Following the new February minutes, I set out an excerpt of the revised January Zoning Board minutes so you can see a fuller picture of the background of the Therrien matter. This issue about requiring a 200 foot frontage on a town road for construction (or other) purposes is one that arises with regularity. Chuck Bingaman
15 February 2006
Present: E. Vose, M. Mansouri, J. Galloway-Leclerc, L. Britton, L. Weber, L. Carignan (alt), W. Webb (alt)
NOTE: THE FOLLOWING MINUTES WILL BE REVIEWED ON 15 MARCH, 2006.
The meeting was called to order at 7:32 PM.
PUBLIC HEARINGS:
Therrien Variance Request--continued from 18 January.
Mr. Vose noted that this hearing was continued from the last meeting, that the evidence portion of the hearing was closed, and that deliberations were to begin. The panel hearing this matter consists of Mr. Vose, Ms. Mansouri, Mr. Webb, Mr. Carignan, and Ms. Weber.
Mr. Therrien submitted, in writing, three changes to the January 18 minutes to more accurately represent his position. All three changes were accepted by the Board and will be incorporated into the January 18 minutes. Mr. Therrien further noted that his attorney, Thomas R. Hanna, Esq., was unable to attend the hearing, and presented a memo from Mr. Hanna in support of his application. Mr. Vose stated that the information portion of the hearing was closed but that the Board would take the memo under advisement. With respect to the liability waiver for the Town, Mr. Therrien stated that he has met with the selectmen, and will give the Town a waiver upon receipt of approval of his variance. The Board then considered the five criteria required for a vairance.
1. No decrease in surrounding property values would be suffered. Ms. Weber stated that nothing submitted in the evidentiary portion of the hearing raised any suggestion that the proposed subdivision would cause property values to diminish. Ms. Mansouri agreed. Mr. Vose stated that all votes on this matter would be by a show of hands. All voted that this criterion had been met.
2. Granting the variance must not be contrary to the public interest. Mr. Webb stated that the history of other lots in the vicinity having been treated the same way indicates that the proposal is not against the public interest. Mr. Vose suggested that if we grant the variance, we are making a non-conforming lot, which selectmen are no longer accepting, so we could be going against that policy. Ms. Mansouri stated that going against the current practices of the selectmen in creating a non-conforming lot would be against public policy. Mr. Vose noted that the selectmen are no longer allowing building on private roads. Ms. Mansouri stated that the public policy of the town is the 200 foot requirement of public road frontage required by the Ordinance. Ms. Weber stated that it is the departure from the 200 foot requirement that is before us, not anything that was done in the past. There are other ways of dividing the property and still preserving the 200 feet of public road frontage, but this perhaps speaks more to the hardship criterion than to public policy.
Mr. Vose read the second subcriterion under the hardship requirement; that no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property. Mr. Carignan stated that if the selectmen agreed to the creation of the other lots on Stevens Lane, he does not see how we could say no to this one. Ms. Mansouri stated the applicant can still make three lots all in conformance with the ordinance. Mr. Webb said that Ms. Mansouri’s comments convinced him that the ordinance says we are are not supposed to create a nonconformity and that it is against the public interest to create something not called for in the Ordinance. Ms. Weber asked don’t we create a non-conformity every time we grant a variance? That is what the variance procedure is for.
Ms. Mansouri stated that we would not be creating unnecessary hardship in not granting the variance, as the applicant would still be able to subdivide the property. Mr. Vose read language from the Zoning Handbook suggesting that although the burden of persuasion rests on the applicant, the Board should not be sticklers for the letter of the ordinance unless the Board or abutters raise substantial issues with the proposal. Ms. Weber stated that the issue raised here was the one of a lot with no public road frontage. Mr. Carignan again raised the question of what the selectmen were accepting for frontage at the time Mr. Therrien brought the property.
