Zoning Board of Adjustment
Wednesday, March 17, 2021
Meeting Minutes

The Harrisville Zoning Board held a regularly scheduled meeting on Wednesday, March 17, 2021 at town offices, 705 Chesham Road, and via zoom.  Chairman Charles Sorenson called the meeting to order at 7:00 pm.

Members present: Charles Sorenson, Chair; Hal Grant, Vice Chair; Kathy Scott, Select Board Alternate Representative; Rex Baker; Patrick Gagne; Andrew Maneval, Alternate
Members absent: Jeffrey Trudelle, Pegg Monahan
Members of the public: Erin Hammerstedt, Chick Colony, Holly Jackson, Richard Jackson, Ted Braun, Don Scott, Dan Langille, Michael Petrovick

Voting members
Mr. Sorenson stated that the voting members for the evening were Patrick Gagne, Hal Grant, Rex Baker, Kathy Scott and himself. Concerning the Braun application, Andrew Maneval would vote in place of Kathy Scott.

Mr. Sorenson then reviewed the procedural aspects of the hearings, explaining that, following the applicants’ presentations, board members and abutters would have the opportunity to ask questions. Then, the public hearing portion would close, and the board would continue with its discussion. The Chair invited the first applicant to proceed as follows:

Historic Harrisville, Inc. 187 Main Street (Map 30 – Lot 37)
Erin Hammerstedt, HHI Executive Director, presented the request for a Special Exception under Article 5.4 of the Zoning Ordinances to rehabilitate 187 Main Street as a 2-unit residence. She noted her understanding that the lot is non-conforming, regarding minimum land area and the location of the building in close proximity to the public right-of-way, but that the proposed use as a 2-family dwelling is permitted in the Village Residential District. HHI would like to add this residence to its affordable housing program, which currently is at capacity with a waiting list.

Ms. Hammerstedt and Chick Colony shared some of the history of the property and its characteristics, including that the structure’s original purpose was workforce housing for Cheshire Mills and possibly the railroad. HHI purchased the property in 2000 and is its 3rdowner.

Challenges of developing the site have included plumbing and lack of septic due to the building location and surrounding wetlands. A 2014 septic plan prepared by Tom Forrest, a septic designer, could work; however, Mr. Forrest recommends that HHI obtain ZBA approval for the use as a 2-family structure prior to applying to DES for the new septic system.

All of the proposed work would be contained to the interior, except for the need for a separate means of egress, via exterior stairs, which HHI envisions would be located against the building’s end wall. This addition would be required to meet building code.

Questions arose regarding plans and location for parking and adequate lot space to meet the needs of multiple tenants/vehicles. With the septic proposed for the corner of the lot bordering Stage and Dublin Roads, and the existing well and dangerous road curve at the west-facing end of the property, the applicants were asked their thoughts as to a viable plan.  Also raised was the adoption of a new wetlands ordinance, which establishes buffer zones for development within wetlands. Ms. Hammerstedt acknowledged these issues, HHI’s need to further explore solutions and to return to the ZBA once these details were in place. Their immediate request is for permission from the ZBA for the use, so that HHI could proceed to DES. Mr. Sorenson noted his concern about granting a Special Exception, given the multiple issues and the lack of a detailed plan before the board.

A lengthy discussion ensued. The applicant discussed the possible upgrade of the septic design, as well as the ability to locate the egress on the north-facing side of the building; a parking area on this side of the lot, however, would be within the 50 foot wetland buffer, requiring a variance. (A site plan referencing required wetland buffers, prepared by Don Scott, will be added to the public file.)

Mr. Sorenson again raised the matter of unresolved details and the lack of a concrete plan, showing the locations of the well and proposed septic, the proposed location of the new egress/stairway and whether or not this would be permissible given the non-conformities. He believes this needs to be part of the application, even if the use may be allowed and the exterior stairway could be designed away from the non-conforming aspect.

Abutter Richard Jackson spoke to concerns regarding visitor parking, particularly along Dublin and Willard Hill Roads, as well as the location of the septic. He also believes the house is in-adequately sized to accommodate two units. Ms. Hammerstedt spoke to the parking plan, noting the parking area would accommodate 4 cars and that HHI is willing to help manage overflow. Regarding the size of the structure, she shared calculations of the floor plans for each side, 1140 square feet per floor (2300-3400 total), noting they are adequate as well as in compliance with code for apartment sizes.  Kathy Scott explained the town and state parking restrictions along the roads.

As there were no further comments from the public, Mr. Sorenson closed the public hearing portion. The board resumed discussion, with members acknowledging concerns regarding parking and a driveway cut, though none expressed concern about granting approval for a special exception for the proposed use as a duplex in the district. They further discussed the possibility of granting the special exception but requiring that the applicant return to the ZBA for all other aspects, including egress, parking and septic and anything lying outside of the use and the four corners of the house.

