BOARD OF ADJUSTMENT Rye, New Hampshire Wednesday, July 2, 2014 Rye Town Hall 6:30 p.m.

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1 BOARD OF ADJUSTMENT Rye, New Hampshire Wednesday, July 2, 2014 Rye Town Hall 6:30 p.m. Members Present: Chairman Ray Jarvis, Vice-Chair Paul Goldman, Shawn Crapo, Patricia Weathersby, Alternate Charles Hoyt (arrived 6:55 p.m.) and Burt Dibble (arrived at 7:05 p.m.) Others Present: Building Inspector Peter Rowell, Planning Administrator Kimberly Reed and Town Counsel Michael Donovan. I. Call to Order and Pledge of Allegiance Chairman Jarvis called the meeting to order at 6:30 p.m. and led the Pledge of Allegiance. II. Approval of Minutes Meeting of June 4, 2014 The following correction was noted: 1 st page, the motion at the end of the page should read: Motion by Shawn Crapo to approve the minutes of May 7, 2013 as amended. Seconded by Burt Dibble. Vote: 4-0. Abstained: Patricia Weathersby (not present at the 5/07/13 meeting.) Motion by Patricia Weathersby to approve the minutes of June 4, 2014 as amended. Seconded by Shawn Crapo. Vote: 3-0. Abstained: Paul Goldman (not present at the 6/04/14 meeting.) III. Applications: 1. Dorothy M. Lincoln, for property owned and located at 250 Locke Road, Tax Map 12, Lot 8, requests Variances to Section 603.2, to remove an existing nonconforming building and construct new; to Section B(1)(2) & (7) to construct a dwelling 6 from the wetland and a septic system 40 from the wetland where 75 is required. Property is in the Single Residence District. Case #

2 Robert Lincoln, representing the application, presented to the Board. He explained that the lot is located at 250 Locke Road and is 1.41 acres. There is 109 of frontage, with 380 down one side and 324 down the other. There is 89 across the back of the property. There are three non-conforming issues with this lot. One issue is that one corner of the house actually sits on town property. A second issue is that the barn is 1 from the neighbors property. Also, the house is a two family house. He pointed out that when he grew up his grandmother and grandfather lived on the first floor and his family lived on the second floor. The house currently has two kitchens, four bedrooms and two bathrooms. He continued that the house is very dilapidated because maintenance has not been done on the property since the 70 s for lack of funds. He stated that the variance that they are requesting would do a number of things. It would enhance safety, enhance the neighborhood and make for a much safer environment. The request is for the house to be within all setbacks, off the road about 40. Those buildings would be removed so there would be one structure. He pointed out that there is a State approved septic design and the property has been surveyed. He also spoke with the Director of the Highway Department and his opinion was that this made all the sense in the world. (He reviewed photos of the existing conditions for the Board.) Member Weathersby stated that the variances that are being requested concern the wetlands. She asked Mr. Lincoln to speak to that. Mr. Lincoln pointed out the poorly drained soils on the map. He noted that there is a stream that parallels Locke Road from Central Road through the Philbrick property to the marsh behind the house. It is really not wet in that area. Member Weathersby asked if the wetland has been delineated by a wetland scientist. Mr. Lincoln confirmed. Member Weathersby stated that it sounds like the house would be further in the wetland if it is moved back. If it is moved forward it would be in the front setback and closer to the road. Mr. Lincoln confirmed. He pointed out that he has been working on this for a couple of years. He is trying to make the most reasonable request considering the hardships of this lot. It is a beautiful lot. He reiterated that there is a stream that runs behind it. One of the other things that should be taken into consideration, is that in coming out of the neighbors driveway they cannot see through the house to pull out onto the street. It is very dangerous on that corner. It is an area that is very difficult, as far as traffic and safety. After reviewing this with the engineer, he felt this was the most reasonable request. Vice-Chair Goldman stated that it is also noted on the application that a new septic system will be put in. Mr. Lincoln stated that he has a four bedroom State approved system. It is a new design and test pits have been done. Peter Rowell, Building Inspector, noted that the design and approval is in the file. 2

