Zoning Board of Adjustments - Minutes (Final)

Meeting date: 
Wednesday, May 4, 2016

ZBA

Town of Epsom

Zoning Board of Adjustment

5/4/16

In Attendance: Glenn Horner, Chairman; George Carlson, Vice Chairman; John Dodge, Planning Board Representative; Mike Hoisington, Alternate; Gary Kitson, Alternate; Andrew Ramsdell, Darlene Phelps, Recording Secretary

Not In Attendance: Ricky Belanger; George Carlson

Also In Attendance: Peter MacCallum; Steve Kosusko; Melissa Proulx; Donna Findlay; Jim Findlay; Wendy Nelson; Krist Nelson; Alan Quimby, Alternate (arrived late) 

7:00 PM

Glenn called the meeting to order & introduced the members of the board. The minutes of 4/20/16 were reviewed.  John made a motion to approve the minutes as amended. Gary seconded the motion. All in favor.

The members voting on both cases tonight will be Mike, Andrew, John, Glenn & Gary.

Glenn explained the procedure for the meeting. Glenn advised that this public hearing was properly posted in two public places as well as published in the Concord Monitor.  All abutters were notified by the certified mail and all return receipts were received back with the exception of Jessica Ambrose, Curt & Sandra Diettrich, Marcell & John Farias, Everett & Sue Jabour, Stephen MacCallum, Roland & Irene Verville, Jodi Warnock and Robert Vistad.

Peter MacCallum has applied for a variance to reconfigure a portion of a prior subdivision containing properties owned by the applicant. None of these properties currently meet the area and frontage requirements contained in Article II, Section A.2 (i.e. minimum 2 acres and 200’ of public road frontage) and will not meet these requirements following reconfiguration by lot line adjustment.  In addition, one property, Tax Map U1, Lot 72, contains buildings which will not meet the side setback requirements of Article III.I.1.c (i.e. 15’ minimum) following reconfiguration.  The properties are located on the south side of Dover Road (US Rte. 4, 9, 202) within the Residential/Commercial Zoning District and are identified on Epsom Tax Map as U-1, Lot s 39, 40, 71, 72 and 73.

Steve Kosusko, land surveyor, explained that the purpose for this lot line adjustment is that there are several encroachments over property that is owned by Peter MacCallum, as well as they want to move the easement for the roadway on the plan so it reflects the actual roadway. This lot line adjustment will more accurately reflect where the roads & buildings actually are. This will correct several issues so that they do not become a problem for any successors of Peter’s. Nothing physically is going to be changed, just the plan will change.  The new plan will reflect some lots becoming larger, yet causing some buildings to be closer to lot lines.

Glenn asked if this is the first time the land has been reconfigured since the subdivision first was done in 1934. Steve said one lot line was adjusted in 1965.

Steve said no pins have been set as a result of this surveying, as they are aware that they would need to go before the Planning Board for Site Plan Review.

Glenn stated that we have heard several cases from property owners in that development and their deeds do not identify the private road as a right of way to their property. Steve responded that is true, however any property that was purchased showing access across that road has an assumed right to use that road.

Glenn asked if there are any members of the public that would like to speak in favor of the application. Peter MacCallum responded that he is happy to answer any questions anyone may have. His goal is to have a correct plan for his children.

Glenn asked if anyone would like to speak in opposition of this application. There are none.

Jay Hickey has no comment and feels this is a good thing to do.

Mike made a motion to close a public hearing. Andrew seconded the motion. All in favor.

The checklist was reviewed.

Question A. All members answered yes.

Question B. All members answered yes.

Question C. All members answered yes.

Question D. All members answered yes.

Question E. All members answered yes.

Question F. 1. All members answered yes.

Question F. 2. All members answered yes.

Mike made a motion to approve the variance request with no conditions.

Gary seconded the motion. All in favor.

7:30 PM – 7:40 PM Break

7:40 PM

We are ready for the next case and the Nelsons are not here. Darlene called and left a voice mail for Krist. It was decided to wait until 7:45 PM for the Nelsons to arrive.

Mike made a motion to elect Glenn as Chairman for the coming year. Andrew seconded the motion. All in favor.

Gary made a motion to elect George as Vice Chairman for the coming year. Mike seconded the motion. All in favor.

 7:50 PM

Case 2016-03 Wendy Nelson, on behalf of Sunrise View Leasing, LLC has applied for a Special Exception, as allowed under Article II, Section C [Table of Uses] for Retail and Service Use Number 19 (b), to construct and operate an Elderly Multi-Family Residence (three or more dwelling units). The applicant is also seeking a Variance to Article III, Section G [Residential Single and Multifamily Residence Requirements], Subsection 5 [Elderly Multifamily Apartment Residences with Three or More Units] to allow for:

  • Occupancy by persons who are at least 55 years vs. 62 years of age as specified in paragraphs 5.a [Definition] and 5.b [Purpose];
  • Residence ownership by a “for profit” corporation vs. a “non-profit” corporation pursuant to RSA 292 and exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code as specified in paragraph 5.a [Definition];
  • State maintained road frontage of 622 ft. vs. 1000 ft. as specified in paragraph 5.e [Frontage].