Mr. Therrien interjected that the Selectmen granted him the same conditions as the ZBA gave to the other lots. Ms. Mansouri noted that the selectmen have always accepted access from a point other than the public road frontage, but stated the Selectmen cannot grant conditions only available through action of the ZBA. Mr. Carignan stated that he sees Ms. Mansouri’s point but is questioning what the spirit of the ordinance comes down to. Ms. Weber said the spirit of the ordinance is a whole separate criterion, but they are interwoven.
Mr. Vose stated the selectmen cannot grant a variance but they could issue a building permit because this property had frontage. Many other properties are in the same situation. Ms. Mansouri noted that each case is voted on separately, but noted her difficulty in voting for a nonconformity. Ms. Weber said that we often worry about opening a Pandora’s box with a particular decision, but this should not be a consideration as every case must be decided on its own merit. There may be some room for comparison to what happens with other properties in the public policy component.
Mr. Webb asked what would be the damage caused by granting this subdivision. All variances produce some nonconformity. If you look at the philosophical roots of the zoning ordinance, this proposal results in less density than the ordinance requires. Mr. Carignan agreed with this reasoning, and Ms. Weber stated that it persuaded her too.
Mr. Vose called for a vote by show of hands on the public interest criterion. All voted that the criterion had been met.
3. Denial of the variance would result in unnecessary hardship to the owner seeking it. Ms. Weber stated she had been firmly opposed to this criterion as other conforming ways exist to divide the property, but is rethinking in light of Mr. Webb’s argument regarding the extent of harm. Ms. Mansouri reiterated her reluctance to give up the frontage requirement. Mr. Webb stated that we need to decide if the proposal is actually damaging to the town. This proposal is not detrimental to the community in and of itself, and he is going to vote for it.
Mr. Vose brought up the three subcriteria in this category, and asked what the point of requiring technical compliance if the application is essentially in compliance with the ordinance. Ms. Mansouri stated that zoning is an equal hardship to every property in town because everyone must conform to it.
Subcriterion 1. The zoning restriction as applied to the applicant’s property interferes with the applicant’s reasonable use of the property, considering the unique setting of the property in its environment. Ms. Weber read aloud the first subcriterion and the commentary accompanying it, requiring that the proposed use be reasonable, and that there be some unique characteristic about this property that it does not share with every property in the same district. Mr. Vose stated that that the uniqueness to this property is its steep topography, the circumstances of the development of Stevens Lane, and the dual frontages on both public and private roads. Ms. Weber stated she agreed the subcriterion had been met because of the three factors stated by Mr. Vose. Mr. Webb agreed. All voted that this subcriterion had been met.
Subcriterion 2. No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property. Ms. Weber stated that in light of the density in the proposal and its similarity to the surrounding properties without public road frontage, the technicality of imposing the 200 foot public road requirement seems unnecessary in this case. All voted that this subcriterion had been met.
Subcriterion 3. The variance would not injure the public or private rights of others. Mr. Webb stated that this was self-evident from the proposal. All voted that this subcriterion had been met.
A vote was taken on the hardship criterion as a whole. All voted that this criterion had been met.
4. By granting the variance substantial justice would be done. Mr. Webb stated that this requirement was intertwined with the discussion of the first three criteria, and that it was logical to do substantial justice hereby granting the variance. All voted that this criterion had been met.
5. The use must not be contrary to the spirit or intent of the ordinance. Mr. Vose stated that we are not intended to penalize an applicant on technicalities. Mr. Webb stated that we need to determine the reasonableness of the use and its benefit to the community. We have determined that the proposal is reasonable. All voted that this criterion was met.
Mr. Webb moved that the variance be granted as presented. Mr. Carignan seconded the motion. Some discussion ensued whether to amend the motion to grant the variance pending resolution of the liability letter issue. It was decided that as Mr. Therrien’s representation that he will comply with this requirement is part of his presentation and this record, no such amendment is required. All voted in favor of granting the variance as presented. Mr. Therrien was thanked for his efforts.
Old Business:
Mr. Webb moved the approval of the 18 January minutes with the changes proposed by Mr. Therrien. Ms. Mansouri seconded, and all voted in favor.