3 Member Weathersby commented that the house appears to be very large. She asked how large the home is and if it needs to be that size. Mr. Lincoln explained that the home is 2400sf. It is all on one floor. The existing house is 2429sf and the new is 2599sf, which includes 350sf over the garage. He reiterated that it is all on one floor compared to the existing home on two floors. He pointed out that the existing square footage also includes the driveway. The proposed home has two bedrooms and an office on one side, living room, dining room and kitchen in the middle. There is a master suite behind the garage. Member Weathersby asked if the part that is closest to the wetland is the master bedroom. Mr. Lincoln confirmed. He continued that his mother is elderly. This house has been in the family for four generations. He would like his mother to be with him for as long as possible. Member Crapo asked if there is a reason for not siting the front of the house right at the setback. Mr. Lincoln explained that the location he chose was for safety reasons. He felt that the farther it was off the road the safer it would be. He would not be totally opposed to that if the Board felt it would be a better situation. He pointed out that the corner is so sharp that he felt it would be better to locate the house as far off the road as possible. He noted that his neighbors, the Olsons and Mrs. O Malley, have written letters in support of the proposal because of the safety reasons. Chairman Jarvis asked how much the garage contributes to the footprint. Mr. Lincoln stated that it is a three bay garage. It is 29 x 22. Building Inspector Rowell commented that it is approximately 250sf per bay. Member Crapo noted that there are a few houses that sit further back that are nearer to Central Road. He asked where the water is in relation to those homes. Mr. Lincoln explained that in that area it is running up on the other side of Aldens property. It comes in on the Locke Road side of Central Road and it turns to the right. Note: Charles Hoyt arrived at 6:55 p.m. and was seated for Burt Dibble. Chairman Jarvis opened to the public in favor of the application at 6:55 p.m. Building Inspector, Peter Rowell, stated that the lot is subject to a reduced front setback because it would be the average of the two lots to each side, which would be 28ft. Mr. Lincoln pointed out that his proposal is at 35ft. Chairman Jarvis opened to the public in opposition of the proposal. 3

4 Jonathan Brown stated that his parents own a home on the adjacent lot. He noted that when it rains hard there s water and it is definitely a wetland. He does not agree with the characterization that the water is further back from the road. He thinks there should be some input from the EPA before a decision is made. He asked if the barn is being taken down. Mr. Lincoln confirmed. The plan is to take down both of the buildings that are currently there. Speaking to Mr. Brown, Chairman Jarvis asked if his property is across the street or west to Mr. Lincoln s property. Mr. Brown replied that his property is on both sides of the street. The part that he was referring to is on the same side as Mr. Lincoln s property. His fear is that if the home is built there will be a greater flow of water. Mr. Lincoln stated that the Town installed drainage on Locke Road on the north end of the property. At this end of the property, a catch basin was put at the top. A year later, a second catch basin was installed at the front of the house. The water runs down the road and the vast majority of water goes between those two catch basins down the road. He pointed out that he has photos showing the house sitting higher than the dirt elevation at the time it was constructed. Over the years, the road elevation has come to be 6 higher than the property. Now all the rain water that comes down the road runs between the barn and the house to the low end of the property. He continued that as part of the project, he would be willing to pay to make sure the water comes down the road and enters the catch basins, as opposed to entering the wetlands. If he has the ability to construct this new house, he will reconstruct the swale to make sure all the road water is caught in the catch basins. Member Crapo asked where the water would go if it went into the catch basins. Mr. Lincoln stated that the water comes down Locke Road and into the marsh. He thinks the catch basins go down to Recreation Road. Member Hoyt clarified that currently the water goes in between the barn and the house. Mr. Lincoln confirmed. Member Hoyt noted that a building will be put in and that will change the topography of that area. Mr. Lincoln confirmed. Member Hoyt clarified that none of the drawings presented show the solution. Mr. Lincoln confirmed. Vice-Chair Goldman asked if what is being proposed would actually solve the problem that Mr. Brown is bringing up. 4

5 Mr. Lincoln replied it would to a certain degree. The rainwater has to go somewhere. Even if the water goes through the catch basins it has to go somewhere. He thinks it will daylight at the gate to the recreation area. Hearing no further comments or questions, Chairman Jarvis closed the public hearing at 7:13 p.m. Member Crapo stated that he does not think they have enough information to make a proper decision. He thinks they need a more detailed plan that addresses some of the water and where the flow is going. Mr. Lincoln pointed out that there is a house three houses down that was approved with the same situation. Member Weathersby stated that the issue of the water coming down the street is not that big of an issue for the variances that are requested, which deal with the water in back. If the water coming down the road is diverted elsewhere it would improve the situation in back; however, even if nothing is done, the Board needs to decide if this is too close. She thinks the Board has the information to make a decision. Member Hoyt agreed. He thinks the Board needs to make up its mind on whether this structure is going to impede in a negative way on the wetlands. Vice-Chair Goldman stated that he feels similar; however, since there is testimony from an abutter who has a concern about it and there is not a remedy, he is questioning whether they have enough information about it. In regards to the application itself and the variances it calls for, he agrees that the Board can certainly rule on those variances. He asked if the Board should vote on the variances and condition them or vote and not condition them. A third alternative would be to validate what Mr. Lincoln has said would be a possible solution. Member Crapo stated that he is thinking this as well. Also, Mr. Lincoln has put forth the idea of putting the house closer to the setback that would put the house farther away from the wetlands. Vice-Chair Goldman stated that he understands why Mr. Lincoln set the house back where he did because of the safety issues. Member Weathersby stated that having the house further back does allow for more room for contouring the land so the water in front doesn t end up going in the back. However, that is not before the Board. She continued that it is close to the wetlands. Anything that would go there with any size for today s living would be close to the wetlands and the septic would. Crossing the wetland to get to the back would be even more of a disturbance. She continued that the proposed location is a logical place to put a house. It is a relatively modest size home and the septic really cannot go anywhere else. Vice-Chair Goldman stated that the plan is a good plan. If there is a possibility of an opportunity to make it more complete it is probably a good thing to do. It is a question that came up and 5

