Zoning Board of Adjustment
Wednesday, November 16, 2022
Meeting Minutes

The Harrisville Board of Adjustment held a regularly scheduled meeting and public hearing on Wednesday, November 16, 2022 at the Harrisville Town Offices, 705 Chesham Road.

Attendees: Charles Sorenson Chair; Jeffrey Trudelle; Patrick Gagne; Andrew Maneval Alternate; Hal Grant; Pegg Monahan Select Board Representative. Absent: Rex Baker Vice Chair

Members of the public: Jonathan Richardson; Richard Clark of RW Clark Construction; Don Scott; Akhil Garland; Lee Garland

The Chair opened the meeting at 7:09 pm.  He noted that the voting members for the evening were as follows: Hal Grant, Jeff Trudelle, Patrick Gagne, Pegg Monahan and Charlie Sorenson. He then explained the procedure for the public hearings.

Business proceeded as follows:

Barbara Michelson and James Heffron, 58 Bancroft Road (Map 60 – Lot 64) – Contractor Rich Clark of RW Clark Construction represented the property owners. Their project for an Accessory Dwelling Unit (ADU) was approved by the Harrisville Planning Board on condition that the applicants obtain a Special Exception from the ZBA for location of the structure within the 50-100 foot wetland buffer.

Chairman Sorenson also noted the relevance of Article 5.3.2., allowing non-conforming structures by special exception to be replaced and relocated to a more conforming location, and Article 5.3.3., permitting the granting of special exceptions for expansion of nonconforming structures in a direction away from the nonconforming aspect, assuming all other conditions of the ordinances are met.

Mr. Clark explained that the ADU would replace an existing 13’ x 21’ shed with a slightly larger structure, 16’ x 24’ in dimension, to be located one foot further from the stream than the existing building. Referring to the submitted plot plan, Mr. Clark denoted the existing conditions, including the stream, ledge and existing septic system. The proposed location offers a slightly higher elevation, which also is why it’s desired, in addition to the limitations presented by adjacent conditions.  To keep the existing dimensions for the new structure, Mr. Clark explained, would make for extremely tight living space.

The chair addressed two aspects of special exception the board was dealing with: Article 12.6.1 requires a 100’ buffer around wetlands greater than 3,000 square feet; and Article 12.9.1. permits the ZBA to grant a special exception for accessory structures associated with legally preexisting primary structures, if it can be demonstrated that no practical alternative exists elsewhere on the lot.

Mr. Clark addressed why an alternate location would make for more disturbance of the property. He returned to the existence of ledge, and also that the consequence of locating the ADU downgrade from the proposed location would require a different septic, which the ADU and main house will both be tied into.  The board confirmed that adequate septic capacity exists for the additional structure. Mr. Clark further noted that the property owners will be restoring the existing wood road, a condition of the previous owners, with topsoil. The foundation would be slab on grade.

Satisfied that Mr. Clark had established there was no alternative location on the lot, the board turned to the five special exception criteria outlined in Article XX of the ordinances. The specific site is an appropriate location for such use.  The board considered the applicant’s description of site topography and conditions, restricted by the presence of the stream, ledge and wetlands. The use as developed will not adversely affect the adjacent area. Members agreed replacement of the existing structure with a 324 square foot ADU would not adversely affect the surrounding area. There will be no nuisance or serious hazard to vehicles or pedestrians.  The board affirmed no nuisance or hazard would result. Adequate and appropriate facilities will be provided for the proper operation of the proposed use. Members felt these requirements, including septic, were addressed by the Planning Board to that board’s satisfaction. 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. Mr. Sorenson confirmed that the proposed use was in compliance other than the fact that the board was waiving the location between the 50-100 foot wetland buffers.

Hal Grant subsequently moved to approve the special exception. Patrick Gagne seconded. The board voted unanimously in favor.  The Chair confirmed with Mr. Clark that the board would issue a formal Notice of Decision on the findings.

The ZBA then took up the following:

Andrew Macdonald, 133 Eastside Road (Map 72 – Lot 11), application for a Special Exception to construct a shed within the 75’ setback from Silver Lake and application for a Variance to locate the shed within the 15’ side property line setback.  The Special Exception relief for the setback from the water falls within Article 9.1.6. of the ordinances; the Variance for the side setback is required under Article 9.1.6.

Don Scott, representing the property owners, exhibited plot plans for existing and proposed conditions explaining the request for the structure for boat storage and the reason for the proposed location. The shed’s dimensions are 7’W x 21’L, or 147 square feet, and construction on the project was already started when the owner was told that zoning review was required.

Asked why no shoreland permit was applied for, Mr. Scott responded that no soil disturbance was involved and no machines or heavy equipment, so DES review was not triggered. The footings were hand-dug.

