August 12, 2002


The Chairman, Peter LaPolice, called the meeting to order at approximately 7:30 pm.


The Clerk, Mr. George LaBonte, Jr., called the roll:



Peter LaPolice, Edmund Gleason, Peter McNamara, Walter Kosik, Alternate David Hennessey



George LaBonte, Jr.


Mr. LaPolice informed that Mr. Hennessey would be voting in Mr. LaBonteís absence.




Case #2231 - ML 2-40 - BARTON, Thomas/116 Mammoth Road - Seeking a Variance to Article III, Section 307-12 to permit a single family residence to be constructed on a lot accessed by a private drive in the residential zone.


Mr. Gleason read the list of abutters aloud.There were no persons who did not have their name read, or who had a problem with notification.Mr. Gleason then read the corresponding Article aloud.


Attorney William Mason, representing Mr. Thomas Barton and Ms. Elena Rando, presented the case to the Board.He showed the Board a plan that was prepared in 1993, prior to the applicant purchasing the parcel.He said that the parcel contained approximately 4.5 - 5 acres that contained an existing single family home.He pointed out the private drive (from Mammoth Road) that provided access to the existing home and noted the area where a proposed single-family home (for Ms. Rondoís parents) would be located on approximately one acre.He noted that the proposed lot would be accessed by the existing private drive.Attorney Mason informed the Board that the applicant would agree, if the variance were granted, to have no further subdivision of the property.He said that the applicant would also provide the Town with a release of liability for maintenance of the private drive.He said that if the parcel were subdivided, there was enough land to split into four lots.†††


Mr. Kosik asked if the cul-de-sac shown on the plan was being proposed.Attorney Mason said the plan had been drawn in 1993, which showed how a road (and cul-de-sac) could be laid out.He said he used the plan solely to demonstrate the configuration of the parcel and show where the existing home and driveway were located.He said it was not a dedicated right-of-way and had not been before the Planning Board.


Mr. Hennessey asked the age of the home.Attorney Mason said the applicant had purchased the home two years ago, but it had been built in 1993.Mr. Hennessey asked if a variance had been granted at the time.Attorney Mason was not aware if a variance had been granted.Mr. Kosik said there was a variance for the house.He said there were no conditions mentioned in the minutes from the meeting that granted the variance.He provided a copy of the meeting minutes to the Chairman.


Mr. LaPolice asked if the parcel was land-locked.Attorney Mason said the applicant owned a 50ft. strip of land from Mammoth Road to the parcel.


Mr. Kosik asked what the size of the proposed lot would be.Attorney Mason said it would be approximately one acre.He said it would conform to the current subdivision regulations except for the frontage onto a Town approved street.


Mr. Hennessey asked if the land had been previously subdivided and the portion shown on the plan was the remaining area.Attorney Mason did not know.Ms. Rando said that the Spaulding family owned the surrounding property and had given the parcel being discussed to their daughter.


Mr. Gleason asked if all the front lots obtained variances.Mr. Kosik didnít believe so.Mr. Gleason asked if the land would be subdivided once the variance was granted.Attorney Mason said that the applicant only wanted to take a portion of the existing lot and build a home forMr. Randoís parents.He reiterated that the applicants were prepared to add a stipulation for the variance that there would be no further subdivision as well as a letter for release of liability for maintenance of the road.Mr. Gleason noted that the existing property had a variance and they were seeking an additional variance because they would be subdividing into two parcels.He said there would then be two lots with a variance.Attorney Mason said the alternative would be to weigh the options of building the road and going before the Planning Board to request a four-lot subdivision.Mr. McNamara asked if the land was subdividable.Ms. Rando said there were no wetlands.Mr. Kosik asked if a subdivision could be granted without the frontage.Mr. McNamara answered no.There was a brief discussion regarding subdividing the parcel.Mr. McNamara noted that the Planning Board no longer granted shared driveways based upon input from the former Planning Director, Clay Mitchell.


Attorney Mason read the following criteria aloud:


Item #1.There will be no decrease in the value of the surrounding properties: The proposed dwelling to be of equal or greater value than the surrounding properties.


Item #2.It is in the public interest: It represents an appropriate and reasonable use of the property, which will be a benefit to the Town


Item #3.There is significant hardship to the land: There is already a home, which is accessed by the existing driveway.The proposal represents a less intense use of the land.The development of the lot will not interfere with the public or private rights of others.


Item #4.There is substantial justice to be done: The residential use is consistent with the uses permitted in the area.


Item #5.This request is within the spirit of the zoning ordinance: Because all other zoning, health and safety codes will be met.