New Business:
Mr. Vose proposed Mr. Lewis LaClair to fill the vacant alternate position. Mr. Webb moved the appointment of Mr. LaClair to a three year term. Ms. Mansouri seconded, and all voted in favor.
Meeting adjourned at 8:51 pm. Next meeting will be held on Wednesday, March 15th, 2006 at 7:30 pm.
Respectfully submitted,
Lucy McVitty Weber________________________
Excerpt from January Zoning Board minutes
Therrien Variance—Stevens Road and County Road
Ms. Weber resumed her seat on the Board. Ms. Galloway-Leclerc recused herself as an abutter. Mr. Carignan was appointed to serve in her place.
Bill Therrien, property owner, and William A Lawrence, LLS, of Lawrence Associates, of Langdon appeared to request the variance. The property in question is a 40 acre lot with approximately 750 feet of frontage on County Road, which is a town road, and 1000 plus feet of frontage on Stevens Road, which is private. A binder containing several documents was presented to the Board in support of the project.
Mr Therrien began with a history of the property. He stated that the subject parcel was part of a larger property owned by Austin Stevens. In 1947, all but the first 500 feet of Stevens Road was discontinued by the town and turned back to the adjacent property owners. Mr. Stevens began the subdivision by creating Lot 45, now owned by Coyle, by variance, in 1976. A house was built on this lot in 2000. Lot 43-2, now owned by Tim Allen, was created, also by variance, in 1979. The Therriens bought Lot 44, the subject property, in 1997. They wanted to build their house on the Stevens Road side of the property, and went to the Selectmen and executed an agreement with the selectmen granting them the same conditions as those imposed on the other owners on Stevens Road. Mr. Therrien stated a variance was obtained at that time. Mr. Therrien stated that the conditions in his agreement with the Selectmen were the same as the conditions the Zoning Board required of the other lots when granting their variance. The Therrien house was built in 2000. Improvements were made by the owners to Stevens Road in 1987, and major maintenance was performed in 2001, after the building was completed. There are currently four lots with frontage on the town maintained portion of the road. There are currently four lots with houses on them on the lower private portion of Taggert Road and there are also four lots (three with houses, including Therriens) on the private Stevens Lane.
The Therriens are proposing to create two new lots on the southern , or County Road, end of the property, one of 11.42 acres and one of 11.66 acres. Both lots would have adequate frontage on County Road to comply with current zoning requirements, and the lots would share a common access off County Road. The variance is needed because the remaining lot, with the Therrien home, will have frontage only on the private portion of Stevens Road. The property lends itself to this division, as to divide it up otherwise would be unaesthetic have less desirable results. . There is no suitable access from the portion of the property on which the Therrien house sits out to County Road.
Mr. Therrien and Mr. Lawrence then discussed the five criteria required for a variance.
No diminution in value to surrounding properties: The lots are large and in keeping with those in the neighborhood. Neither of the two new lots have enough road frontage to permit them to be subdivided further in the future. The documentation presented to the Board included a memorandum from Chas Street, a real estate professional, stating his opinion that the surrounding properties would suffer no diminution in value as a result of the subdivision.
Not contrary to the public interest: Stevens Road complies with the safety requirements from the Town. The home and access on Stevens Road are already in existence.
Denial of the variance would result in unnecessary hardship: The existing home already has adequate access from Stevens Road, and no viable access from County Road. This access was approved by the selectmen. The house site is approximately 130 feet higher in elevation than the County Road side of the property. Alternate subdivision plans would be less aesthetically pleasing have less desirable results and would be less advantageous to the property owner. The frontage on Stevens Road should be counted as adequate access to the retained parcel.
Mr. Therrien further verbally defined “less desirable” as:
1. Inefficient use of land
2. More curb cuts
3. Having potential for neighbor issues due to jutting finger connection to County Road
4. Other plans were poorer designs (for both Walpole and the Therriens)
Observing the spirit of the Ordinance: The two lower parcels are in compliance with the requirements of the zoning ordinance, and have more frontage than required. The upper parcel has
greater than required frontage along Stevens Lane. The upper and lower parcels are separate from each other due to topography.Substantial justice: The new parcels are larger than the ordinance requires. The home on the upper parcel is already in place and was approved by the Selectmen.
