Zoning Board Minutes, September 18, 2012

Condensed from draft minutes

Members present: Charlie McCrave, Chair; Jeff Newcomb; Dan Coolidge; and Jim Delaney.

Also present for duration of appropriate item: James Emerson; Stacey Viandier, agent representing Mr. Emerson; Susan Schnare; Andy Prokosh; Bill and Betty Bardsley.

Public Hearing: A request from James Emerson III for a variance to permit construction of a residence. The property is located off Monticello Drive and is in the Rural / Agricultural District.

McCrave explained the procedure to the applicant, indicating they can proceed with four Board members present or wait until there is a full five-member Board. The applicant agreed to proceed with four Board members.

Viandier presented the application, indicating this is a 6.88 acre lot off Monticello Drive and is actually on a right-of-way. There are two homes beyond this property, one having been built prior to zoning and the other having been built in 1990 after being granted a variance. The deed includes a covenant indicating the property owners are responsible for the maintenance of the road, and if they do not maintain the road, they agree to hold harmless the Town of Andover. The covenant was read by Viandier to the Board and present public.

Mr. Emerson purchased his property in 2010, and it has less than the minimum of 250’ road frontage.

It was asked when this lot was created. In the 1920s and the right-of-way has been in existence since 1906.

Public comment was opened. Mr. Bardsley stated that the Board needs to find a hardship in order to grant the variance, and/or the applicant must indicate a hardship. Bardsley feels the hardship is self-imposed, as the applicant would like to sell the property. Bardsley asked if the Board had to consider this a hardship under those circumstances.

Schnare stated that a hardship has to show that the property is different than others in the area subject to zoning. She also feels this property is similar to her own and that denial of fair use is not what the Board wants to do. She feels hardship should be looked at, and the Board needs to determine what fair use of the land is, as it was purchased knowing it was unbuildable.

McCrave stated that financial loss or gain is not a hardship; however, sometimes the shape of the land can dictate a hardship.

The public comment was closed and the discussion was brought back to the Board. McCrave stated that Andover is full of backland on Class VI roads, and a right-of-way is not considered road frontage per the zoning ordinance. This is the type of development the ordinance is meant to prevent.

Coolidge stated he feels there is no hardship, as the applicant purchased the land knowing the zoning ordinance and feels there are no special conditions to warrant a variance. He would also like to know what assets the applicant has that can back up an agreement (deed covenant) and whether or not a town can legally walk away from its responsibility for providing services. He would also like to know from the fire department how hard it would be to provide services if this variance were approved.

Delaney states he feels a precedent has already been set with the 1990 approval for the Taylors and would like to know if property is not on a Class V or VI road, does road frontage need to be required? McCrave responded that the ordinance requires road frontage for any building lot.

Schnare stated that when she was on the Board, each application was viewed individually, and approvals did not set precedents.

Newcomb asked if the applicant had considered upgrading the right-of-way to a Class V road in order to have road frontage and not need a variance.

Viandier asked if a road would need to be paved, and Delaney responded that he did not feel it had to be paved if it was dirt or gravel originally.

McCrave asked who owned the right-of-way, and Viandier responded she was unsure and would have to do a title search for that information.

Newcomb asked what type of right-of-way – a single person with rights to reassign? Yes.

Coolidge asked what the page and book number at Merrimack County Registry of Deeds is for the right-of-way, and Viandier responded she could provide that.

Delaney asked if the hearing could be continued at a later date in order for the Town attorney and fire department to review the Taylor’s covenant and determine if it is legally enforceable. If not, is there someone who can create a covenant that is enforceable?

Prokosh asked if it is proper for Board members to state their position on hardships, and McCrave responded it is part of the voting process.

A motion was made and seconded to deny the application, as the applicant did not demonstrate any hardship. The variance was denied by a 3 to 1 vote.