Mr. Hennessey asked if access could be gained from any other road, other than through the 50ft. access from Mammoth Road.Ms. Rando answered no.Mr. Kosik said there was a cul-de-sac behind the cemetery.Attorney Mason said there were no residential developments that would tie into the proposed parcel.


There was no public input, wither for, or in opposition, of the application.


Mr. McNamara said the problems he had with the application was that the existing property was accessed by a variance and if granted an additional non-conforming lot would be created.He said the shared driveway was also an issue.Mr. LaPolice asked if there were specific issues that the Town had to bear in relation to shared driveways.Mr. McNamara said that the Planning Board was not involved, but the former Planning Director alluded to the fact that the Town was brought into litigation.Attorney Mason said that a document would be submitted releasing the Town from any liabilities.He said they were willing to rely on the Planning Boardís decision regarding the access.Mr. Hennessey suggested requiring two side-by-side driveways with cross easements.Mr. Gleason said the state would have to be involved if there were going to be any additional driveway cuts onto Mammoth Road, which was a state highway.Attorney Mason agreed that the state would have to revisit the plan for compliance.


Mr. Hennessey asked if the applicant was aware of the plan at the time they purchased the property.Ms. Rando answered no.


The Board discussed the application.Mr. Kosik was not in favor of having the Town maintain the road.Mr. Hennessey felt consideration should be given to the fact that the Town would benefit with the limitation of development on the parcel.He also pointed out that the applicant was not aware of the plan when they purchased the parcel.There was a brief discussion regarding the hardship criteria, and if it could be applied to the application before the Board.Mr. Gleason reviewed the application noted the following discussion items: 1) parcel would be subdivided for family member; 2) no further subdivision beyond the additional lot; 3) relieve the Town of any liability and/or responsibility for maintenance of the private road; 4) if variance granted, Planning Board approval would be needed for the subdivision; 5) revisit with DOT the curb cut and access road onto the state highway (Mammoth Road).Attorney Mason said he was agreeable if the discussion items were conditions for the variance.Mr. Gleason said the items could be conditions, excluding item number one.†††


Mr. LaPolice wanted to know what subdivision regulations would be violated if the variance were approved.Mr. McNamara didnít believe that there was a question of violating anything, but there would be conflict with the single driveway.The Board discussed what possible action the Planning Board would take.It was decided to vote on the variance as set forth with the conditions stated by Mr. Gleason.


Mr. Kosik indicated if there were to be a further subdivision, the applicant would need to come back before the Board.



(Gleason/McNamara) The variance, if granted, shall be subject to the following conditions: 1) no further subdivision beyond the requested additional lot; 2) relieve the Town of any liability and/or responsibility for maintenance of the private road which gains access to the property; 3) applicant will seek Planning Board approval in accordance with the regulations; 4) revisit with DOT the curb cut and access road onto the state highway (Mammoth Road).



(5 - 0 - 0) The motion carries.


The Board then completed their ballot vote as follows:




Mr. LaPolice - Yes - final approval subject to provisions stated by Mr. Gleason

Mr. McNamara - No - (voted yes on diminution of surrounding property; voted no for benefits of public interest; voted no on the unnecessaryhardship conditions; voted no for substantial justice; voted no for contrary)

Mr. Gleason - Yes - to all conditions and yes subject to the conditions recorded in the record.

Mr. Kosik - Yes - conditions as stipulated

Mr. Hennessey - Yes - to all conditions and yes to approval subject to the conditions set forth




(4 - 1 - 0) The motion carries.Mr. McNamara voted no.






Mr. Gleason informed that the Planning Board modified their operating procedures and raised their application fees to $10.00 due to the rise in postage costs for certified mail.He suggested raising the Board of Adjustmentís costs to be consistent with the Planning Department.†††††




(Gleason/Kosik) To raise the application costs to $10.00 to maintain consistency with the Planning Department.



(5 - 0 - 0) The motion carries.

Mr. Gleason also noted that the former Planning Director changed the regulations, in accordance with RSA 676:4, I, d for abutter notification, requiring the applicant to obtain the list of abutters from Town records within five days of notification.He read the language into the record and noted that the procedure was in place for the Planning Board and recommended that it also be in place for the Board of Adjustment.There was a brief discussion regarding the language and the Board agreed to have the Planning Department modify the document to incorporate the name of the Board of Adjustment.




(Gleason/McNamara) To adopt the proposed document once it has been modified by the Planning Department to incorporate the name of the Board of Adjustment.




(5 - 0 - 0) The motion carries.







The motion was made and seconded to adjourn the meeting.


The meeting was adjourned at approximately 8:30 pm.


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Respectfully submitted,


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Charity A.L. Willis†††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Recording Secretary