Zoning Board of Adjustment

Town of Madison

PO Box 248

Madison, NH 03849

Minutes

August 19, 2009

Members Present: Henry Anderson, Peter Craugh (7:16 P.M.), Ken Hughes, Kevin O’Neil, and Mark Lucy - Chair

Members not Present: Jay Bisio

Staff Present: Wendy Huff – Administrative Assistant

Others Present: Faye Melendy, Margie MacDonald, Mr. & Mrs. Bain, Will Dodge – Downs Rachlin Martin, Peter DeMarco – AT&T, Ron Frizzell – Mt. Washington Radio, Andrey Tsikanovsky – Hudson Design Group, Russell Mathers – SAI, Philip Markus, Paul Gustavson, Mike Connolly, Janice Connolly, and Marc Ohslon – PB Chair

Meeting Agenda Posted: 8/5/09 at Madison Town Hall, Madison Post Office, Silver Lake Post Office

1. CALL TO ORDER: Mr. Lucy called the meeting to order at 7:03 P.M.

2. ROLL CALL: Mrs. Huff called the roll. Mr. Lucy stated that complaints regarding the conduct of the Board at the July meeting had been received. As the Chair responsible for the Board, he apologized on behalf of the Board, noting that the Rules of Conduct apply to all.

3. NEW HEARINGS:

              Case 09-08: AT&T, 97 Oak Ridge Road, Tax Map 101 Lot 22, Eidelweiss Residential District, for an Area Variance (on property owned by the Village District of Eidelweiss and leased by Alvin J Coleman & Son) pursuant to Madison Zoning Ordinance Section IV.5F. The applicant proposes to construct a 10’ x 12’ building thirty feet from the center line of the road where seventy-five feet is required.

Notice was made in the Daily Sun and posted at both post offices and the town hall. Abutters were notified by certified mail on 8/5/09. All return receipts have been returned except for Steven Bayliss & Brian Silcox. All fees have been paid. No waivers have been requested. Mrs. Huff reported receipt of correspondence from Mr. Dodge, outlining the project, and from David Wittmann – Verizon, noting that a request had been made by the applicant to delay the previously required plantings at the site as a result of Planning Board and the Zoning Board approvals.

The Board was queried for conflicts of interest. Mr. Craugh had expressed his intent to recuse himself from the case via email to Mr. Lucy. Mr. O’Neil noted that he lived on Oak Ridge Drive in Eidelweiss but felt he could act impartially. Mr. Lucy informed the applicant that if Mr. O’Neil was raised to voting status, there would be a four member board; the applicant  may request a continuance until a five member board is available. Mr. Dodge, representing the applicant, stated he had no objections to Mr. O’Neil being seated and expressed willingness to proceed with a four member board. Mr. O’Neil was raised to voting status. The board agreed that the application was not of regional impact. Mr. Lucy swore in all those who would be speaking to the application and briefly reviewed the Rules of Procedure.

The public hearing was opened at 7:10 P.M. Mr. Dodge explained that the property is owned by the Village District of Eidelweiss (VDOE) who leased a 50’ x 50’ area for a communications tower and equipment shelter to AJ Coleman & Son for 99 years. Mt. Washington Radio became the tower manager and erected a new radio tower, offering co-locations on the tower. Resolutions of conflicts between VDOE and various tower users have been on-going over the last several years. The VDOE Commissioners have reviewed and approved the current plans.

AT&T proposes to erect a 10’ x 13’ equipment shelter, placing it next to the original equipment shelter, which will match the design and construction of the two existing shelters on the site. The roof will be extended over all three structures to make them appear as one building. The three orange “bay” antennae will be replaced with three flush-mounted antennae. A generator will be placed on the site to serve all tenants. An 8’ tall chain link fence with green vinyl slats will be erected around the 50’ x 50’ perimeter. Mr. Dodge stated that placement of the equipment shelter will require a 35’ variance from the center of the road. He noted that having one tower at this site with encouraged co-location limits the number of towers needed in town and placement of the proposed shelter groups everything together to minimize the impact.

