Meeting Minutes - ZBA & PC
Town of Leicester
Planning Commission & Zoning Board of Adjustment Minutes
Wednesday, June 10, 2009
*Unapproved*
** See subsequent minutes for any changes
Members Present: Gerry Flint, Chair ZBA, Donna Swinington, Chair PC, Tim Johnson, Pete Fjeld
Members Absent: Shelley Glassner
Others Present: Kate Briggs, ZA (left before hearing), John Hughes and Sandra Trombley, Secretary
Call to Order: Meeting of the Planning Commission was called to order at 6:03 by PC Chair and roll call.
Planning Commission meeting with Kate Briggs, ZA as guest was scheduled to go over some administrative details that Kate wanted to talk about.
Kate explained that she should have met with the Planning Commission and they should have interviewed her before she was appointed by the Selectboard. Kate wanted to talk about ways that she and the Planning Commission can work together. Her understanding of their respective roles is that she plays a staff role to support what the Planning Commission does, but it’s not a policy role. She’s not going to over step the policies. It’s not the content of our by-laws, but she can certainly help in the mechanics of getting them revised to do certain things so we can move things along. In that respect, Kate stated she is, like the Board, a Leicester resident and a volunteer and more than happy to put in a lot of time in getting things done that we all know need to be done that maybe we don’t have the resources to do.
Donna explained that years ago the Planning Commission was a combination of the Zoning Board, the Selectmen and the Zoning Administrator, all had input. Somehow, it has slid back to falling on the Planning Commission, but that is still the basic people on the Zoning Board.
Kate would like to set up a schedule and time table. Kate wants to work on Zoning and revising all the permits. She assumes the process is that she can suggest some revisions. She would like to go to a system that is basically on-line. Not to fill them in on-line, but we direct people to go on-line and print out the applications. If they don’t have a computer, they could come here to the Town Office and print them out, or we would have copies here, but basically we would get away from the bad reproduction at the Town’s expense, of these forms. In addition to the forms, there would be instructions.
Kate bought a camera, so she is going to take pictures. In general, I think the Board would like to see what the sites look like.
Kate explained that we need an additional form for driveway permits. She would like to develop a new permit form before the next meeting, a draft of a driveway permit. It is very unclear.
Donna explained that a change to require new permit for driveways would have to be warned and the Selectboard would have to warn that in the Addison Independent and it would need to be posted in a couple other places so the public will know and are aware of it.
Kate doesn’t think the driveway permit should be added on the back of the ZBA application. She stated it was a road issue and it’s a technical issue about notifying the Town and what the impact this driveway is going to have on the town road, etc. Kate thinks it should be in the zoning by-laws.
Mr. Hughes stated that they are supposed to come to the town, but he doesn’t think there is anything in writing.
Gerry commented that they have had conditions on their permits stipulating that they get together with the Road Commissioner to determine whether culverts were going to be needed or necessary.
Donna commented that they have always encouraged applicants to use existing driveways, i.e. subdivisions, etc.
Kate is concerned with the independent driveways. They fall in the cracks. Kate is not as concerned with the larger projects as they are usually covered with the building permit. But, when it’s just a stand-alone driveway, people are not getting permits. These driveways can create lots of problems and is a significant expense to the town. We now have three driveways that are problem driveways that nobody got permission for because there was no construction permit involved.
Tim stated that in Section 621, we already have guidelines for what has to be done for a driveway. He would suggest on a permit have a place for Arlan to sign off on it as Road Foreman.
Kate stated that what we haven’t established is the requirement that there be an application for it.
Next Planning Commission Meeting July 8, 2009 at 6:00 p.m.
Chair adjourned the Planning Commission Meeting at 6:25 p.m. to go into the ZBA Meeting.
Cameron’s were asked to wait outside until ZBA was ready for them.