6 from a process standpoint he thinks they should deliberate and make sure they are clear in their minds to what is being done. Chairman Jarvis stated that the question in his mind is can the variances be approved conditioned upon some resolution of the drainage? Member Weathersby suggested that it could be conditioned upon Mr. Lincoln working with the Town of Rye to have the water from the property deflected to a catch basin. Chairman Jarvis stated that to the extent that construction on this lot is being proposed, it may exacerbate a drainage problem. Also, some kind of an analysis is needed. Mr. Brown has a concern the Board will approve a variance based upon the drainage being take care of. He continued that he does not feel that comfortable. He thinks this is a very small lot and they are trying to make the best of it. The final part of the puzzle is the drainage. Does the construction exacerbate things, is it neutral or does it make it better? Can something be done with the construction to make things better? Chairman Jarvis read letters from the abutters in favor of the proposal. Harold & Constance Olson, 236 Locke Road Marian Mullaly, 237 Locke Road In regards to stormwater drainage, Mr. Lincoln stated that the best thing he could do would be to put it into a catch basin. There are catch basins all over Rye. The situation cannot be worse than what it is right now. Stormwater is running down Locke Road going right through the lot. Chairman Jarvis asked if he has a proposal for the water. Mr. Lincoln stated that it is a simple job and will take a day at most to fix the problem. Mr. Brown stated that he is not opposed to the project as a whole. He thinks what is proposed makes sense from a personal point of view and makes sense for the neighborhood. His concern is locating the house so close to the wetland. He is concerned about the swale that runs across his property and the buffer being reduced. Member Crapo pointed out that someone could not build something without needing some form of relief. Member Weathersby stated that in order to get the septic approved so close to the wetland, NH DES looked at the wetlands and the plan. NH DES does not approve the siting of the house but the septic piece is checked. She pointed out that the Conservation Commission did not weigh in so the Board does not have their information to go on. Vice-Chair Goldman stated that he now sees that there are two concerns with regard to water. If there is something that can be done with water runoff from the street that is one thing. That is separate from where the house is going to be located with respect to the wetlands. He continued that he does not have a problem with making a decision with regard to variances on that. There 6

7 are two concerns that Mr. Brown has with the water. One is the street runoff and the other has to do with the wetlands in the back. Mr. Lincoln addresses making the street runoff problem better than what it is now. He agrees that it is probably a worst case situation right now and it would be better. He thinks this is somewhat independent in the decision that has to be made about how close the house boundary is with regard to the wetlands. He pointed out that the septic system has been approved and DES has been involved. The Conservation Commission has had the opportunity to be involved and were given notice that this was a potential project. The question is whether there should be any condition based on the fact that Mr. Lincoln proactively proposed a potential water solution. It is up to the Board to deliberate on that to decide if it should be part of the plan. Chairman Jarvis asked if the proposed home can be moved closer to the street without exacerbating the problem. Mr. Lincoln stated that one way or the other it is not going to change anything. He would be happy to move it closer to the road buffer to get farther away. He was thinking that another 10 back would be good in terms of safety on that corner. Chairman Jarvis asked if the line of sight would be significantly impacted if the home was moved closer to the road. Mr. Lincoln replied probably not if it was moved 5 to 8 forward. Chairman Jarvis suggested that the Board go through the requirements. He asked the Board if they would like to talk about conditioning this. Member Crapo asked if they are looking at this as if the front corner is moving up to the setback or as it is presented. Chairman Jarvis asked if there should be any conditions. Vice-Chair Goldman stated that there should be two separate conditions. One would be for the drainage plan and the second for the movement of the house. The variances get voted on based on the fact that there will be the two conditions. Member Weathersby asked if the house can be moved. The applicant has to make it work with the septic. Vice-Chair Goldman asked if it can be conditioned such that the plans are modified and approved. Member Hoyt stated that moving the house 5 or 10 is not going to make any difference. It is so close to the wetlands. There is no evidence to say that it is impacting the wetlands in a negative way or not. He asked if they should condition this on a drainage plan. 7

