The Walpolean

Walpole Zoning Board of Adjustment

Minutes: June 16, 2016

Walpole, Town Hall

7:30 pm 

Present: Board Members: Chair Myra Mansouri, Vice-Chair Jan Galloway Leclerc, Mary Therese Lester, Bob Anderson, Judy Trow. Alternate: Tom Murray has not been sworn in yet.

Recording: Marilou Blaine. These minutes are unapproved and will be reviewed at the July 2016 meeting for corrections, additions and/or omissions.

Roll Call: Ms. Mansouri called the meeting to order at 7:30 pm. There was a quorum of five board members.

Leadership Academy: Ms. Mansouri welcomed the members of the Leadership Academy. She said soon after she moved to Walpole, she began going to Zoning and Planning Board meetings. She was an alternate on the Zoning Board before becoming a board member. She hopes someone in the Academy will be inspired enough to participate on a board. 

Minutes of May:  Ms. Leclerc made a motion to accept the minutes as written. Ms. Lester seconded the motion and the board approved the motion

New Business:

Savings Bank of Walpole: Signage – Martha Curtis, who was representing the bank, asked for a special exception to place a sign perpendicular to Route 12. Map 20, Lot 55-3, Commercial District. Ordinance Article IV, D-6.

Ms. Curtis said that although the Savings Bank of Walpole has been at the Ames Plaza location for about 30 years, some people who are new to the area cannot locate the building. Ms. Curtis asked for a Public Hearing in July for a Special Exception to place a sign, which is the allowable size of 32 square feet. The sign has the name of the bank on it and its logo. It will be lighted with LED lights that are on a timer and turn off at 9 pm. The sign is free-standing and two-sided.

The bank needs a Special Exception because the sign on the building is 60 feet from the proposed sign. Article IV Part D-6 states that there must be 100 feet between two signs.

Mr. Anderson said he was pleased that the bank moved the sign around to get the best vantage point.

Mr. Dalessio asked what was below the La Valley sign. It was a sign for Sears. Although the bushes hide that sign, the bushes were there before Sears placed the sign.

A motion was made to hold a Public hearing for a Special Exception in July. The motion was seconded and it was passed by the entire board.

Old Business:

            Public Hearing:

Variance for an Accessory building, article XVII A and P, Map 9, Lot 33, rural/agricultural district. Ms. Kashiyo Enokido wished to build a detached accessory dwelling on her property at 192 March Hill Road. The dwelling would be a two-car garage with one of the garage bays to be finished as an art studio. Above this space would be one bedroom, one bathroom, and living space.

Barry Bellows, speaking for the owner, thanked the Board for coming out to walk the site. Before he continued, Mr. Anderson asked him a question: Regarding this property, were granted any exceptions for a non-conforming use or do any non-conforming uses exist at this time. Mr. Bellows answered “No, none that I know of.”

Mr. Bellows continued that all the paperwork, maps, questions had been submitted. He gave a synopsis of what the owner wanted: an accessory building, a detached structure that is going to be used on an occasional basis. It is a space for their family to visit. It would be a two-bay garage with one bay being used for an art studio. Upstairs is a bedroom, bath and living space.

The owners do not want an attached building because it would block the entrance of the rear yard. This provides the owners for a potential caregiver. The structure will share all utilities with the main house – power, sewage system, telephone.

The owners are not pushing for a subdivision; the owners are not trying to create a density issue. Mr. Bellows said. The owners are not creating a new infrastructure. Mr. Bellows mentioned House Bill 45, which recently passed the NH Legislature that will be putting into law a new look at accessory buildings, he said. It is an important option and something that is coming in the future. This passed in a 2-to-1 margin the House and unanimous in the Senate. There are many people behind this, he said.

The accessory building will be a value to the town, Bellows said. It will increase taxes, put no burden on the school system or services. Mr. Bellows said he hoped that the route the Board is taking will service the needs of the townspeople in use of their own land.

Ms. Mansouri asked Mr. Bellows to read the answers to the criteria:

Question 1: Give specific details of the project.

Answer: “The constituents of the above stated property would like to build a detached accessory dwelling unit upon their property within a close proximity to the main house. This space is to be a two-car garaged on the base level with one of the garage bays to be enclosed and finished for the purpose of an art studio for one of the owners. Above this space, they would like to construct a one-bedroom space with a full bathroom that can house sporadically their family, or visiting friends upon their property. Due to the fact that their children live in other communities this will enable them to visit for extended periods if desired. The owners are in no means looking to create this as a rental situation for income or otherwise and look to the future as this could potentially house a caregiver allowing them the ability to age in their home and on their property. Their current house is a two-bedroom home that doesn’t allow for the needs that are wanting to be filled by this structure.”