Mr. Scott cited state statute Env-Wq 1406.04 Activities in Protected Shoreland That Do Not Require a Shoreland Permit, which lays out situations under which a Shoreland permit does not need to be obtained, including “because the activity does not constitute construction, excavation, or filling.”  He read aloud the conditions for the exemption, all of which must be met, and which apply to  “(9) Placement of a single structure more than 50 feet from the reference line, provided that: a. The footprint of the structure is less than 150 square feet; b. No excavation or filling using mechanized equipment will occur in conjunction with the construction or placement of the structure; c. The structure will not be heated; d. The structure will not have electricity or plumbing; and e. The structure will not be used as living space for humans.” The board agreed that all of these conditions existed and that there was no violation of state regulations even though construction was initiated.

Mr. Scott proceeded with review of the site plan, pointing to the location of the shed relative to the house, the lake, the road and the side boundary. He also pointed to all the setback lines and to the recent, permitted and approved, stone infiltration bed, installed to handle runoff from the roof and improve drainage on the property. The infiltration bed lies between the house and the proposed boat shed. Aiming to protect this infiltration bed, the owner chose the location closer to the property line for the shed.

The board and applicant agreed to address the Variance criteria first, considering the conditions under which encroaching on the side boundary might potentially be allowed: The grant of the variance requested would not be contrary to the public interests. Mr. Scott pointed to the fact that no trees were cut, and that the infiltration bed mitigates stormwater runoff and mitigates erosion by capturing rainwater off the shed roof.  The Chair acknowledged this, but pointed to the public interest relative to preventing crowding in the lakeside district through enforcement of the side setbacks. Board members estimated that a 75’ distance exists between the proposed shed and the neighboring structure, a point that could be more relevant to criteria #1, effect on the value of surrounding properties.

Board members asked additional questions about options for different locations or designs, including attaching the shed to the house, that would negate the need for a Variance. Mr. Scott pointed to conditions, including crowding, the infiltration bed, sloping and existing stairs. A Special Exception would be still be required to expand a non-conforming structure, given the house’s location relative to the lake. 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 returned to the challenge of meeting the hardship criteria in this instance, as other location options existed, even if not desirable.  A property must have unique conditions, not created by property owners themselves, relative to neighboring properties. As currently designed, the shed is 2’ over the setback line on one end and 4.5’ over on the other.  Mr. Scott and the board further considered repositioning option alternate orientations. The chair and board agreed that no alternates were insurmountable, again if less desirable.

Hal Grant asked to move the question before the board, whether to grant the Variance for the location of the structure.  The Chair ascertained that there were no further questions from the board or public and entertained a motion whether to grant or deny the Variance based on whether or not the applicant satisfies all of the criteria.

Charlie Sorenson then moved to deny the Variance on the grounds that the hardship criteria are not satisfied. Hal Grant seconded.  The board voted unanimously in favor of the motion.

Returning to the Special Exception, Mr. Scott asked if this relief could be granted for an alternate shed location, not within the side setback for which the Variance was required. The board then considered the criteria in Article 9.1.6. for granting a Special Exception to locate a shed within 75’ of the lake as follows: The location and construction of the structure is consistent with the intent of the ordinance to maintain a vegetated buffer, which would meet the requirements of 15.8.1. Mr. Scott confirmed the location of the buffer line and that no trees would be removed. The structure is required as a shelter either for humans, equipment, or firewood. The shed is for boat storage only. The structure is customary or incidental to residential and recreational use. The board agreed Building placement: Buildings shall be placed in such a manner as to minimize impact on habitat and at such a location as to have the least impact on the watershed. Mr. Scott reiterated the function of the infiltration bed and added that the shed roof would be pitched in a way also to protect the area from erosion.

The Chair then presented the Special Criteria the ZBA must consider under Article XX: The specific site is an appropriate location for such use.  As the shed is for boat storage, the board agreed. The use as developed will not adversely affect the adjacent area. Mr. Scott noted the shed would not encroach on the 15’ side setback and vegetation would not be disturbed. There will be no nuisance or serious hazard to vehicles or pedestrians.  The board agreed. Adequate and appropriate facilities will be provided for the proper operation of the proposed use. No facilities would be required other than the structure itself. 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. In this case what would be waived is the setback.

Mr. Grant raised the issue that the board would be granting a Special Exception without knowing actual detailed plans. Mr. Trudelle agreed that the only site plan in front of the board was one that was rejected, and the board would need to know exactly where the shed would be located.  In the past the board has not approved a special exception without having an actual plan before it for consideration, though the board agreed the concept of a shed within the 75’ setback is not itself problematic.

The applicant was informed a new plan was required and the hearing would have to be re-noticed given the change in the plan.  Subsequently, Hal Grant moved to table the board’s consideration for a Special Exception until the next meeting, requesting that revised plans be submitted. Charlie Sorenson seconded. All voted in favor.