8 Vice-Chair Goldman stated that the Board has always been pretty proper about making sure that whatever is voted on is the plan that is in front of the Board. He is comfortable if there is a check and balance to make sure that the right plan is submitted and approved because the Board would be voting with that as a condition. Member Hoyt commented that they are having an issue on whether they should vote with conditions. This reverts back to what Member Crapo stated that there is not enough information to vote. Member Weathersby stated that she feels they have enough information. The question is whether moving the house 5 or 10 feet forward would make a difference. Member Crapo pointed out that there is a drain outlet that is about 1 away from the edge of the wetlands. If the house is moved 7 or 8 forward there is more land to filter the water before it gets to the wetlands. Building Inspector Rowell stated that if this is conditioned it will become his and the Planning Administrator s job to make sure it is put into the project. As long as it is clear, he will make sure the applicant has a drainage plan with the new setbacks before the house is built. Chairman Jarvis asked the Board if they are ready to review the requirements based on the application with two conditions; a drainage plan is provided and the home is moved away from the wetlands by a certain number of feet. Member Hoyt stated that he knows the property and he thinks the house is in a good location. He thinks it is well situated; unfortunately, it is close to the poorly drained soils. Member Weathersby asked what the purpose of the drainage study would be. Vice-Chair Goldman stated that the two conditions, in his mind, are a reasonable effort to take care of objections that were raised by abutters with regard to water runoff. The proposal by Mr. Lincoln to do something about water runoff addresses one of the water concerns that an abutter had. Also, moving the house is a step in the right direction in improving the second concern about the water runoff while still preserving a safe distance from the street so the view is not blocked. He is comfortable with this. Member Weathersby stated that she is in favor of moving the house 5. She does not see the purpose of the drainage plan. She can see it being conditioned upon working with the Town for a satisfactory resolution on the drainage coming down Locke Road. Chairman Jarvis commented that he is not sure that the water coming down Locke Road is really the applicant s problem. Member Weathersby stated that she is not sure why they would require a drainage plan if they are not going to do anything with the information. 8

9 Chairman Jarvis agreed. He would suggest moving the house off the wetland an additional 5 and go forward. Chairman Jarvis called for a vote on the variances requested; 1. The variances are not contrary to the public interest? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 2. The Spirit of the Ordinance is observed? 3. Substantial justice is done? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 4. The values of surrounding properties are not diminished? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 5. Are there special conditions of the property that distinguish it from other properties in the area? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 9

10 6. There is no fair and substantial relationship between the general public purposes of the ordinance provisions and the specific application of those provisions to the property? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 7. The proposed use is a reasonable one? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 8. Therefore, literal enforcement of the ordinance would result in unnecessary hardship? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes Motion by Patricia Weathersby to grant the variances requested by Dorothy M. Lincoln, for property owned and located at 250 Locke Road, being variances to Article VI, Section 603.2, to remove an existing non-conforming buildings and construct new; to Article III, Section B(1)(2) & (7) to construct a dwelling 11 from the wetland and a septic system 40 from the wetland where 75 is required. Seconded by Shawn Crapo. All in favor. 2. Thomas and Tara Mack of 172 Main Street, Hopkinton, NH for property owned and located at 1064 Washington Road, Tax Map 6, Lot 25 request a Special Exception to Section 506 for a pre-existing apartment. Property is in the Single Residence District. Case # Thomas and Tara Mack, applicants, spoke to the Board. Mrs. Mack stated that they have prepared a table showing the requirements and what has been done. She explained that the plan shows the apartment is just under 864sq ft. There is a separate cooking area with a kitchen sink, a bathroom, bedroom with closet and living room. The unit will be limited to a maximum of three persons, not more than two will be greater than 18 years of age. She pointed out that the unit will be for her and her husband. The unit is not currently being rented; however, it has been used as an accessory apartment for over 18 years by the previous owner. She noted that two additional off street parking spaces shall be provided. (She submitted photographs showing the parking to the Board.) The accessory apartment shall be constructed to retain the appearance and 10

11 character of the structure and site of the family dwelling. (She submitted photos showing the home.) Referring to Section E under 506.3, she noted that they focused on the 15%. The map is 21,662sq.ft and 15% would be approximately 3,350sq. ft. The house is about 2,000sq. ft. and the apartment is about 900sq. ft. This is well under the 15%. She pointed out that they will be residing on the premises. She also pointed out that they have received an approval from NH DES for the adequacy of the on-site waste disposal system. They have also submitted a letter to Patricia Goodell from the Rye Water District stating that the property is billed as two units. The tax card lists two public water under utilities. Regarding section 506.4, She stated that they have submitted a site plan that shows where the septic is located. They have submitted a floor plan which has changed slightly. The Fire Chief reviewed the property and he recommended that one of the windows in the bedroom be changed. That is something that they plan to do. It is not on the original application because they did not know it was an issue. Chairman Jarvis asked about the square footage. Mrs. Mack stated that they estimated it at approximately 864sq. ft. Chairman Jarvis asked about the whole building square footage. Mrs. Mack explained that it is less than 3,000sq. ft. Chairman Jarvis opened to the public at 7:53 p.m. Terry Golter stated that she is the original listing agent for the property. She did extensive research to make sure this was a legal accessory apartment at that time. She submitted a letter from Sharon Abrams who was the owner at the time the Macks purchased the property. Ms. Abrams did verify that the apartment was rented by her for the last 15 years, as well as it being rented out 8 years prior to that. The apartment has been rented for 23 years since the time it was built. Member Crapo asked if it was recertified every two years. Every two years and when the property is sold an affidavit has to be filed with the building inspector certifying that the owner lives on the premises and the occupancy complies with section 506.3B. Ms. Golter stated that she can verify that the previous owner did live there. Hearing no further comments from the public, Chairman Jarvis closed the public hearing at 7:25 p.m. He stated that if the conditions for the Special Exception are met, the Board must grant it. If the conditions are not met it must be denied. Member Crapo stated that it does not technically have approval from the Fire Chief but he has specifically laid out what they need to do. It is laid out in a fashion that the building inspector could follow up to be sure that it is done. 11