In its preliminary referral to the Special Exception criteria, addressing Article The specific site is an appropriate location for such use, the board referred again to the new wetlands ordinance, which restricts the parking plan as discussed. Members noted that a new driveway cut may require DOT approval, in addition to review by the Road Agent. Regarding this article and subsequent special exception criteria under Article XX, the board agreed it did not have enough detail to proceed.

Though members struggled to address the criteria for a special exception without adequate knowledge of the plan for the site, they continued to agree that the proposed use was not the issue. They also agreed with the applicants’ position on the historic importance of the structure and its particular location. The idea arose to continue the application to a future meeting; however, the applicant requested at least a modified approval for the use, if possible, in order to proceed to DES with its septic application.

Following further discussion regarding options for a driveway and parking, Andrew Maneval asked if the board could comment on its approval of the proposed use, even if at this time it can’t definitively grant a special exception for the project generally, so that the applicants could convey to DES that the use is permitted. He asked that it be noted in the meeting minutes that the board agreed to continue the application submitted by Historic Harrisville, with the understanding that the Zoning Board is comfortable with concept of a duplex in this location; however, several questions need to be answered before it could grant a Special Exception for the project generally.

Mr. Sorenson subsequently moved that the Chair draft a Notice of Decision that incorporates the points made by Andrew Maneval and Kathy Scott regarding the board’s conceptual approval of the use, and that notes that the proposal by Historic Harrisville is consistent with the provisions of Article 5.4.1., but that other questions need to be addressed prior to granting a Special Exception for aspects not related to the permitted use. All voted in favor.

Kathy Scott recused herself for the second application before the board, which proceeded as follows: 

Theodore and Linda Braun, 293 Breed Road (Map 72 – Lot 6)
Don Scott, representing the property owners, explained the request for a Special Exception under Article 5.4 to construct a 20’ x 26’ garage at the end of the existing driveway, and a 4’-high retaining wall against the uphill slope.  He referred to the plot plan to describe the location and layout of the non-conforming lot and its existing structures, including the house, woodshed, driveway, and septic and leach field. Mr. Scott noted the existing impervious cover equals 19.2%. Under the proposed plan, impervious cover increases to 20.6% of the lot. The allowable limit is 30%.

Discussion turned to setback requirements under the ordinances and whether or not the proposed garage would be in compliance. Structures in the Lakeside District require a 15’ setback from both the road and property lines. Mr. Scott stated the closest structure, the existing woodshed, is 17.9 feet from the property line and that both the existing structures and proposed garage are in compliance. As an accessory structure, the proposed garage, stated Mr. Scott, meets the 75-foot required setback from the lake.

However, Article 9.1.6, it was noted, states that “Accessory buildings such as storage sheds and gazebos but excluding automobile garages(emphasis by ZBA Chair) may be located within the seventy-five (75) feet setback as a special exception… “ thus, Mr. Sorenson noted, the proposed garage is not included in the allowance.

Mr. Scott confirmed that a Shoreland permit is required, because they will dig for the garage foundation and retaining walls within the 250-foot shoreland buffer. The lot size is .43 acres.

Returning to the required setback from the lake, Mr. Scott explained that the proposed garage straddles the 75’ mark  but complies with the 15’ setback from the right-of-way.  Mr. Sorenson then asked why a variance isn’t applicable here, as the definition of a structure is “anything… having a fixed location on the ground…” The Chair suggested the application be amended to request a Variance.

Discussion turned to ideas for alternate locations for the garage, owing to the challenge of meeting the hardship criteria required for a variance. Mr. Scott and Mr. Braun explained that, to move the proposed garage 10 feet, the existing steep slope would be subjected to a much greater cut, more trees and vegetation would need to be removed, and much more of a retaining wall would be required.  The owners wish to disturb as little of the terrain as possible.

Board members emphasized that, for a variance, the applicant needs to prove the property has unique conditions. Additional comments were made regarding the potential loss of mature forested vegetation, damaging effect of hill-cutting on drainage and stormwater runoff and the fact that this is a corner lot.  Mr. Scott asked if the spirit of the ordinances isn’t to protect the lake. The board and applicant then addressed the hardship criteria, with Mr. Braun describing the nature of properties along Eastside Road and Westside Road, with comparatively more difficult conditions existing for Eastside Road properties closer to Breed Road.

Mr. Braun agreed to amend the application to request a Variance from the 75’ setback requirement under Article 9.1.6. Mr. Sorenson noted the amendment and the applicant initialed it accordingly.

With no additional comments or questions from the board, members turned to the specific criteria in Article XX required for a Variance, as follows: There would not be a diminution in value of the surrounding properties as a result of the grant of the variance requested. Members unanimously agreed there would not be. grant of the variance requested would not be contrary to the public interests.Members unanimously agreed it would not be.  By granting the variance requested, substantial justice would be done. Members unanimously agreed. The requested variance would not be contrary to the spirit of the ordinance.Members discussed this in the context of a 75’ setback to protect the lake. It was noted that most of the garage meets the setback (8 feet would not). Mr. Maneval noted he wished the ordinances were clearer, and that didn’t believe the spirit of the ordinance is intended to control the number of buildings near lakefront. Members unanimously agreed it would not be contrary. Unnecessary Hardship: Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship as defined by New Hampshire Revised Statutes Annotated Chapter 674, Section 33, as amended.