It was clarified that the proposed fence will screen the structures from vehicular traffic and there is security wire on the top of the fence. Verizon Wireless has been requested to delay their required plantings until after construction of the proposed shelter, if approved. The plantings are to help the overall aesthetics of the site.

There were no comments from the public in favor or in opposition. In response to a question from Mr. Hughes, Mr. Dodge explained that the proposed plantings on the outside of the fence may not be in the 50’ x 50’ leased area. A survey will be completed to clarify all boundaries and an easement with VDOE may be required for the plantings. Mr. Lucy noted that a survey may show that a variance greater than 35’ may be required; Mr. Dodge asked for consideration of flexibility in the wording of an approval, if so granted, based on the existing plans. Mr. Tsikanovsky verified that the application plans were signed by a licensed surveyor and correctly reflected the location of the structures.

Mr. Craugh was sworn in and offered the following comments: two air conditioners are proposed but are not shown on the plan, the antennae are not mounted as indicated, and the plantings should be other than arborvitae. Mr. Lucy noted that the plantings will be considered during site plan review by the Planning Board. Mr. Dodge stated that the air conditioners are on the rear of the proposed structure and Mr. Mathers noted that they are 2’ off the ground and approximately 2’ from the structure. Mr. Lucy stated that the variance request is from the center line of the road and the air conditioner placement is not pertinent to the application.

There was no further comment from the public. The hearing was closed at 7:37 P.M.

Summary of Facts:

• The property is Tax Map 101 Lot 22
• Application is for installation of a 10’ x 13’ equipment shelter, to be directly integrated as an extension to the existing Mt. Washington 10’ x 13’ equipment shelter located to the immediate north of the radio tower, and designed to match the architectural features of the existing Mt. Washington and Verizon equipment shelters. The proposed structure will be consistent with the plan by Hudson Design Group, last revised on 7/2/09.
• The roof extension will run from the existing Mt. Washington 10’ x 13’ equipment shelter to the recently installed Verizon equipment shelter, establishing a “breezeway” and creating the overall appearance of a single shelter to house all equipment for the radio tower.
• Three large orange “bay” antennae will be removed from the radio tower and replaced with three flush-mounted AT&T panel antennae with a centerline elevation of 47’.
• A 50kw diesel generator will be installed on a concrete pad on the northeast corner of the 50’ x 50’ leased premises to service all facilities at the communications site.
• An 8’ chain link security fence will be installed around the 50’ x 50’ perimeter of the communications site, with a 12’ gate entrance and green slats to improve aesthetics.
• Twenty-eight arborvitae will be planted on the exterior of the fence for aesthetic mitigation.
• Construction will require the delay of plantings by Verizon as required by Planning Board site plan approval on 3/4/09 and Zoning Board approval for an area variance on 4/15/09.

Deliberation: The Board reviewed the criteria for an area variance. It was agreed that that because the area in question is of a commercial nature, there would be no diminution of surrounding property values, especially with the fence to screen the structures. Mr. O’Neil stated that he feels the area is definitely residential, but that the proposed project is acceptable for the location. The Board felt that encouraging co-location would not be contrary to the public interest or the spirit of the ordinance and would do substantial justice. Due to the 50’ x 50’ area, it was agreed that there was no other placement for the proposed shelter which is needed to house equipment. It was noted that any further expansion of services may require an expansion of the leased area. Mr. Lucy moved, seconded by Mr. Hughes, to adopt the Summary of Facts as the Finding of Facts. Motion passed.

Vote: Mr. Lucy moved, seconded by Mr. Hughes, to grant the variance request as specified in the Finding of Facts. Motion passed. Mr. Lucy read the procedures for appeal. Case closed.

Mr. Craugh joined the Board; Mr. O’Neil stepped down.

              Case 09-09: Ralph S & Mary D Bain, 599 East Shore Drive, Tax Map 135 Lot 8, Residential District, for Area Variances pursuant to Madison Zoning Ordinance Section I. 3B to allow construction of a second floor addition, resulting in a height expansion greater than the current roofline.