12 Chairman Jarvis asked the following; Would the Special Exception be injurious or detrimental to the neighborhood? Charles Hoyt No Paul Goldman No Patricia Weathersby No Shawn Crapo No Ray Jarvis - No Would the Special Exception be in harmony with the general purpose and intent of the zoning ordinance and is it in accordance with the general specific rules contained therein? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes Motion by Patricia Weathersby to grant the Special Exception requested by Thomas and Tara Mack, for property owned and located at 1064 Washington Road, for an accessory apartment conditioned on satisfying the requirement of the Fire Department as stipulated in the letter dated June 30, Seconded by Paul Goldman. All in favor. 3. Lee-Ann M. Gonsalves Revocable Trust, Lee-Ann M. Gonsalves, Trustee of property owned and located at 31 Myrica Avenue, Tax Map 6, Lot 5.2, Lot 98 requests a Variance to Section 204.3A to construct a two-story garage and family room addition 24 in the rear setback where 30 is required. Property is in the General Residence and Coastal Overlay Districts. Case # Note: Chairman Jarvis noted that 24 in the rear setback, as stated on the agenda, means 24 from the rear property line where 30 is required. Attorney Bernie Pelech, representing the applicant, spoke to the Board. He submitted letters from the director abutters: Mary McCue, 25 Myrica Ave.; John & Anne Collins, 26 Myrica Ave.; Michael & Rose Marie Roche, Devon & Tom Farrelly; and Jonathan Murphy. Attorney Pelech continued that Mr. and Mrs. Gonsalves have done a great job of talking with the neighbors and sharing the plans. The application packet shows the existing conditions, the elevations and floor plans of the proposed addition and the floor plans. He continued that it is a 20,357sq. ft lot. It is actually four of the original Myrica-by-the-Sea lots combined. It is one of the largest lots in the area. The current house meets all of the setbacks. The house is built at an

13 angle and is not parallel to Myrica Avenue. A corner of the garage would intrude 5.6 into the rear yard setback because of the angle of the house. All of the use is residential in nature. The proposal is to construct a two-story addition, as shown on the plans with a two car garage. The proposed addition at the nearest point would have a rear yard setback of 24.4 due to the location of the building on the lot. Other than the rear yard setback, the only other request is for a variance to Article VI, Section which must be requested because the minimum lot size requirement is 44,000sq ft. This is a non-conforming lot of record so a variance is needed from 602.1, which is stated on the application. He went through the criteria for granting the variances. Chairman Jarvis stated that he does not see the variance for 603 listed on the notice. Member Crapo stated that he does not think it is that is needed. He thinks they need This is where a non-conforming structure is being enlarged. The applicant did list on the application; however, it did not make it to the notice. He does not think it is a fatal flaw that would cause someone to come and speak for or against it, who have otherwise spoke. Member Weathersby stated that this is a problem with the ordinance. In reading them, she does not think they need to request those. On the application itself it says that if all the requirements are not met they have to apply for 603 relief. Referring to 603.1, she pointed out that the applicant does not have any non-conforming parts of the building that are being expanded. She thinks it is something on the application that does not properly reflect what s in the zoning ordinance. Member Crapo stated that to Attorney Pelech s point the lot does not technically meet what the current size zoning is. Chairman Jarvis asked if there is a building on a non-conforming lot does that make it a nonconforming building? Member Weathersby replied no. Chairman Jarvis stated that it is therefore a conforming building. He asked if there is an ordinance that addresses that. Member Weathersby commented that he needs the setback relief but the variance application says that 603/602 also has to be applied for. She does not think they have to apply for that but she would be happy to give them one just to be safe. Member Crapo agreed. He pointed out that this was a lot of record prior to Even though it does not meet the current standard in that area it is considered complying. Chairman Jarvis opened to the public at 8:13 p.m. Hearing no comments or questions, he closed the public hearing. Member Weathersby stated that what is being requested is reasonable and well sited. The neighbors all seem to concur and she does not have a problem with the application. 13

14 Member Crapo stated that where this is situated the neighbors will hardly see it. Vice-Chair Goldman stated that he agrees it is reasonable. Member Hoyt commented that he has no issues. Speaking to Attorney Pelech, Member Weathersby asked if the shed is staying. Attorney Pelech replied that the shed is being removed from the property. The garage is going in that location. Chairman Jarvis called for a vote on the variances requested; 1. The variance is not contrary to the public interest? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 2. The Spirit of the Ordinance is observed? 3. Substantial justice is done? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 4. The values of surrounding properties are not diminished? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 14