Kate wanted to speak to the Cameron hearing. This application is one of her neighbors and she is an abutting land owner. She owns the property behind them. Kate is opposed to their application; not because she is an abutting landowner, and she is recusing herself from this entire process and she’s going to leave when they talk about it. Again, it’s not because what they do has any impact on her, it’s because she’s concerned about the precedent that’s being set when a second single family house is being built on a two acre lot in Lake 2 Zoning where there are already three units. They lost one unit to a fire. Kate is concerned about that. She doesn’t think we should do that through action by the ZBA. She thinks that should be a change in the zoning if people think that a two acre lot is unnecessary. She feels uncomfortable about it, but doesn’t think she should object to it, because she’s not objecting to it as a landowner where she has a right to, she’s just giving her opinion as the ZA. If we want to revisit the lot size, the setbacks, those other issues, that’s fine. But, she thinks it should be done as a change in the zoning bylaws and people should say come back and reapply. We’re going to review the zoning bylaws and maybe change. She doesn’t think it should be done on a case by case basis. She doesn’t see In this case where there are extenuating circumstances that would justify it, and that would provide a basis for denying any other application in Lake 2 Zoning to build a second single family house on a two acre lot. Administratively, she thinks it opens a can of worms. That’s not how she thinks zoning rules should be changed, through individual actions. ZBA is to deal with particular problems, nonconforming lots, how to deal with this or that and setbacks. This is a different situation; this is simply building another house because you have a big side lot. That’s true all up and down Lake Dunmore Road. Kate said her job is to deal with the zoning laws as she finds them and they say two acres. They say Lake 2 and Lake 1 are the most sensitive areas in the town and we want to avoid overdevelopment. Their plan calls for building a garage back where there was a garage which then was converted to another rental unit before their time, and which is the one that was destroyed by fire and then adding another residence. There is also the setback issue again which doesn’t really matter, but to not need a State permit, they need to be within 50 feet of where the old building was, but the setback says you have to have two side yard setbacks which would be 80 feet. It’s kind of hard for them to meet those requirements. There’s another variance that needs to be granted. The major variance is basically having 4 units on a two acre lot and in Lake 2. Kate left.
Mr. Hughes asked to be recognized. He stated that this should have never happened. He hoped they realized that this is a public meeting and you did not go into executive session and those people should have been allowed to come in and listen to her side of the story. You already brought the meeting to order. Kate said she shouldn’t say anything and then she talked for five minutes. It isn’t fair to those applicants.
Donna stated they were scheduled for 6:30 p.m. Mr. Hughes said it didn’t matter, it’s a public meeting and they can come in at any time.
ZBA Chair called the ZBA Meeting to order at 6:35 p.m., June 10, 2009 and began with a roll call.
Peter Fjeld, Donna Swinington, Gerry Flint, Tim Johnson
Re: 16-09-ZBA Applicant: Sheri Cameron
Chair asked the applicant to refresh the Board on the revised plans. Sheri made copies of the map in color so it was easier for the Board to read.
Sheri explained what they would like to do. The little house that burned, they would like to build a 36x22 garage and they would like to build a 28x50 home on the property as well. The 36x22 garage would be on the existing slab where the little house burnt. Sheri stated they can’t really build to the structure because it’s just a slab, it’s not a foundation, so they thought they would just build a garage on the slab and then build a house. They could build a house on the existing slab, but they couldn’t utilize it and build onto it. Where the slab is; is in between the existing garage and the 3 unit apartment house. Esthetically, it would be nicer if they could move it over a little bit.
Chair asked if there were questions.
Tim reported that he went down and did a site visit of the Cameron’s property. They allowed Tim to walk the property and Tim got a layout of where they wanted to put their proposed house. Tim walked the whole area to get a better understanding of what everyone was up against.
Tim added that where the Cameron’s have the highlighted driveway area in between the house, where is says 67’, there’s a little pull off in there, that’s parking for their apartment house, from there back it’s not per say a fixed driveway. There’s very light gravel with grass growing up through it and it’s not like a hard driveway.
Chair asked if there was anyone that wished to make any comments. Chair would like to swear in anyone that would like to be a witness. Interested parties were sworn in.
Russell Wood spoke, and his wife Sandy. They are adjoining property owners to the north. They have no objections whatsoever of the Cameron’s building on their property. What has happened already is that they have cleared out all of the sumac and it’s going to be graded and it’s going to be beneficial to the whole area, especially with us. They are directly next door to the Cameron’s. They go along with what Ms. Cameron would like.