Notice was made in the Daily Sun and posted at both post offices and the town hall. Abutters were notified by certified mail on 8/5/09. All return receipts have been returned except for Florence Leech & Richard & Karen Silloway. All fees have been paid. No waivers have been requested. The Board accepted the application as complete.

The Board was queried for conflicts of interest. Both Mr. Hughes and Mr. O’Neil noted a business relationship with Mrs. McDonald but each felt they could be objective. The applicant had no objections to them remaining on the Board. Mr. O’Neil was raised to voting status. The board agreed that the application was not of regional impact. Mr. Lucy swore in all those who would be speaking to the application and briefly reviewed the Rules of Procedure.

The public hearing was opened at 8:03 P.M. Ms. Melendy, representing the applicants, explained that the oldest portion of the house was built in 1944 and the Bains have lived in the house since the 1980s, having purchased it in 1954. She shared photographs of the dwelling which is non-conforming due to property and lake setbacks, and noted that the square footage of each portion of the dwelling is on the plat. The applicant proposes to increase the dwelling by 50%, allowed by zoning for a non-conforming structure, but wishes to expand upwards in a second story rather than laterally, expanding the footprint. The allowable 50% is an expansion of 992 square feet. Expanding upwards requires a variance for expansion taller than the existing roofline. Ms. Melendy noted that the abutting properties all had two story structures. She offered a computer conceptual composite of what the second floor expansion would look like, explaining the elevation increase would be 9.19’ above the highest existing roofline in the middle of the existing structure due to the slope of the property. She provided clarification that the composite picture was an estimate only, as it did not represent 992 square feet. Ms. Melendy felt an upward expansion would minimize the impact on the property, already overburdened by the footprint sprawl of the existing dwelling.

The following comments were offered in favor of the application:

• Philip Markus (abutter): The Bains have been excellent neighbors; the neighborhood consists of two story dwellings; the application would make the neighborhood more harmonious; the second story addition will not impact the lake view; expansion of the footprint laterally would create more impermeable surface
• Paul Gustavson (abutter): The Bains are good neighbors; supports the application; the addition will impact his view but suggested that a few trees could be cut to allow a side view of the lake (Mr. Lucy noted that any such agreement would be a private one between the applicant and Mr. Gustavson.)
• Margie McDonald (listing agent): Her professional opinion is that the expansion will enhance the neighborhood and improve the market value of the surrounding area; market studies show that the most desirable lots on the lake are those with dwellings of 1,800 – 2,400 square feet, necessitating the addition; she noted that the addition would not increase the roofline height to the allowable 36’; she was not aware of any “tear down” plan for the property
• Wendy McDonald Morris (abutter): Would rather see an addition upwards, rather than laterally, making the dwelling more like others in the neighborhood; favors the application

Mike Connolly, the abutter to the south, spoke in opposition to the application. He agreed that the Bains have been good neighbors, but is concerned about existing sideline setbacks, stating that a deed restriction allows for a one story structure only. He offered a copy of the deed for the record. He also stated that the proposed addition would violate their view. He corrected the statement made earlier, noting that his dwelling is one story with attic space. Mr. Connolly questioned how often the 50% expansion rule could be exercised; Mr. Lucy clarified that it calculated from the existing footprint as of a date certain. Mr. Connolly also felt that increasing bedrooms would require a septic review; Mr. Lucy noted that the variance is for a roofline expansion and that septic and other regulations would be handled through the Code Enforcement Officer. Mr. Lucy also clarified that a deed restriction would be a civil matter, and that per the existing town zoning ordinance, the applicant may expand the dwelling by up to 50% without a variance as long as the non-conforming setbacks are not increased.

Ms. Melendy explained that the proposed expansion is based on the footprint existing as of March 2007, the adoption date of the zoning amendment. She further commented that the courts generally don’t allow action by a complainant for a perceived continued deed restriction issue if a complaint was never filed at the time of the original deed restriction violation. Ms. Melendy stated that the Connollys do not have a view easement and provided photographs that show that the primary view obstruction is not the Bain’s dwelling, but vegetation around the Connolly dwelling. The intent of the proposed addition is to minimize the impact to the Bain’s lot and to abutting lots.