Question 2: The proposed use would not diminish surrounding property value because:

Answer: “The construction and use of this structure will not cause any environmental, physical or emotional detrimental effects upon the neighboring properties. For the most part it is physically unable to be seen by neighboring properties and due to the nature of the site, the hllls and surrounding terrain, it is almost completely isolated.”

Questions 3: Denial of the variance would result in unnecessary hardship to the owner because of the following special circumstances of the property that distinguish it from other properties similarly zoned because:

Answer: “An attached structure is incompatible with the current design of the house. The existing house was specifically located next to a brook that wraps two sides of the home, the house accessed by a bridge that was required and the approach enters to an attached garage structure with just enough room to turn entering vehicle around. The remaining side faces a large embankment, part of which buffers the potential for an overflowing brook and also allows access to the rear of the house for landscaping maintenance, the potential of needing to get to the well in case of a pump or other system failure, and the ability for fire or emergency vehicle to access at least three sides of the home. Denial of this variance would  put limits and restrictions on the owners’ use of their property and use of their current home in a manner that is unappealing from  a functional, aesthetic and necessary access to all points of their home.”

Question 4: Granting the variance would do substantial justice because:

Answer: “It will allow the owners a space for their family and friends to visit who do not reside in this community. It allows them the ability to share and enjoy their property and to bring people to this community to enjoy the many things that it has to offer. It will avoid doing damage to the current design and function of the existing house, allow for better access to the house in case of emergencies or servicing and maintaining. It will offer the owners the ability to age in their home or  have family to assist them as they age or to have a caregiver on the site in a time of need.”

Question 5: The proposed would not be contrary to the spirit of the ordinance because:

Answer: “We are not exactly sure what the “spirit of the ordinance” is for the requirement of a common foundation. If we are to assume an understanding then we would say that this structure whether an addition or a detached structure represents exactly the same thing in size, function, use, and impact upon the land and surrounding neighbors. The proximity is close to the existing house and it will share the same utilities of phone, power, septic, driveway and use of property. The primary structure is owner-occupied, there is ample parking as need, the primary structure is the primary dwelling of the owners. The design and architectural appearance, along with creation of more open land and maintained land usage seems in context with the reasoning for ordinances. This structure will sit on an existing lot, it does not push for further expansion or subdivision, it represents very balanced growth and use of the existing system in an aesthetically pleasing manner, and it most certainly does not create a density issue with the ample size of the lot along with the fact that it will very likely have zero impact upon any neighboring properties.”

“In Summary: We see at this current time in our state a need and a push towards the ability to have accessory dwelling units. This lot of ample size has the ability to subdivide and construct this space in the open field on the approach, but in my opinion this would be more of an impact much less efficient use of existing systems, the elimination of open land, the creation of more density in the rural aspect of your town and the loss of the commodity of land attached to residential needs. This structure that we are looking for approval to construct allows the potential of the owners of this primary residence the ability be able to look to their personal needs of the future when the ability to live and age without relocation becomes a factor.”

Ms. Mansouri said, “The way the Board has always done this is that we have voted on each question. But first, are there any questions from the audience?”

Mr. Anderson, reading from one of the zoning manuals, said “the Board does not have the discretion because they like the applicant or because they the project is a good idea.”

Someone in the audience asked. “Why would that ever come up,”

Another audience member asked why ask them to go through a variance if you are not open.

Ms. Mansouri replied, “We are open and listen to the answers and then the Board decides what it wants to do.”

Mr. Steve Dalessio, a selectman and leader of the Leadership Academy, suggested going back to Zoning Article 5 that describes a single or one family dwelling and then go back to the section of definitions. There is nothing that talks about detached or one foundation. Go back to the work dwelling in definitions. Wherever in this document, does the explanation of the word dwelling appear.

“That’s either a single or two-family house is on one foundation,” Ms. Mansouri said. It does not say house. Mr.  Dalessio said. A dwelling would be where someone lived, Ms. Mansouri responded.

On page 25, under article 17, Ms. Trow read “a dwelling is a building of one foundation. A one-or-two family dwelling shares the same foundation.” Mr. Dalessio said, “It doesn’t day house.” Ms. Trow said, “It says dwelling.” Mr. Dalessio said, “ A dwelling could be a garage. The document doesn’t define dwelling.”

What is the definition of a foundation, an audience member asked. Ms. Mansouri said., “What a house is put on.”  “But what about a two-family house, “ He asked. Ms. Mansouri said that would be up and down.”