Sheri’s neighbors, Mike and Diane Many to the south of them could not be there, but sent a letter through Sheri saying they don’t oppose what she wants to do. Jim and Ida Harrington who live across the street from her were planning on being here tonight and she’s not sure where they are. They also don’t have any objections.
Donna stated that was all well and good that nobody has any objections, but they have a two acre lot minimum in zoning. Right now you have a 3 unit existing house. She realizes that your home burnt and you could rebuild there because it’s preexisting, but we would be setting precedence if we said yes to four units on a two acre lot.
Mr. Cameron asked for clarification. If he built the same house back, it’s ok. But, by moving it, you guys are saying it’s changing the law. If we built the same footprint, the same size, but only moved it out that would still be the same scenario?
Donna stated that it’s moving it on the same lot. Once we said yes you could build this house, your neighbors, the Woods, could build another house on their side yard. You are throwing two acre zoning out in the Town of Leicester.
Mr. Cameron stated, so we’re throwing it out if we are moving the house, but if we build exactly where we were before, it’s not throwing anything out.
Donna stated that it is preexisting and we can’t stop you from having something that was preexisting. Moving it 50 feet changes it. Once you have a dwelling on that, you can decide to subdivide this, and now you’re down to less than a two acre lot. We’re here about the law and the law says any place in Leicester has two acre minimums.
Tim stated he’s probably going to have several questions, being new at this. Tim stated he put a lot of hours in the last couple days looking at the zoning book and looking at this and the only thing they are going to do, as far as a residence, they are only going to have two residences, the apartment building and their main residence. As far as the garages go and the other existing garages, he’s confused by that setting a precedence and affecting the law because we’re only talking about two homes because people as he understands it, can get permits for sheds, barns, garages, many of them on their property. So he doesn’t think there is a numbers issue as far as barns, sheds, garages. What we are talking about is the residences, correct? With that said, they are grandfathered in with the existing slab because that was destroyed by fire. They could rebuild there with the existing footprint on that slab. So, they are here to us, to ask us for a variance, where by law they can build a house. They are just asking us for a variance to have the location of it moved. Going down the checklist, in the specific regulations of the setbacks, they meet their 2.2 acres, they meet the lot frontage, they meet the side yard which is 40 feet not 80 feet, they meet the rear yard. They meet all those for this. So again, he goes back, to me they are asking for a variance. We can’t argue the fact that they can’t build a house, because they can build on the existing slab. So they are here to ask for a variance for where the location is on their property.
Mr. Cameron stated that they were not trying to change anything; they just want to move it a little bit and still build the house.
Donna stated; it still goes back to the two acres lot business. Yes, you can build on the footprint of where your home burnt, because that was a preexisting zoning, but by moving it over to where you want to move it, we are not supposed to do that. I understand your philosophy, but we are not supposed to do that. You are grandfathered to build in that exact same spot, but not move it over.
Peter stated that it’s in the regulations under nonconforming uses instructions; it says shall not be moved, extended or enlarged unless the Board of Adjustment shall grant a waiver pursuant to section 363.
Mr. Cameron asked, so is that what we’re asking for? Peter stated, it sounds like it.
Donna stated that was talking about a house on one lot. We have a whole different circumstance here.
Peter stated this was a nonconforming use. It currently doesn’t conform to the zoning. It’s a preexisting, nonconforming use.
Tim explained for Peter’s benefit because he was not there for the last hearing, to let him know what was said from the ZA and the Cameron’s because they talked to the individual from the State and if this house is moved within 50 feet of the existing slab, and we give them a variance, they do not have to get State permits for septic or well because they can use the existing. So, if they were over 50 feet from it, they couldn’t do it without State involvement.
Donna asked how far they were moving it. There is no footage there.
Tim said that’s more than 50 feet, that’s not his point. He’s just saying that’s one of the factors whether allowing them to build back on the existing footprint. If we give them a variance and say no, they could move it off from the pad and they don’t have to go through the State and they’ve already checked into that and they are willing to work with the State if we give them the variance. They are willing to do the State permits, so it’s not like they are trying to duck under that.