Mr. Lucy recessed the meeting at 8:55 P.M.; the meeting resumed at 8:59 P.M.

Mr. Connolly again expressed his concern about the expansion, requesting clarification of the zoning ordinance regarding non-conforming structures. Mr. Lucy reviewed the ordinance, explaining that the footprint equaled the first floor living space and that a non-conforming setback cannot be increased by an expansion. Janice Connolly, abutter, was sworn in; she expressed concern that the lake is being suburbanized and is radically changing with expansions as proposed by the Bains.

There being no further comments, the public hearing was closed at 9:06 P.M.

Summary of Facts:

• The parcel is Tax Map 135, Lot 8
• Per the submitted plan, the dwelling may be expanded by 992 square feet; the expansion is based on the total square footage of the dwelling as of 2007
• Conflicting testimony regarding existing dwellings in the neighborhood was given; there are a combination of two story and one story dwellings
• The northern and western abutters are not significantly impacted; the abutters to the south feel their view is impacted
• A lateral expansion of 992 square foot would increase the impermeable surface within 75’ of the lake
• The southwesterly side setback is 22.7’, in place as of 1977
• The proposed expansion will be no higher than 513.92’ above sea level, with no lateral expansion

Mr. Craugh proposed some conditions that he felt should be attached to the decision; Mr. Lucy commented he is concerned about creating conditions over which the town has no control, including deed restrictions. He further commented that if requirements by other agencies are not met, the project would not continue through the compliance process.

Deliberation: The Board reviewed the area variance criteria: The current use is residential and would remain residential with little or no impact on surrounding property values. The public interest would be served by adding upwards rather than laterally, minimizing the impact on surrounding properties. The same benefit could be achieved by demolition and rebuilding, but would be cost prohibitive; the small lot would be better served by building up rather than out. Granting the variance would not increase the impermeable surface. The proposed use would remain residential which is not contrary to the ordinance. Mr. Lucy moved, seconded by Mr. Anderson, to adopt the Summary of Facts as the Finding of Facts. Motion passed.

Vote: Mr. Lucy moved, seconded by Mr. Craugh, to grant the variance with the following conditions: (1) the permissible upward expansion shall be limited to nine hundred ninety-two (992) square feet; (2) the proposed roof line will not exceed 513.92’ per NAVD 1929 (North American Vertical Detail); and (3) the existing footprint shall not expand laterally. Motion passed. Mr. Lucy read the rules for appeal. Case closed.

4. OTHER BUSINESS & COMMUNICATIONS:

Mrs. Huff provided information on the Fall Planning and Zoning Conference and the Local Government Center Law Lecture Series. She also provided a proposed budget, requested to be returned to the Selectmen prior to the next meeting. Mr. Lucy and Mrs. Huff were authorized to review the budget for submission on behalf of the Board.

5. APPROVAL OF MINUTES: Mr. Lucy moved, seconded by Mr. Anderson, to approve the minutes of 7/15/09 as amended. Motion passed.

6 CONTINUED HEARINGS:

Mr. Lucy noted his previous recusal and left the meeting. Mr. Craugh assumed the Chair. Mr. O’Neil was raised to voting status.

              Case 09-06: Silver Lake Station LLC, 1381 Village Road, Tax Map 118 Lot 32, Village District, for a Special Exception pursuant to Madison Zoning Ordinance Section IV.4B.2 and Area Variances pursuant to Madison Zoning Ordinance Section IV.5C. The applicant proposes to operate an ice cream and hot dog stand in the existing “Sterling Diner Car” and to construct a 20’ x 40’ garage; the Diner Car and Garage will be within the wetlands buffer setback.

Mrs. Huff provided copies of the Planning Board Site Plan Approval for the applicant, conditional upon receiving Zoning Board approval. Also provided were copies of a portion of a stamped plan by Charles Bollinger, Wetlands Scientist, delineating the wetlands on the property; there is a original of the full plat for the record. Mrs. Huff explained receipt of a verbal request for a waiver from the applicant for a certified plot plan. The applicant had previously provided a stamped letter from a licensed surveyor stating that all the boundaries and structures on the plat were accurate; the only missing information was the certified location of a rear lot line pin. There was brief discussion of the waiver request, with Mr. Hughes expressing concern that the Board needed to have enough information to render a decision, and that at the prior meeting, there was no wetlands information except as marked at the physical location. Mr. Hughes moved, seconded by Mr. Anderson, to waive the requirement for a surveyor stamped plat. Motion passed.