15 5. Are there special conditions of the property that distinguish it from other properties in the area? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 6. There is no fair and substantial relationship between the general public purposes of the ordinance provision and the specific application of that provision to the property? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 7. The proposed use is a reasonable one? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes 8. Therefore, literal enforcement of the ordinance would result in unnecessary hardship? Charles Hoyt Yes Paul Goldman Yes Patricia Weathersby Yes Shawn Crapo Yes Motion by Shawn Crapo to grant the variance for property located at 31 Myrica Avenue, Tax Map 6, Lot 5.2, Lot 98, to Section 204.3A to construct a two-story garage and family room addition 24 from rear property line where 30 is required. Seconded Paul Goldman. All in favor. Chairman Jarvis called for a five minute recess at 8:17 p.m. Chairman Jarvis reconvened the meeting at 8:25 p.m. 15

16 4. Mary Dirago and Barry J. Tishbert for property owned by Blackberry Nominee Trust, Mary Ellen Dirago Trustee at 3 Love Lane, Tax Map 4, Lot 42-1 request an Administrative Appeal per, Section of the Zoning Ordinance to the Building Inspector s Letter dated May 12, 2014 which states the applicants are operating a construction company from the residence and are in violation of Section 203.1(C), home occupations. Property is in the Single Family District. Case # Note: The correct spelling of Barry J. Tishbert is Tisbert and the property is owned by Mary E. Dirago Trust. Member Shawn Crapo recused himself from the application because there is an internet reference to his business in the submitted documents. Chairman Jarvis seated Burt Dibble. At 8:27 p.m., Paul Goldman made a motion to recess the meeting for a consultation with legal counsel, which is not actually a meeting under the Right-to-Know Law. Seconded by Patricia Weathersby. All in favor. At 8:58 p.m., Paul Goldman made a motion to come out of recess. Seconded by Charles Hoyt. All in favor. Chairman Jarvis stated that the application is for an Administrative Appeal. He would like to establish the ground rules for the testimony. There are other applications and after 10 p.m., the Board will not start any new applications. He does not want to stray into irrelevant matters. The appeal is about the use being made of the property at 3 Love Lane and whether or not the Building Inspector s Notice of Violation, dated May 12, 2014, misapplies or misinterprets the zoning ordinance. Those are the only issues before the Board at this time. He continued that the Board members have reviewed Ms. Dirago s memorandum and the approximate 100 pages that have been submitted with it. The allegations of the memorandum and the exhibit are part of the record. It is obvious that there is acrimony between Ms. Dirago and Ms. Crotty and other neighbors over matters that are not relevant to the issues before the Board. He will declare testimony about those matters from any party as being out of order. Also, the Board notes for the record that Ms. Crotty is a member of the Rye Planning Board, that she is one of the neighbors who has complained about the use of the property at 3 Love Lane; and that the building inspector viewed the property at 3 Love Lane from the Crotty property. The Board notes for the record the allegation of improper influence and/or collusion between Ms. Crotty and the building inspector. The Board also takes note of the fact that the building inspector does not routinely, and only rarely, attends Planning Board meetings. He noted that these allegations and these facts are in the record. Ms. Dirago does not need to repeat what is in the record. He stated that they will not hear more from Ms. Dirago on this allegation unless she has something new to support it. He reiterated that he would like to stick to the relevant issues. What is the use being made of the property at 3 Love Lane? Should the building inspector s Notice of Violation be affirmed, reversed or modified? He opened to the person presenting the application for the Administrative Appeal. 16