Ms. Mansouri said that the owners have a lot of road frontage. They could give access over the driveway for a right of way and put that on the subdivided part, still have all the utilities come from the main house and put a clause in the deed that the two lots could not be sold separately.

Mr. Crouse asked if it is the intention to keep the two structures together.

Ms. Mansouri said you only need 200 feet of frontage. So you take 200 feet, provide access over the driveway, the house would be a separate lot or record but the deed says they could never be sold separately

“I’m not sure that makes sense,” Mr. Crouse said. You have to go through the meadow out to the road and take 200 feet of frontage and create a new lot.

Someone from the audience asked if it would not be easier to record them as one. This way they have to go to the Planning Board, get a subdivision, record in the deed that the two buildings would always be sold together. It will be winter before construction could begin.

“They can get what they want exactly and also conform to the zoning ordinance,” Ms. Leclerc said. “Then there is no point in the variance.”

Ms. Peggy Pschirrer said she was concerned about requiring something in a deed that stamps of regulatory statement. “You are restricting the owner economically by saying you will never divide this space. That’s similar to eminent domain. Now if you had compensated him and deny him the right later to separate that property, you can do that, but its regulatory statement.”

Ms. Trow said that what is being suggested is that after they subdivide, they put a clause in their deed it cannot be sold separately.

Ms. Pschirrer said, “You are restricting what they can do.”

Ms. Leclerc said the owners said they did not want to separate these properties. Putting it in the deed would give them what they want. They don’t have to.

Ms. Pschirrer said you’re requiring it. Ms. Mansouri said, “We’re not requiring it.” Ms. Pschirrer said if she were the applicant she would say “absolutely not. You are prohibiting that free use of that land. It may give them what they want, but it’s a dangerous road to do down.”

Ms. Mansouri said the Board was only suggesting it because they said they always wanted the two pieces to go together.

“Then I would rely on their good faith to do so,” Ms. Pschirrer said.

Someone from the audience asked if they subdivided wouldn’t they have to have their own septic and other services.

Mr. Bellows said it is too close to the other building. Ms. Leclerc asked if was 40 feet. Mr. Bellows said it was more than that. Ms. Leclerc said all you need is 20 feet from the property line.

Mr. Richard Francis asked if the Board’s suggestion is an avenue they might take if the applicants were turned down. If you go through the five criteria and everybody agrees with what was being done, they don’t need to do that. If somebody disagrees with one or more criteria and the variance is turned down, are you now suggesting this is an avenue for them to take.

Ms. Mansouri answered this is a legal avenue for them to take to get them what they want.

Mr. Anderson said one of the questions is about hardships. And then the Board has to consider whether or not there were options. He asked, could you build a second story over the garage and create what you want?

Not in a pleasing manner, Mr. Bellows said. “Is it physically possible, anything is possible.”

“Could you add an addition to the side of the house,” Mr. Anderson asked. “Which side?” Mr. Bellows asked.

“My answer would be no,” Mr. Bellows answered. “The well is there, the propane tank, the septic is there. I wouldn’t recommend it.”

Mr. Anderson asked, “Does the house have a basement.” Mr. Bellows answered, “It has a crawl space under two-thirds, basement under one-third with no egress.

Ms. Lester asked if there would ever be a kitchen. Mr. Bellows said, “No.”

Mr. Anderson said New Hampshire law requires an ordinance to have an attached accessory dwelling unit, it does not require us to have a detached accessory building. That is optional. He continued that Mr. Bellows believes they are the same. “My reading is that they are not the same.”

Mr. Bellows asked what difference does it make if the structure is 15 feet away or attached. Mr. Anderson said he couldn’t answer that because all the towns in this state are going to be trying to figure this out for attached and detached.

One thing I have found in towns like Peterborough allows this with restriction of lot size, which is 10 acres. Ms. Mansouri said the town voted on the ordinance and the Board had to follow the ordinances of our town.

Mr. Bellows said he thought there’s a reason for it and a need for it. Ms. Leclerc agreed and said she personally felt it could be a good idea to have detached dwelling units but the Board has to look at what Walpole has for ordinances now.

Mr. Crouse said one of your responsibilities is to consider variances. Ms. Leclerc agreed if the applicant meets the criteria. Mr. Crouse added that a lot of the words in the form are not that clear.

There being no further questions, Ms. Mansouri closed the Public Hearing.

She asked Mr. Bellows to read Question 1 and his answer. (Please refer to the previous question and answer.)