Mr. Ohlson was sworn in.

The public hearing was re-opened at 9:45 P.M. Mr. Craugh offered his apology to anyone who had been offended by his behavior at the last meeting. Mr. Ohlson, responding to a question, noted that the Conservation Commission had not been requested by the Planning Board to comment on the proposed application and that the PB approval was on the same plan as presented to the zoning board. There being no further public comment, the hearing was closed at 9:46 P.M.

Mr. Hughes requested clarification on the use of the diner; per the zoning ordinance definitions the diner would be considered a restaurant. Mr. Craugh explained that there were three aspects to the application: a special exception to operate a restaurant in the Village District, a variance from the wetlands buffer for the diner, and a variance from the wetlands buffer for the garage. He suggested discussing each request separately and the Board agreed.

The criteria for a special exception in the Village District were reviewed: The proposed use is compatible with the surrounding properties and the proposed structures are architecturally compatible with existing structures. The limited hours of operation will not significantly affect the neighborhood and the traffic pattern will not significantly change. There is adequate parking and minimum property line setbacks are in accordance with the ordinance.

Mr. Craugh moved, seconded by Mr. Hughes, to grant the Special Exception for operation of a restaurant in the Sterling Diner Car in the Village District. Motion passed.

Finding of Facts (variance from wetlands for the restaurant in the diner car):

• The property is Tax Map 118 Lot 32 in the Village District
• The proposed location of the diner car meets all current property line setbacks
• The size of the wetlands impacted is greater than .25 acres
• The distance from wetlands is 41’ from very poorly drained soils where 75’ is required and 15’ from poorly drained soils where 50’ is required
• There will be no effluent discharge from the diner other than gray water pumped to the existing ‘station’
• The diner car will not have bathrooms

Deliberation: Area variance criteria was reviewed: Members agreed that there would be no diminution of surrounding property values and that the use was not contrary to the ordinance. Members except for Mr. Craugh felt that the variance was not contrary to the public interest and that because of the uniqueness of the historic railroad and station, denial would be an unnecessary hardship. Mr. Craugh felt the proximity to the wetlands was too great an impact and that the diner could be placed elsewhere.

Vote: Mr. Craugh moved, seconded by Mr. Anderson, to grant a variance for placement of the Sterling Diner Car fifteen (15) feet from poorly drained soils and forty-one (41) feet from very poorly drained soils. Anderson – yes; Craugh – no (too great an impact on wetlands); Hughes – yes; and O’Neil – yes. Motion passed.

Finding of Facts (variance form wetlands for garage):

• The property is Tax Map 118 Lot 32 in the Village District
• The proposed location of the 20’ x 40’ garage meets all current property line setbacks
• The size of the wetlands impacted is greater than .25 acres
• The distance from wetlands is 10’ from very poorly drained soils where 75’ is required and 10’ from poorly drained soils where 50’ is required
• There will be no effluent discharge from the garage

Deliberation: The criteria for an area variance were reviewed, with the Board finding exactly as for the diner car.

Vote: Mr. Craugh moved, seconded by Mr. Anderson, to grant an area variance for placement of a twenty (20) foot by forty (40) foot garage ten (10) feet from poorly and very poorly drained soils. Anderson – yes; Craugh – no (too great an impact on the wetlands); Hughes – yes; and O’Neil – yes. Motion passed. Mr. Craugh read the rules of appeal. Case closed.

7. ADJOURNMENT

There being no further business, the meeting was adjourned on a motion by Mr. Hughes, seconded by Mr. Anderson, at 10:38 P.M.

Respectfully submitted,

Wendy J. Huff

Administrative Assistant

Minutes Approved: October 21, 2009

Corrections: