The Town of Harrisville Zoning Board of Adjustment held a public meeting and public hearing, including a Joint Hearing with the Planning Board, on Wednesday, September 18, 2019, at the Town Offices located at 705 Chesham Road.

ZBA members present: Hal Grant*, Chairman; Charles Sorenson*, Vice Chairman; Jay Jacobs*, Select Board Representative; Pegg Monahan, Alternate; Jeffrey Trudelle*; Rex Baker*
ZBA members absent: Patrick Gagne; Andrew Maneval, Alternate
Planning Board members present: Lisa Anderson*, Co-Chair; Ryan Stone*, Co-Chair; Peter Thayer; Courtney Cox*; Ned Hulbert*; Noel Greiner; Don Scott, Alternate; Andrea Hodson*, Select Board Representative
* = voting member

Members of the public: Anne Howe; Donald Blajda; Andrew Sullivan; Judy Putnam; Nicholas Putnam; Rosamond Delori; Jason Reimers; Gordon Luciano; Marcia Luciano

The meeting began with the Joint Public Hearing of the Planning and Zoning Boards to consider the following:

Mark and Karen Bemis, 129 Eastside Road (Map 71-Lot 1)
Background-The Bemises began hearing proceedings before the ZBA on August 21, 2019, for a Special Exception to convert an existing, non-conforming, 18×20 foot barn/garage into extra sleeping space for their growing family. As submitted to the ZBA, the design includes 2 bedrooms, a ½ bathroom on the first floor, a ¾ bath with shower, sink and toilet on the second floor, and storage space. The total square footage is 960, and it would use the same footprint.

One of the issues debated by the ZBA is the applicants’ plans for a countertop, cupboards, a sink and small fridge, but no permanent cooking unit. It is the applicants’ position that the proposal does not constitute cooking facilities as defined by the town’s regulations and the International Residential Code, and is merely intended as extra sleeping space for family members. To some ZBA members, however, it is unclear whether the design meets the definition of an Accessory Dwelling Unit as outlined in town ordinances, and whether or not a Conditional Use Permit from the Planning Board is thus required.

Following deliberations at the August ZBA meeting about the definition of cooking facilities, the ZBA determined it could not proceed on the request for a Special Exception for alteration of a nonconforming structure until it obtained the PB’s input on the question of whether or not the proposal constitutes an ADU under the town’s regulations. All parties subsequently agreed that a Joint Hearing was needed to ascertain a realistic and current definition for cooking provisions from the Planning Board, and the PB’s opinion whether or not the Bemis’s proposal fits the town’s definition of an ADU.

Joint Hearing – Charles Sorenson summarized the ZBA’s considerations and asked the PB for its interpretation. Both boards reviewed the definitions of both ADU and Dwelling under Article XXVI, and the potential applicability of provisions in Article XXIX Accessory Dwelling Units. The applicants, in turn, argued why they don’t believe such provisions apply to their proposal.

The relevance of whether or not the Bemises use their home seasonally also was raised. Ned Hulbert proposed that the ZBA make the seasonality a condition of any approval if year-round use was a concern to board members. Mr. Jacobs raised the point that the applicants specifically request not to be considered an ADU, and the proposed design specifically omits a stove or full kitchen, but Mr. Sorenson and others noted the fact that available cooking provisions within the structure, possible with modern, portable techniques, could render it one. Mr. Sorenson added that the determination hinges on the vague definition in the ordinances and that clarification from the PB is needed.

A question about septic was raised and it was affirmed that a state-approved system was in place with adequate capacity.

The Harrisville Zoning regulations referred to throughout the hearing include:
5.3.3By special exception, a non-conforming building may be expanded in either volume or area. This expansion must be in a direction away from the non-conforming aspect of the structure…
Article XXVI  Definitions – Accessory Dwelling Unit (ADU): A residential living unit that is within or attached to a single-family dwelling or located in an accessory building on the property and that provides independent living facilities for one or more persons, including provisions for sleeping, eating, cooking, and sanitation on the same parcel of land as the principal dwelling unit it accompanies.

Article XXVI  Definitions – Dwelling: A building designed or used as the living quarters for one or more families. The terms “dwelling”, one-family dwelling”, “multiple-family dwelling”, “two-family dwelling”, or “dwelling group” shall not be deemed to include automobile court, rooming house, tourist home or hotel.

29.2 Accessory Dwelling Units, Purpose: In accordance with NH RSA 674:21, to expand the mix of affordable housing opportunities throughout the Town by permitting the creation of secondary dwelling residences as an accessory use to existing single family detached dwellings.
29.3.2 ADUs General Provisions: The creation of an ADU in a barn, garage or outbuilding that is detached from the primary residence may be granted by a conditional use permit from the Planning Board.

Andrew Sullivan, attorney for the applicants, submitted a document citing language within state and local law on the definitions of cooking facilities, dwellings and ADUs. In Mr. Sullivan’s opinion, the “intended bunk building is not a dwelling under the law or the Zoning Ordinances of the Town…”  as it does not have “permanent cooking facilities nor eating area.” Mr. Sullivan cited Article XXVI which defines ADUs as residential living units that provide independent living facilities for one or more persons, including provisions for eating and cooking. The applicants’ position is that the users of the proposed structure need to go to the main house to cook and eat and thus the structure does not qualify as an ADU or dwelling. In turn, some board members argued cooking and eating could be done with the design features proposed.

Mr. Sullivan also cited NH RSA 153:1,III which defines a “Dwelling Unit” as “a single unit providing complete and independent living facilities for one or more persons including permanent provisions for living, sleeping, eating, cooking, and sanitation.”  Both sides remarked on the definition of independent and dependent and whether or not independence was a required feature of ADUs, or whether it applied to occupants and/or the structure. Lisa Anderson argued that it was not the state’s intention to make independence a requirement of ADUs. When discussion returned to regulations surrounding cooking, Ms. Anderson argued that the extent of cooking facilities was not the point when the state enacted regulations to allow options for residents to live in ADUs. The applicants offered their different interpretation of the state regulations and why their intended use of the structure does not fit this category. Discussion also included state requirements for various occupancy permits, with Mr. Sorenson reiterating that everything needed was included in the design.

Don Scott offered caselaw he researched outlining definitions for dwellings, arguing the Bemis’s application falls within these definitions, but other board members argued the application does not meet the intent of the ADU ordinance, which was to allow for more permanent affordable housing in town. The applicants noted their intention for a low-impact design, one that was not rentable or occupiable on a permanent basis, and would be acceptable to the neighbors. Don Blajda asked the boards to specify the elements they believe render the proposal an ADU, such that the design could be modified to remove these elements. Again Mr. Sorenson asked the PB for its interpretation. Following continued debate, including comment by Jason Reimers, the abutters’ attorney, that the application meets the definition of a dwelling, Ryan Stone closed the public hearing portion.

Subsequently, Planning Board Co-Chair Ryan Stone moved that the proposed structure was not an ADU as it was not in line with the purpose of an ADU as outlined in Article XXIX of the town ordinances. During discussion, PB members agreed the ordinance language needs further clarification but argument was made that the main use of the property is seasonal and doesn’t meet the intent. Mr. Sorenson noted his concern that this interpretation limited future applicants who may propose an ADU for reasons other than caretaking or similar uses.  The vote by the PB was 4-1 in favor of Mr. Stone’s motion, with Ms. Anderson opposed, believing the application meets the criteria for an ADU and should require a Conditional Use Permit from the PB.

The Joint Hearing concluded at 8:16 pm, at which time the ZBA continued with its regular meeting.

Hal Grant raised a question forwarded to the ZBA from Lisa Anderson. The question was whether or not the demolition of a dilapidated barn on Brown Road and its replacement within the same footprint on the same foundation was allowed. Members agreed it was.

The ZBA then resumed the Bemis hearing from the previous month. Mr. Sorenson, asked the applicants to restate their case for a Special Exception to be granted in the case of increasing the volume by raising the roof 5’ and in the case of the open deck, specifically the 3’ portion wrapping around the side of the building to allow access and egress to/from the parking area. Mr. Blajda noted he had not specifically applied for a Special Exception for the increase in height but, if that was an issue, the applicant is willing to revisit the plan to accommodate neighbors’ concerns. Mr. Sorenson confirmed a Special Exception would be needed should the proposal remain as is.

