use, as long as the changes are not greater than the original design. If the structure is substantially changed it would need a Variance. Harry also quoted case law The Grey Rocks Case. showing why the case needs a Variance. Herb stated he feels constructing a kitchen/dining room where the deck currently is does not constitute a change in use. And is covered under article 5 of the CPO.

The Chairperson asked if anyone had any further comments. Harry commented RSA 674.19 and case law Shop Land vs Enfield: “reading the Zoning Board shall apply to any use or manner that may be substantially different from the original, such as construction of additional floors, which may be prohibited even though there is no extension of the building’s footprint.” Harry feels the Chisholm’s need a Variance for the 2nd floor as the structure will now have more square footage than the original design. Franz asked the status of the Shore land Permit. Mr. Chisholm stated it is in process.

The Chairman called for a motion to close the hearing to public comments. Doug moved, Franz second the motion, all voted in favor to close the hearing. Jason spoke, stating we should vote on the entire project because of the 2nd floor. Franz stated Article 5 does apply to the project and this is an expansion of current use. Article 6 says it would be permitted if it was constructed prior to the CPO. He feels Article 6 needs to be more clear, but that the entire project needs a Variance. Doug feels it needs a Variance as the new construction could be put outside the setback area as there is sufficient area on the lot, even though it would cost more money. The Chisholms countered stating it makes more sense to continue the kitchen from where it is. The new stairs will be on piers. Doug says seeing how the neighbor has no problem with the construction and actually prefers it, he will go with a Variance on the whole project. Herb feels changing the deck into a kitchen is not a change in use and does not require a Variance. Doug feels we are giving a Variance for the increase in square footage of the second floor and the change in footprint with the new deck. The Board then took a vote to determine whether the entire project required a variance or only the portions not in compliance that lay outside the existing footprint. The Vote was 3 to 2 for the entire project needing a Variance.

The Chairperson read the Statement of Reasons to the Board & applicant.

Franz moved to accept the application for Variance as written and grant the Variance, Doug second the motion. The Chairperson took a roll call vote: Doug voted in favor, Herb abstains, Milosh voted yes, Franz voted yes and Jason voted yes. Herb stated his reason for abstaining is we don’t need to grant a Variance for the project as stated on the application. He would support a Variance for the portion of the project involving the new deck. Doug agrees with Herb’s stand but will keep his vote in approving the Variance.

New Business

Jason read Herb’s email dated Tuesday, 9/15/20, which stated that the ZBA did not have authority to grant a Special Exception per Article IV, Sect VII absent a Conditional Use Permit from the Planning Board.  Thus the conditionality we agreed to at the time of the hearing. That was the basis on which my vote to approve was predicated. Jason agreed. The Fibercast decision should have been a conditional decision not a granted decision. The Planning Board has since determined that Fibercast is not a public utility. It is a commercial telecommunication entity and has been granted a Conditional Use Permit with 7 conditions with a sign off included by the Planning Board. Suggestion was made to send the applicant a letter stating that at the time of our meeting we agreed to go forward with the hearing & vote because everyone had been noticed and was present, and to approve the Special Exception on the condition we had authority. The Chairman will wait until after hearing from Herb and the Planning Board Lawyer to decide what action needs to be taken.

Harry stated Beth and Thomas Willey of Marlow, plan to convert their barn to a Pet Resort. They have a large property in Marlow, and the barn is on land in Marlow but, 0.1 acre of their land is in Stoddard. Tax Map 408.14.1. The Marlow ZBA wanted to know if the Stoddard ZBA wanted to be included in the hearing. The Stoddard Board stated we do not have an issue with their project. Harry will relay that information to the Marlow Board.

Minutes

The minutes of August 20 were approved as written. Herb made motion to approve, Doug second the motion, all members approved

The minutes from September 10 were not approved, subject to amendment.

Correspondence/Reports

Review of ZBA budget to date

Reviewed all other bills

Old Business

None

A Motion was made by Doug to adjourn. The Motion was seconded by Franz. The Motion passed unanimously. The meeting adjourned at 9:55 pm. The next meeting will be Oct. 15, 2020 at 7:30 pm at the Stoddard Town Hall.

Respectfully submitted,

Kathleen Ellis

Secretary to ZBA