Mr. Vose inquired if the Therriens had signed a hold harmless letter releasing the town from liability for emergency services. Such a letter has been required from homeowners building on private access roads. Mr. Therrien stated he was not asked for such a letter, and there has been no problem with emergency services getting access to the Therrien property when needed. Mr. Therrien, in response to Mr. Vose’s question, stated he was unsure whether he would be willing to sign such a letter. He would need the opportunity to consult with a lawyer before doing so. Mr. Vose also noted that what was submitted was a letter from the selectmen approving the building on the Therrien property, not a variance from the Zoning Board.
Mr. LeClerc stated that a fire protection letter was not required when the Therrien home was built, because their lot had adequate frontage on a town road. If the only access to the remaining parcel is from Stevens Road the property should have the fire protection letter.
Ms. Galloway-Leclerc stated that the lot and house as it now exists conforms to the Zoning regulations. There are ways to subdivide off two lots and still conform to the ordinance. Whether the lots could be prettier or otherwise should not be the basis for departing from the current zoning requirements. Mr. Therrien reiterated that the selectmen allowed them to build the house and gave them a variance. Ms. Weber stated that the selectmen gave permission for building, but not a variance as none was needed at that time.
Mr. Webb said that the presence of the existing house does not convince him of the need for a variance. He asked again about Mr. Therrien’s willingness to sign the emergency services liability letter. Mr. Therrien indicated a willingness to consider it. Mr. Lawrence suggested that a variance could be issued conditional upon the receipt of such a completed agreement. Mr. Vose noted the matter could be tabled until next month pending resolution of the emergency services liability letter issue, which needs to be addressed to the selectmen. This was acceptable to Mr. Therrien.
Ms. Weber expressed her concern that the Board has not yet addressed the five variance criteria, and these would still have to be deliberated on at the next meeting, in addition to a satisfactory resolution of the letter issue. Mr. Lawrence expressed concern regarding what he perceives may be bias on the part of Board members. Mrs. Weber stated that she has not prejudged the matter against the applicant, but neither is she willing at this stage to give the impression that she has prejudged in favor of the applicant without deliberation.
Mr. Snide stated he is a supporter of back lot development personally, but there is no support for it in the Walpole master plan. Such development was acceptable in the 1970s when the Stevens created the lots, but back lot development was considered and rejected when the Master Plan was revised, and the current zoning does not permit it. He stated the two lots could still be created and conformance maintained for all three lots by drawing the lot lines differently, and retaining a strip of land connection the Therrien lot with the required amount of frontage on County Road.
Mr. Therrien stated his plan controls density and adequately addresses the needs of safety. The spirit of the law should apply to the frontage from which you access your home. He reiterated that the property owners had brought the road up to standard, but the town has not taken over
County Road. He feels caught in the middle of this long-standing issue with respect to the situation of his property. He would like to add to his argument on the hardship factor the town’s
unwillingness to take over the road. Town takeover of the road would be much more difficult to accomplish now.
Mr. Webb inquired who was doing the routine maintenance now. Mr. Therrien stated it was he and his neighbors. M. Mansouri said that the town was not required to take the road over. Mr. Vose noted that at one time the property owners were promised the road would be taken over. Mr. Webb suggested that Mr. Therrien approach the selectmen and get their approval to for the emergency services liability letter. Mr. Therrien will check with his attorney regarding the required language. Mr Boas noted that Mr. Therrien will still have to go before the planning board for approval after a variance is obtained. Mr. Webb moved that the hearing be closed and deliberation held at the next regular meeting. Ms. Mansouri seconded. Mr. Therrien agreed to this procedure and stated that he had presented all he wants to say in support of the application. The motion passed unanimously.