Mr. Sorenson then asked the abutters’ position on the 3’ wide portion of the deck that wraps around the side of the house and sits within the 15’ setback. The structure as it exists is within 5 feet of Eastside Road. Mr. Blajda described the reason for the deck design. Jay Jacobs cited the language in 5.3.3 that states “open decks are not considered expansions” and asked why it was an issue. The attorney for the abutter argued that a Variance, not a Special Exception, was required. Jeff Trudelle noted the proposal is no greater increase in non-conformity given the existing location of the building and thus a Special Exception is required, not a Variance. The applicant affirmed its willingness to apply for whatever was needed.

Nicholas Putnam, an abutter, commented on the fact that there are numerous similar barns along Eastside Road and the town has a history of not allowing such structures to be converted into living spaces. He is concerned about a precedent being set that would change the character of the road and requested the board to consider this during its deliberation, and also to consider the issue of fairness as previous applicants have been denied.

Mr. Sorenson asked the board to address Article 9.1.6 in the Shoreland Overlay Ordinance, raised by Don Scott, addressing setbacks from the high-water mark as well as setbacks from side or rear boundaries. Jay Jacobs wondered if the applicants should file a new, or amended, application requesting the Special Exception and Variance. Mr. Sorenson agreed, recommending that a new or amended application be filed that would address the request for the Special Exception for the increase in volume and to address whether a Variance is required under 9.1.6 addressing the side deck and stairs, including provisions for a hardship.

The meeting would be continued but, because the application would be new, notices were required. It was the applicants’ decision whether or not to apply for the Special Exception for the increase in volume. If the applicant would like to continue with the proposal on the deck, they need to address whether 9.1.6 applies regarding the limitation on setbacks, and whether they want to apply for a Variance. All of the materials in the original application should be included. The applicant noted it was likely the deck design would change. Any amended application also would be re-noticed. The applicant asked if the height were not increased, would they need to apply for a Special Exception. The board confirmed such a proposal would require a building permit application only, as long as the volume remains the same and any alteration was in a direction away from the non-conforming aspect.

Abutter Judy Putnam asked if the board was now allowing two dwellings on one property. She described the features and argued their own similar proposal was denied for the same reason that two dwellings were not allowed. Mr. Jacobs reiterated the abutters’ attorney’s argument in a recent application that such a proposal did not constitute a dwelling because it did not include cooking facilities. Rosamund Delori agreed it didn’t feel fair but expressed hope that the abutters could work with the applicant to come up with a mutually agreeable solution.

The ZBA then confirmed that the Bemis application would be continued to the October meeting and notification would be pending submission of the amended application.

Marcia Luciano, 264 Hancock Road, Application for Variance for a Deck (Map 21–Lot 14)
Property owners along Skatutakee Lake own a 1935 home and hope to rehabilitate and expand the structure within the same footprint. They also propose a cantilevered deck, extending 4’ out over toward water, but with no bracing into the ground. State approval for septic was granted, as well as the Shoreland Permit. There would be no additional bedrooms, just an increase in height to move the existing 2 bedrooms to the second floor. The Shoreland Permit notes that total impervious cover would not exceed 20%.

Upon review, the board ascertained that the addition of a deck extending over the land could not be allowed under the ordinances because of the setback requirements in the lakeside district. Ideas were offered to alter the deck design, which the applicants will consider. The board also confirmed that the applicants would need to apply for a Special Exception for the increase in volume of the structure but that a Variance for the deck could not be granted as it would increase the existing non-conformity. A new application was required, including noticing. The board also asked for plot plans and for filing as close as possible to the 1stof the month.

In follow up discussion on the definitions in town ordinances which the ZBA hopes the Planning Board will clarify, and abutters’ concerns that the ZBA is allowing more than one dwelling on a parcel, the ZBA identified Article 4.1.6 within the General Provisions as potentially relevant to the Bemis application. Article 4.1.6 states the following:  No more than one building used for dwelling purposes shall be erected or placed on a lot, unless such construction is part of an accessory dwelling unit (ADU) as specified in Article XXIX or a multiple-family development approved by the planning board or is a permitted accessory use in the district. No lot shall be occupied or used for more than one principal use. One or more detached accessory buildings may be located on the same lot as the principal building, provided that all other requirements are met.

Mr. Sorenson noted this should be brought to the applicants’ attention, which the Chairman will do.

The meeting adjourned at 9:40 pm.