Zoning Board of Adjustment
Wednesday, November 17, 2021
The Harrisville Zoning Board of Adjustment held a regularly scheduled meeting and two public hearings on Wednesday, November 17, 2021 at town offices.
Members present: Chairman Charles Sorenson, Vice Chairman Rex Baker, Select Board Representative Jay Jacobs, Jeff Trudelle, Patrick Gagne, and Alternates Andrew Maneval and Hal Grant
Members absent: Alternate Pegg Monahan
Members of the public: Tom McGregor, Stella McGregor, Deb McWethy, Susan Brown
Chair Charlie Sorenson noted that the voting members for the evening included himself, Jay Jacobs, Rex Baker, Jeff Trudelle and Andrew Maneval. Member Patrick Gagne recused himself for the first hearing, as he was representing the property owners as contractor on the McGregor project.
Mr. Sorenson then opened the public hearing on the following:
Tom & Stella McGregor, 16 South Road (Map 40 – Lot 37), Applying for a Special Exception under Articles 5.4.1. and 9.1.6. to remove an existing 12’x18’ deck and, in its place, construct a 12’x18’ living room addition. The property owner also sought approval to remove two sets of exterior stairs, and to construct an 8’ x 12’ deck off of the addition, on the southeast corner of the home. Mr. Gagne noted that the existing lot is non-conforming, due to parcel size, and the structure is non-conforming due to proximity to the high water mark of Russell Reservoir, triggering the need for relief under 9.1.6. The proposed expansion will be no closer to the reference line than the current structure is. The proposal meets all setbacks other than the existing nonconformity. The applicants confirmed that a Shoreland Permit was granted by DES.
The board then turned to the question of impervious cover, and whether the total square footage of the modified structure would approach or exceed the threshold limit of 30% allowed by the town ordinances. Mr. Gagne noted that the existing impervious cover percentage is 12% and, with the modifications, would be 12.6%, still well below the allowable limit.
Chairman Sorenson noted that the deck is treated differently from an enclosed space, stating he believes 5.3.3. and 5.4.1. are relevant as well as 9.1.6. He read the provisions allowed as follows:
5.3.3. By special exception, a non-conforming structure may be expanded in either volume or area. This expansion must be in a direction away from the non-conforming aspect of the structure. For the purposes of this ordinance, open decks are not considered expansions; however, roofed porches are.
5.4.1. A structure on a non-conforming lot may be expanded in volume or area as set forth in 5.3.3. and replaced or relocated on the property by special exception of the Board of Adjustment.
Article 9.1.6. pertaining to properties in the Lakeside District reads No dwelling or structure other than docks or fences shall be erected closer than seventy-five (75) from the high-water mark. In the case of existing non-conforming structures, no additions shall be made which will be closer to the high-water mark than the nearest part of the existing structures…
Mr. Gagne noted the house lies 30’ from the road. He then described the existing versus proposed conditions as exhibited in the application materials.
Mr. Maneval offered that, while decks are treated differently, the board should consider how the ordinances define “structure”. He believes the fact the proposed addition would be no closer to the reference line would keep the proposal in keeping with the spirit of 9.1.6.
The board also considered that the proposed enclosure of the existing deck area for living room space falls into the category of expansion in terms of volume or area, as described in 5.4.1. and 5.3.3., and wouldn’t violate setback requirements in this instance. The relocation of stairs to the side of the house was viewed as more conforming. The applicant confirmed that the existing structure’s footprint would remain the same.
Returning to the definition of structure and structural footprint under the ordinances, decks are not considered part of the structural footprint. Members compared the definitions of structure and structural footprint and also considered how the term footprint is dealt with in the ordinances. ZBA members believed the fact that the deck in this instance is pre-existing, and the proposed expansion in volume would not expand the structure or structural footprint any closer to the reference line, meant the application falls within the spirit of the ordinances.