The board proceeded with the third application on the agenda:

Akhil & Lee Garland, 9 Island Street (Map 32 – Lot 24), applying for a Variance to expand the existing driveway, creating conditions of excess impervious cover under the ordinances, which establish an impervious cover limit of 30%.  The board considered that, though the proposed driveway material filtrates water, under Harrisville’s ordinances, all driveways, no matter the surface, are considered impervious.

Representing the Garlands, Don Scott shared photos and a site plan, denoting the location of the existing single lane driveway and the proposed location of the expansion adjacent to it. He noted that the Garlands received approval from both the Historic District Commission and Historic Harrisville for this same proposal. In addition, the property owners obtained a Shoreland Permit from DES, and is on file. Pegg Monahan noted the Conservation Commission also reviewed the project and had no objections.

Mr. Scott noted the existing impervious cover is 46.1%, 16.1% over the allowed amount. The additional driveway area would bring the calculation to 48.7%. The existing driveway is partially paved and partially dirt; the new driveway will be gravel with a stone bed underneath, allowing water to pass through. The abutter’s driveway is adjacent to the Garland’s existing driveway.

Mr. Scott addressed the individual 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.  Mr. Scott noted the proposed driveway would not be larger than existing driveways in the neighborhood and would not generate additional vehicles on the property. Further, it would help get vehicles off the street and reduce the movement of vehicles owing to the existing limitation of driveway space. The grant of the variance requested would not be contrary to the public interests. The proposal is in line with the interest of minimizing runoff and fostering infiltration in that the new surface will help absorb storm water and also help absorb the shedding of water off the existing driveway, and onto the road. The expanded driveway will reduce this sheet flow. By granting the variance requested, substantial justice would be done. The applicant addressed the commercial nature of Island Street, with an increasing number of vehicles being parked for church, to walk in the village, and to visit the library and the cemetery. Allowing the driveway would help solve the need for additional off-street parking in the second most congested area in the village. The requested variance would not be contrary to the spirit of the ordinance. The spirit of the ordinance, stated Mr. Scott, is to minimize surface runoff by restricting the amount of impervious cover. The driveway proposal would help foster this intent as the additional surface is designed to infiltrate water as well as to capture water off the existing driveway.  Less surface would leave the property with the addition of a pervious surface.

Mr. Sorenson highlighted that the spirit of the ordinance would never have contemplated an impervious cover of 46% on a property, and that existing conditions go against this spirit, even if they existed prior to current ownership. 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. Scott noted the special conditions of the property are how developed it is for the size of the lot, the urban character of the site, leaving little room for vehicles, particularly challenging with the town’s winter parking ordinances which prohibit street parking during storms. The homeowner has few alternatives using adjacent streets or church property for additional and guest parking.

The chair asked about other adjacent properties in the village district, in similarly condensed areas. Mr. Trudelle noted that this was a solution not only for the homeowner but for others seeking parking in the village. Mr. Sorenson stated his belief that the special condition of the property is not the property itself, built up over 150 years, but its location, a unique location in its being surrounded by frequently visited areas of town. Mr. Scott described it as similar to a town square.

Mr. Scott explained how pervious driveways work, allowing water to pass through. It was noted that the state recognizes these surfaces but the town does not.

Mr. Maneval asked what Mr. Scott’s interpretation is of the spirit of the ordinance relative to the intention of the ordinance to limit impervious cover to 30%. Mr. Scott explained the intention is to prevent the flow of water off people’s property to either neighboring properties or the road.  He confirmed with Mr. Scott that, by virtue of the surface material for the driveway, less water would come off the property, in keeping with the goal of the ordinance.  Pegg Monahan reiterated the Conservation Commission’s approval of the plan, believing less runoff would result. Mr. Sorenson agreed this point goes to the spirit of the ordinance, as well as to the public interest.

Abutter Jon Richardson spoke to the changes in the property over time, from a single family home to a multi-family with a driveway at either end of the building for the tenant and property owner. He added that they too have only a single lane driveway and otherwise must use their lawn. Mr. Scott noted the location of the septic on the Garland’s lawn. Mr. Garland noted how often his vehicle has been hit and expressed concern for pedestrians or cyclists should they be caught between vehicles backing out of the church and street parked vehicles.

Mr. Sorenson closed the public hearing portion for board deliberation. With no further comment from the board, Hal Grant moved that the application satisfies the Variance criteria as follows: No diminution of surrounding property values – All agreed. Not contrary to the public interest – All agreed. Substantial justice would be done – All agreed. Not contrary to spirit of the ordinance – All agreed. Unnecessary hardship – Members agreed that, owing to the unique conditions of the property, particularly its location, literal enforcement would result in an unnecessary hardship.

Mr. Sorenson noted the formal decision would be available next week, and that the Variance was granted.

Following approval of the minutes of the previous meeting, the board adjourned at 8:50 pm.