Tim passed some information out to the Board members. This is more research Tim did on this. In Section 615, there is a paragraph in there that talks about specifically, two dwellings on a lot. That is in any zone, Lake Zone, agricultural, anywhere where it tells them they can put two dwellings on a lot. From everything he has researched in there on the general specifications, all of that, they meet it. There’s nothing in there that they don’t.
The Chair acknowledged two more adjoining neighbors. He asked them to sign in on the interested persons list and he will swear them in.
Tim’s thoughts were that they are grandfathered in to build a house, no matter what, if they put it on the existing slab, and they are going to get that. If we say no tonight, then tomorrow they can come in and do another permit application. So, we are here for a variance. Tim has been researching for hours in the zoning book, and he went through the different regulations and found this two dwelling thing, conditional use, and waivers they can apply for and he feels now is the time to act on it.
Chair asked to swear in anyone that would like to participate as an interested party.
Charlie Johnson addressed the Board about pre-existing zoning. He’s been a resident for 30 years and the piece of property that burned was not here before zoning. It was here after zoning, so this had to be approved by the ZBA back then, with two buildings on the same lot. He wanted to correct the fact that we had zoning back then.
Donna explained they have a right to rebuild on the existing slab with no permit.
Chair clarified that when someone has a piece of property, and something happens to that property, there has never been an issue on rebuilding on an existing footprint. The issue is changing the footprint and moving to the side is what we are questioning right now.
Donna explained that the insurance company does not pay as much money if you don’t build in the same footprint. Charlie Johnson questioned that. He talked about Mrs. Hooker’s fire and that she built on the opposite side of the driveway. Donna explained that she also had a fire, and her house had to be rebuilt in the exact footprint or she would take a 25% reduction in her insurance. The same thing happened to the Nicklaw’s down on Route 7. They didn’t rebuild their barn and they got paid less money because they didn’t rebuild their barn. So, most people build the same size and in the same footprint.
Tim explained that that’s the Cameron’s prerogative. If they are willing to do it, then he goes back to, they are here asking for a variance, they know what the law is on the existing footprint; they want us to give them permission to have a variance.
Chair acknowledged the Harrington’s. Ida spoke and explained that they live right across the street so they are going to be looking right at their property. However, they did sell them the property because they owned it prior to the Cameron’s. She thinks the variance is a really good idea, as long as the Board approves it. She stated that it’s only going to enhance the neighborhood, make it much cleaner, and nicer. She thinks it’s a good idea. Jim added that aesthetically, it will add to the appeal of the roadway up through there. These folks have done nothing but make that property look better. He thinks it will be a plus to the properties.
Donna explained that they are not saying that the Cameron’s are not doing a great job.
Tim spoke that he is not worried about precedence because he is going by the Leicester Zoning Book. He has gone through the book from front to back. He’s done a lot of research on this; he’s got pages folded over where if you shoot them down for one thing, they can go for waivers, conditional use, etc., etc. They meet the things. He’s not worried about what the zoning laws are going to be a year from now, or ten years from now, he’s worried about taking care of this issue with the laws that are set forth in front of us right now that we are supposed to govern and pass out to people. He feels that’s why they’re here and we should be able to act on it. Tim has countless paragraphs highlighted and folded over, starting with the setbacks.
Tim stated if we turn them down, they can do a permit to rebuild on the existing slab. They are here for a variance to move a house that they want to build the size they want it and he feels that is what we are here for, to hear their opinions, and act on it. Either grant them a variance or don’t grant them a variance with the available information we have.
Mr. Cameron stated that if you turn him down, he can start building tomorrow in the original footprint and doesn’t need a permit.
Peter stated he is trying to figure out how to make it work. We can do waivers.
Tim stated that before we turn them down in a waiver issue, it’s right here, even if we want to go to the next level, and say we’re not doing the variance. Section 615 states they can do two dwellings on that lot. They meet the setbacks.