With no further questions, Jay Jacobs moved to approve the special exception under Article 5.4.1. and 9.1.6. for replacing (see application) the expansion of the open deck to an enclosed addition to the house and the construction of an 8×12 deck on the easterly side, not facing the water, as the plan proposes within all the setbacks. Mr. Sorenson confirmed that the motion on the floor is for the granting of a special exception for replacement of an existing 12×18 deck with a 12×18 living room addition and the construction of an 8×12 open deck. The 8×12 deck, as a condition of the special exception, cannot be enclosed. Andrew Maneval seconded.
During discussion, abutter Deb McWethy spoke in support of the proposal. The applicants confirmed that the addition area is for a sitting and reading room, not a bedroom.
The board then moved to Article XX to review the Special Exception criteria as follows:
22.214.171.124. The specific site is an appropriate location for such use. All agreed.
126.96.36.199. The use as developed will not adversely affect the adjacent area. All agreed.
188.8.131.52. There will be no nuisance or serious hazard to vehicles or pedestrians. All agreed.
184.108.40.206. Adequate and appropriate facilities will be provided for the proper operation of the proposed use. All agreed.
220.127.116.11. The proposed use shall comply with all the frontage, setbacks, minimum land area, sanitary protection, signs, and parking requirements for itself or its most similar use, except where specifically waived by the board, the reasons for such waiver to be set forth in writing by the board. Chairman Sorenson noted the waiver relates to the expansion in volume of a non-conforming structure.
Members voted unanimously in favor in a roll call vote. A formal Notice of Decision will be issued by the Chair.
The board then moved to the following matter:
Community Church of Harrisville and Chesham, 13 Canal Street (Map 32 – Lot 28), Applying for a variance to relocate and extend an existing wooden entrance/egress ramp to the rear of the building.
Jay Jacobs questioned the need for the ZBA to address the matter, given the nature of the proposal and given DES’s approval of the project. Charlie Sorenson confirmed that given the proposed expansion of an existing ramp and due to the nature of the non-conforming building and lot, and the impervious surface calculation, the ZBA needs to review the application. It is a change in a non-conforming lot and non-conforming structure. Mr. Jacobs agreed with the procedural need but requests that the Planning Board address issues such as this in the ordinances to streamline the process for property owners and town administration. Andrew Maneval agreed that this has come up often in discussion at both the Planning and Select Boards.
Lisa Anderson noted that the existing back steps and storage area for trash will be removed, which would reduce the impervious surface calculation, despite a proposed extension of the wooden access/egress ramp. Following further discussion on the property’s existing non-conformities, it was confirmed that the ZBA would review the application for a special exception and not a variance.
Andrew Maneval questioned why a variance wouldn’t be considered. Mr. Sorenson stated that the variance would be needed for an increase in impervious surface, as it was assumed an increase was occurring; however testimony was presented that the impervious surface area was decreasing.
With no further questions or concerns from the board, Rex Baker moved to accept the plans as drawn for the special exception, under Article 5.4.1., to relocate the ramp and increase its length to comply with ADA requirements for handicap accessible entrance to the church. Jay Jacobs seconded.
The board then reviewed the special exception criteria as follows:
18.104.22.168. The specific site is an appropriate location for such use. Members unanimously agreed.
22.214.171.124. The use as developed will not adversely affect the adjacent area. Members unanimously agreed.
126.96.36.199. There will be no nuisance or serious hazard to vehicles or pedestrians. Members unanimously agreed.
188.8.131.52. Adequate and appropriate facilities will be provided for the proper operation of the proposed use. Members unanimously agreed.
184.108.40.206. The proposed use shall comply with all the frontage, setbacks, minimum land area, sanitary protection, signs, and parking requirements for itself or its most similar use, except where specifically waived by the board, the reasons for such waiver to be set forth in writing by the board. Members considered language in the Federal ADA act under CFR (Compendium of Federal Rules) ADA Title II – 28 C.F.R. Section 35.130 (b)(7) as the basis for a waiver for lessened setback from the shoreland and change in location of the ramp. Members unanimously agreed.
Members subsequently unanimously voted in favor to grant the special exception. The chair will issue the Notice of Decision following preparation of minutes.
Mr. Maneval noted, given his commitments with the legislature, he may need to resign from the ZBA. As he is an alternate on this board, the chair and members noted that formal or immediate notice was not necessary.
The meeting adjourned at 9:00 pm.