17 Mary Dirago, applicant, thanked the Board for hearing this matter. She also thanked the abutters and neighbors for attending the meeting so they can clear up this issue. She noted that Barry Tisbert will be speaking as well. She continued that she is before the Board to discuss the relevance of Section 203.1(C) as it relates to the complaint that was brought against her issued by the Building Inspector Peter Rowell. It is regarding her home use and her home office at 3 Love Lane. She pointed out that she owns property at 13 Perkins Road, which is a residential year round home, and a second primary home at 3 Love Lane. She pointed out that she has been a resident since 2000 and has grown up in Rye. Barry Tisbert stated that they have been accused of running a business out of residence of 3 Love Lane. He pointed out that they are running a business from there. He owns a construction company and his office is held at 3 Love Lane, in his residence, in a 300sq. ft room. He pointed out that they have two homes in Rye and several other properties throughout the State of New Hampshire. Under the RSA s, it is legal to have a home office. He does not deny that he is running a business from this home. He stated that they are running several businesses from this property. One is an event business and one is a construction business. A lot of the construction equipment is his own personal equipment, which he is using to make improvements to the property. Anyone driving by can see that there have been several improvements made to the property. He stated that he has constructed a barn for his own personal use. It was built to the characteristics of Rye. He noted that all they are trying to do is work on their property and improve the property, which will improve the value of surrounding properties. All is asking is to use his own personal equipment. This has nothing to do with the company. He continued that he is not looking for any more arguments with the neighbors. This is a neighbors dispute and he would like to settle it. He does not believe that people should be able to tell people what they can do with their property. He reiterated that he is asking to store his equipment on his own property. The equipment is being used for his own personal use it just happens to have his company name on it. If he wants to store the equipment in his barn he should have the right. He pointed out that he rides around the Town and sees all kinds of tractors and farm equipment. He did not think there would be any problem with fixing up his yard, building a barn and storing the equipment in the barn which maintains the properties. The materials in question that are stockpiled is just a pile of loam that he has cleared out from the property. He pointed out that he can think of five properties in Town where the equipment has been on the property for two or three years. He believes the reason they are before the Board for the appeal is because it was misinterpreted by the Building Inspector. The inspector may have been told something different than what was actually happening. He pointed out that his pickup truck, with his company logo on it, is his personal vehicle that he uses every morning to go to work. That is what gets pulled out of that yard early in the morning. Other than that, there is not too much that gets pulled out of that yard before 7:30 or 8:00 a..m. He stated that he has done everything legally by the rules of the Town. He does not want to see the Town getting involved in ridiculous accusations. He pointed out that his business comes out of Derry, NH. He has a right to have an office. He has been before Planning Boards and has served on boards. He does not think this is fair what the Town is doing. 17

18 Ms. Dirago stated that she has over two million dollars in investments in Rye property alone. She is running out of time to get her work complete. There is so much work that is outstanding that needs to be completed. She has an outstanding septic design that has been approved by the State that needs to be put in. There is a water line that needs to be connected to the barn. She has followed the rules and regulations. There is a file full of permits. This is all about improving the property. She noted that she also has corrections to make from the original construction. She reiterated that there is so much outstanding work and so little time to get it done before winter. Last September, the permit was renewed and then there were two immediate deaths in the family. The winter then set in and delayed the completion of the work. Around the month of May, there was a flurry of activity on the property and this is what triggered this. Some of the equipment was being taken to Perkins Road during this time to get the work completed before the beach traffic set in. That is when a lot of this hysteria was generated. She hopes that they can back to the work that they have permits for, which needs to be completed. She would like to do so without getting notices of violation and feeling singled out by the Town that she lives in. Mr. Tisbert stated that this is the reason for the request for a variance. He would like to be able to put his equipment there so he can work on the property. He is asking for a variance to help speed things up. Chairman Jarvis opened to the public in support of the Administrative Appeal at 9:28 p.m. Hearing no comments, he opened in opposition to the Administrative Appeal. Building Inspector, Peter Rowell, requested to speak in defense of the Notice of Violation. He stated that he issued a permit for the barn and they built a beautiful barn. They also received complaints last fall from some of the abutters on the fact that some of the equipment was sitting around the barn. He wrote a letter to the owner of the property expressing his concern that there seemed to be a home business on the property. It looked like there was equipment being stored on the property not being used on the property on a construction basis. A generator was permitted shortly after that and that was installed. At that time, a letter was received stating that they were still working on the property. He let the equipment stay there. He continued that he received another written complaint this past spring. The complaint stated that the equipment is leaving in the morning. He wrote a Notice of Violation to the owner. He stated that if a person is not running a business, they can state where they are housing their equipment. A construction company usually has a place, other than the lot, to house their equipment. The owner did not come to him to try to explain the situation. He stated that he issued a Certificate of Occupancy for the barn. The barn was 99% complete. As far as, going forward with other improvements to the barn, if the owner wants to put a septic system in she will have to apply for a permit. His feeling is that they were on the cusp of having a home business on the property. The equipment is housed there. The equipment is loaded trailers, backhoes, bulldozers and ten-wheel dump trucks. It is beyond a farm tractor or garden tractor. The Board has a right to overrule him. He is saying that this is a home business and the equipment does not belong there. The Board can set a drop dead date of when the equipment needs to be removed. Member Weathersby asked what kind of equipment is on the property. 18