Peter stated as a conditional use, but they have four. Tim stated that we are not talking about garages. If you go around Leicester, people with numerous numbers of garages, sheds and pole barns, storage facilities on their property. That’s not the issue, it’s the residence.
Mr. Cameron stated if that is an issue, we don’t care about the slab turning into a garage.
Peter stated, no, it’s not the number of structures, it’s the definition of a …
Tim stated if you go under the two dwellings and you want to classify it as a conditional use, then you go to the front of the book and look up conditional use on page 8, it gives you some guidance there and it refers to conforms to general and specific standards, and if you go to that, on page 25 and 26 and you read general and specifics, they follow those. He said, unless he’s missing something, with the things he’s researched and read; they meet them.
Sheri stated that they wouldn’t be setting precedence and it would be different because their neighbors do not already have a second structure on their property.
Russell Wood asked the Chair if he could ask a question. This lady who lives down the road, Kate, that owns the farm down there, who is she?
The Chair answered, Kate Briggs, she is the new Zoning Administrator.
Russell asked, “She don’t need to be here”?
The Chair explained that Kate recused herself from this hearing because she was a neighbor and she felt her role as Zoning Administrator could be a conflict of interest.
Tim explained that at the original meeting for the Cameron’s, Ms. Briggs was there as the Zoning Administrator and presented the permit to the Board as it was nonconforming. The Board did talk with Ms. Briggs about the details of the permit and she gave the Board information on the zoning aspects of that.
Mr. Cameron asked if Kate not being here meant there was no objection. Or, we don’t know.
The Chair stated that Kate not being here was to avoid any conflict. She felt she didn’t want to voice her opinion as a neighbor, at this time.
Russell stated he felt she did voice her opinion somewhat, already. I don’t know what the affect would be on that lady if she didn’t approve it through the zoning. All she has is a hillside with woods behind there and a pasture. We met her out there as she was leaving and she told us she recused herself.
Russell asked, how many does it take for a quorum? Does it take everyone on the Zoning Board to agree? The Chair answered, no, as long as we have three, a majority.
Donna clarified that the Zoning Administrator has no vote. She just presents information to the Zoning Board, but she has no vote.
The Chair asked if there was any other information that interested parties wanted to present. No other neighbors or townspeople have come in with complaints.
Tim was trying to get the correct wording for what they were voting on. He asked if the simplest thing was instead of going conditional use, just allowing them to move their house from the existing slab to the location described in the plans. To vote on it as warned.
Tim’s proposal, as their permit is here in front of the Board, they are asking for a zoning permit to build a 28x50 ranch home at the location they have on the map and their storage shed. If they are going in that location there, it is more than 50 feet from the existing slab, and therefore a condition should be put in there that they get all the necessary requirement permits from the State. We are granting them a variance to move their house from the existing slab.
FINDINGS OF FACT FOR A VARIANCE:
1. The hardship is due to the unique physical characteristics peculiar to the particular property.
· All voted yes
2. Because of such physical conditions, there is no possibility that the property can be developed in strict conformance with the zoning regulations.
· All voted yes
3. The hardship has not been created by the applicant.
· All voted yes
4. The variance, if authorized, will not adversely affect the character of the surrounding area, the use of adjoining property, or the public welfare.
· All voted yes
5. The variance is the minimum necessary to grant relief.
· All voted yes
CONDITIONS FOR APPROVAL:
Must obtain all necessary septic permits because of 50’ difference from existing slab to new location.
The building permit was given to the Cameron’s. The Board explained that it should be posted in a visible location when they begin construction. It clearly explains that they are building on an approved permit. Paperwork was gathered for the Secretary.
Sheri asked to address the Board. She asked if they apply to the State and for some reason the septic is not approved, would it be ok with the Board, instead of putting the house lengthwise, we turned it sideways? The Board said that this permit was approved as presented. If they want something different they would have to go back and re-apply.
The Chair said everything was dependent on the necessary septic permits.
The Board wished them the best.
Motion to adjourn by Pete. Seconded by Tim. So approved. All in favor.
Adjourned at 7:31 p.m.
Respectfully submitted,
Sandra L. Trombley
PC & ZBA Secretary