The Chair explained that unnecessary hardship requires the applicant to establish that, “owing to the special conditions of the property that distinguish it from other properties in the area, no fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; andthe proposed use is a reasonable one.

Mr. Sorenson offered an alternative definition of unnecessary hardship, which he believes to be more difficult to establish. He read, “If the criteria in subparagraph 1 are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to the special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinances and, therefore, a variance is necessary to enable a reasonable use of it.

Mr. Sorenson reviewed the special conditions previously stated, including the steep slope, the need to burrow into the hillside, thereby compromising slope stability and affecting drainage into the lake. The property owner added that several measures had been taken at considerable expense since purchasing it to improve stormwater management and enhance drainage to protect the lake. Mr. Braun added the concern that double walls, which would be required, would be more detrimental and would alter the appearance of the landscape along Silver Lake. Mr. Scott noted the risk of destabilizing the slope and recommends leaving the mature vegetation to allow for greater stability.

Upon the Chair’s request for comments from colleagues, Mr. Gagne and Mr. Grant agreed it was preferable not to have to cut into the landscape. Rex Baker also preferred to leave the landscape and proposed design undisturbed. Mr. Maneval emphasized the importance of not drawing conclusions of previous decisions on other properties. He then stated he believes the configuration of the property, its unique size and shape against the steep hill, and its location, constitute distinguishing features that meet the definition of hardship. In addition, in conjunction with earlier comments related to the public purpose of the ordinance and the application’s alignment with it, Mr. Maneval stated he was comfortable supporting a variance.  Mr. Sorenson agreed with his colleagues’ comments and asked for a motion.

Rex Baker subsequently moved to grant the Variance, allowing a garage to be constructed at 293 Breed Road that is partially inside the 75’ setback by Article 9.1.6, per the details submitted by the applicant. Hal Grant seconded. The board voted unanimously in favor.

Kathy Scott returned as a voting member for the final matter:

Daniel and Erin Langille, 30 Hurricane Lane (Map 20 – Lot 29-8)
Mr. Langille and his architect, Michael Petrovich, presented a plan for a 1-story bathroom addition to the residence, requesting a Variance from Article 6.1.3 in the zoning ordinances, which establishes a minimum distance of 40 feet for primary structures to the side and rear boundaries of the lot. The house meets the required setback from the public right-of-way. Mr. Langille noted he had spoken with the abutter adjacent to the proposed addition, and that she has no issues with the proposal. The applicants plan to enhance the border between the properties with additional plantings for privacy.

The subject property is a 5- acre lot, with 3 sides heavily wooded. The owner explained that the house sits on the southwest corner of the lot because of the steep terrain elsewhere. The location of the proposed bathroom addition off of the existing master bedroom was chosen for better flow with the layout of the house, as depicted in the floor plan submitted.

While members agreed with the logic of the architectural plan, the Chair asked if the proposal meets the unnecessary hardship criteria required for a Variance and why the property conditions are unique. Mr. Sorenson explained the need to outline the condition of the property that makes it different from others in the area. Members reviewed the site plan in more detail, asking why the addition couldn’t be located elsewhere. Mr. Langille noted the slopes. He then pointed to the location of the leach field to the north, the existing garage is to the south, and the existing screened in porch and well on the property’s other side. Siting the bathroom here would require significant plumbing expenses and a new well line.

Board members reviewed the variance criteria as follows: There would not be a diminution in value of the surrounding properties as a result of the grant of the variance requested. Members noted the absence of abutters and couldn’t see any evidence that the proposal would devalue surrounding properties. The grant of the variance requested would not be contrary to the public interests.Members unanimously agreed it would not be.  By granting the variance requested, substantial justice would be done. Members unanimously agreed. The requested variance would not be contrary to the spirit of the ordinance. Members noted that the spirit of the relevant ordinance referred to protecting privacy and preserving the essential character of the locality. Members unanimously agreed it would not be contrary. Unnecessary Hardship: Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship as defined by New Hampshire Revised Statutes Annotated Chapter 674, Section 33, as amended.  Mr. Sorenson restated the challenges sited by the applicant and why alternate locations were problematic, including the locations of the well and septic, as well as the slope as compared to flat properties. Members unanimously believed the constraints of the features of the lot met the criteria for hardship.

Mr. Sorenson then moved to grant the Variance to allow construction of the bathroom at the proposed location, extending 14’ into the 40’ side setback. Hal Grant seconded. All voted in favor.

With no further business, the meeting adjourned at 9:50 pm.