Mr. Leclerc agreed it wouldn’t diminish property values as did the rest of the Board. Vote 5 for 0 against.

Question and answer 2. Ms. Lester said she tends to agree because of the placement of the house. You could not get a fire truck in there and if there were an issue with the well. I realized that things as people age they like things on the first floor. And she would be denied the ability to do her work if an art studio is not built.

Ms. Leclerc said, “If the lot were small, I would agree. I agree it would spoil look of the house.” But when you consider the size of the lot, it allows the owners to subdivide so she can get what she wants.

Mr. Anderson said, “I don’t see a hardship in the property. I think there are ways for you to establish your goal.”

Mr. Trow said, “I also do not see a hardship. The way existing house was built, the style of the house. If either of those had been different, we wouldn’t be here. They have plenty of land to subdivide.”

Ms. Lester said, “I guess I think someone designs a house and then decides after the fact to do something, it’s because they want to keep it intact. I think we can’t deny it’s a hardship. It’s aesthetically pleasing.” Maybe they didn’t know about a subdivision and all the extra work.

Mr. Bellows said it’s an existing house and everyone can look back and say they should have this, they should have that. But this is what it is. It is now something they want years later.

Ms. Mansouri interrupted and told Mr. Bellows that at this time he wasn’t allowed to speak. He apologized.

The vote on hardship in the property was 4-1.

Question and answer 3.

 Ms. Leclerc said she didn’t agree because they can do what they want without a variance.

Ms. Lester said, “I guess I have a hard time with word substantial. It doesn’t do substantial justice.

Mr. Anderson said he didn’t have a problem with substantial justice. Ms. Trow agreed. The vote was 3 to 1 with 1 abstention.

Mr. Anderson proposed that if we agree to this accessory dwelling and the property is sold, the new owner could decide to put in four more accessory dwellings. The property would have has already gotten a variance, so there is a history that would make it possible.

Ms. Leclerc said when they changed the zoning to common foundation and people who had a house here and a garage there and they would make a roof between the two. And another time a trailer was put on a property and a variance was granted to an elderly relative to live in it. When she died, they rented the trailer, which violated the zoning. And at that time, if two residences were on a lot, it was controversial. So having a common foundation fixed that problem. In the future thing may change, especially on large lots. But for now we have this ordinance.

Question 4

The vote on this question was 5-0.

A vote on the entire ordinance was 5-0.

Mr. Dalessio explained the appeal process. They may appeal for a rehearing in 30 days and then it goes to the Selectboard.

Mr. Crouse said, “You set us up from the beginning. You had made up your mind.’

Someone in the audience asked, “Why not go directly to the Selectboard.” Ms. Pschirrer said they have to exhaust their administrative rights.

Mr. Bellows said he was requesting another Public Hearing for next month. A motion was made and seconded and passed unanimously by the Board.

New Business:

Mr. Archie Brown and his wife Jeanne Marie are purchasing the property of the former sculpture Jonathan Clowes at 98 March Hill Road. His wife is a professor at Keene State College in the Theater and Dance Department. She also advises new Equity productions. Mr. Brown works for the Brattleboro Development Credit Corporation and the couple has an interest in holding workshops and classes for rural entrepreneurs.

The primary use of the house would be as a home. But could she do some workshops and could I do some consulting at that location. It has this huge open room. If Jeanne Marie were work shopping a new show, could she have artists there – for a week or weekend?

If we had nonprofit status, could there be performances for the community?

Mr. Brown was before the Board making sure these ideas would be OK and ethical. “We want to be open and transparent about what we will be doing,” he said.

Ms. Trow read the ordinance relating to working in your home.

Ms. Lester said consulting in your home, shouldn’t be a problem. Regarding the theater workshops she asked how many people. Mr. Brown said probably no more than 10. He added that rehearsal space is very expensive.

Someone asked if he would have employees. He answered no more than occasionally their college-age children.

Ms. Mansouri asked about parking. Mr. Brown said it was a pretty long driveway and he thought it would be adequate.

If we had a new play, we could invite people to audience reaction – maybe 30 people.

Ms. Lester said it would be like a theater party.

Expansion of a non-conforming use:

Lynne and Bill Reed, 60 Main St. Map 20, Lot 46 would like to put a roof over some step that outside the back of their house. It is 17 feet from the property line and the setback is 20 feet. Mr. Reed requested a Public Hearing for the month of July. A motion was made, seconded and unanimously approved to the hold the session.

A motion was made to go into executive session. The Board was in executive session for about 10 minutes.

Respectfully submitted,

Marilou Blaine