19 Mr. Rowell stated that there are a couple of dump trucks. Often times, there are a couple of trailers that are used for hauling heavy construction equipment. There is a backhoe, bulldozer and a farm tractor. The equipment is there on a regular basis. Member Hoyt asked how many complaints are on file. Mr. Rowell replied that there is one complaint. He would also like to clarify that he is not in collusion with any Planning Board Member or anyone else. None of the abutters have dragged him out there. The property can be seen from the road. Member Hoyt asked how many verbal complaints there have been. Mr. Rowell replied one or two. He does not typically log the verbal complaints. If he receives a verbal complaint he will drive by and if it is obvious he will act on it. Mr. Tisbert explained that the dump truck was parked behind the barn. The barn is twice as big as the dump truck. He would like to see the pictures that were taken and submitted with the complaint form. Ms. Dirago pointed out that they were under a permit constructing a post and beam barn. It was not a small feat. Attorney David Brown, representing Anne Crotty and John Zanos, stated that the Board should affirm this violation and deny the appeal. He has looked at the history and this goes beyond the scope of what is normal. It has been a long time. The work should be finished and the equipment should not be there. He thinks that Mr. Rowell is correct and the Board should confirm what he has done for enforcement. The business use should end and the commercial equipment should not be stored there. Attorney Larry Gormley, representing Tim and Janet Hansen, stated that he echoes what Attorney Brown has said. They also find substance in what the Building Inspector has found and believe the violation should be sustained. Jonathan Brown stated that his parent s estate covers Love Lane, the woods to the north, as wells as the meadows to the south. He continued that he purchased a fifth lot in the back about a year ago and he is able to walk along the back of the property. He pointed out that his father also purchased the Sponaugle lot which includes the house and 21 acres of woodland to the north. When the estate is closed, the property will pass to him. He stated that when he walked along the back property and got to the Dirago s, it was disturbing. He does not think anyone knows exactly where their property boundary is; between his property, his father s and the Dirago s. He pointed out that this can be figured out. The Dirago barn is very close to his property. He thinks the equipment has been used back there to intrude on his property. They have certainly violated setback requirements. There are large piles of dirt that may even be on his property or within the setback. 19

20 Chairman Jarvis stated that this issue is not before the Board. At this time, the Board is addressing application number 4. He asked for further comments in regards to the Administrative Appeal. David Bissonette, 7 Love Lane, stated that he and his wife signed the original complaint with the Hansens and Anne Crotty. He feels the Building Inspector has made the correct decision. He is against the Administrative Appeal. Speaking to Ms. Dirago, Chairman Jarvis stated that he has from the Public Domain from the State of New Hampshire file documents regarding SRF Excavation, LLC. The data regarding the company s status lists the principal office as 3 Love Lane. He pointed out that he has the Certificate of Formation for the company. Chairman Jarvis asked for further questions from the Board. Member Weathersby asked where the equipment is stored when it is not being used on the property. Mr. Tisbert stated that the equipment is used on another property in New Hampshire. Member Weathersby asked if he goes from project to project. Mr. Tisbert stated that he goes from project to project. If he is not on a project the equipment is stored in the Town of Danbury, NH. He noted that he has several pieces of property throughout the State and this is another one of his properties. This is a huge parcel of land and 90% of the time the equipment is stored there. He pointed out that once the Town issued him a Stop Work Order, he moved his equipment and materials to the next town over. He is storing his materials on the property of another excavation contractor. He will bring his equipment back and forth but it will be a hassle. Member Weathersby asked what the barn is used for. Mr. Tisbert stated that he stores his personal things in the barn to take care of his land and residential property. Member Weathersby clarified that some of it are things that are used for personal hobbies and some of it is used on properties. Mr. Tisbert confirmed that some things are used on his own properties and for his business. Ms. Dirago stated that it is a long commute to the Danbury property. There is traffic, weather and gas prices to deal with. She continued that they are working on their yard and of course the equipment would have to stay overnight. She does not have the money to hire landscape designers. They are doing the work with their bare hands and it takes time. 20

21 Member Hoyt asked if the main office is in Danbury. Mr. Tisbert explained that this is where he stores all his equipment. Member Hoyt asked how many employees the company has. Mr. Tisbert replied that there is just himself and Mary Ellen. Member Hoyt asked how many pieces of equipment is stored in Danbury. Mr. Tisbert stated that there is probably three pieces on the property right now. The rest is scattered throughout NH. Member Hoyt asked how many pieces are stored on Love Lane. Mr. Tisbert replied that he stored the dump truck and the bulldozer, which was removed in the springtime. Right now there is nothing on the property. He spoke about the equipment that is needed for the projects on the property. Vice-Chair Goldman asked if the corporate headquarters is at 3 Love Lane or in Danbury. Mr. Tisbert explained that the corporate headquarters is at 3 Love Lane according to the LLC, which is an office upstairs in the house. The equipment is stored in Danbury, NH. Vice-Chair Goldman asked if there is a projected time whereby the equipment that is used for the business that is being used for the home project is going to not be there. It seems like people have an issue with a lot of the equipment there. It is business equipment that may be being used to do home projects. The question is will that equipment remain there or will it be gone? Is the equipment actually for the business, not being stored in Danbury but at 3 Love Lane? Mr. Tisbert stated that he is using the equipment in order to move a dozer, which he uses in the wintertime to remove snow. He also needs a truck and trailer. Vice-Chair Goldman stated that he is trying to determine if it is a short term situation for the length of the project. Mr. Tisbert explained that it is short term. He noted that he does the work himself and it makes the project a little longer. Ms. Dirago stated that she is emotionally and physically distressed over this. She is terrified to make a move on her property because of what is going on and she wants it to end. Mr. Tisbert stated that enough has been said. It is the decision of the Board whether or not to override the Building Inspector s decision. 21