 

The property is located on Short Falls Road and River Road within the Residential/Agricultural Zoning District and is identified on Epsom Tax Map as U-14, Lot 30.  

Krist & Wendy Nelson arrived.

Glenn advised that this meeting notice was posted in two public places.

Glenn advised that the Board met with legal counsel to review the covenants.

Krist & Wendy provided an updated plan showing the area for the replacement septic systems.

Glenn said that at our last meeting the applicants did not address all elements of the Variance criteria and so he asked them to review the checklist & provide particular answers.

Glenn asked for more particular information about how this is not Contrary to Public Interest.  Wendy responded that they are providing a service to people in town. There is a waiting list for senior housing in the Epsom area. There is no moderately priced senior housing in this immediate area.

Glenn asked how this meets the Substantial Justice criteria.  Wendy said they are providing a tax base, and right now the property is in current use, which does not bring in much of a tax base.  At the same time, they will not be drawing from the school system and they will be encouraging people to stay in town by providing them a place to live.

Glenn asked if this will Diminish Surrounding Property Values. Krist said it will not diminish property values. This will be a clean, quiet community. Wendy said they spoke with a couple of real estate agents who advised that how the project is built/kept will determine how it affects property values – if it is neat & clean & quiet, the surrounding area will not be negatively affected, whereas if it is messy & loud, it likely would.

Glenn asked them to prove Substantial Justice.  Krist said this is a level piece of property that is suitable for elderly people, with easy access to the circle businesses. It is set off the road and will not be easily noticeable from the road.

It was discussed that the property could be developed into a different type of multi-family use – duplexes, etc. without a variance, including building a larger development including school aged children. Wendy said that even though they could build a general multi-family complex, their goal is to provide housing for senior people.  This will be a big benefit to older people who might otherwise be alone.  Krist said a typical multi-family would require the buildings to be farther apart, using more of the outer part of the property. This plan puts the buildings closer together and leaves more of a buffer around the development to the surrounding properties.

Glenn asked if there are any abutters in favor. There are none.

Glenn asked if there are any abutters opposed. Donna Findlay approached the board and asked about the Spirit of the Ordinance – she wonders why the senior housing age should be dropped to 55 in this case, when the average person is retiring later in life and 62 is the age of retirement.  She also questioned only one person being required to be 55 when the other person can be younger; and that only 80% needs to be over 55.

She asked why the ordinance says it needs to be non-profit. Glenn said it comes from an RSA.

She also questioned again where the 1000’ feet of frontage came from.

Donna questioned also the Special Exception and how the Zoning Board can determine that the integrity of the neighborhood will or will not be affected, when she thinks it will be affected.

One of Donna’s biggest concerns is who will be policing who lives there. Glenn stated that the conditions that are put upon the property will help to keep the residents in line.  It was also noted that Jay Hickey is the Zoning Compliance Officer and it is his job to be sure the conditions are being followed.

Glenn asked if anyone else wishes to provide comment. There are none.

Glenn reviewed 16 conditions that he has prepared (these conditions are listed below in the decision).

The Nelsons were in agreement with most of the conditions; the only one drawing concern was the one that requires all residents to be over 55, with no allowance for any resident to be under 55 years old. Glenn noted that they will be required to follow the exact requirements as Morgan Farms. The Nelsons are in agreement with this.

Gary made a motion to close the public hearing. Andrew seconded the motion. All in favor.

The checklist was reviewed for the Variance.

Question A. All members answered yes.

Question B. All members answered yes.

Question C. All members answered yes.

Question D. All members answered yes.

Question E. All members answered yes.

Question F. 1. All members answered yes.

Question F. 2. All members answered no.

The checklist was reviewed for the Special Exception.

Question 1. All members answered yes.

Question 2. All members answered yes.

Question 3. All members answered yes.

Question 4. All members answered yes.

Question 5. All members answered yes.

Question 6. All members answered yes.

Question 7. All members answered yes.

Question 8. All members answered yes.

Question 9. All members answered yes.

John made a motion to approve the Special Exception and Variance request with the following conditions:

  1. The number of dwellings to be constructed shall be limited to twelve (12) two-bedroom apartments and twelve (12) one bedroom apartments in six (6) buildings;
  2. The twenty four housing units contained in the facility are for older persons and shall be subjected to the provisions of NH RSA 354-A:15, the Rules of the NH Commission for Human Rights (Hum. 302) and Federal Housing for Older Persons Act of 1995 (24 CFR Part 100). The dwelling units are referred to as HOP unit(s) below;
  3. Use of the HOP units shall be restricted by written covenants as follows:
    1. The use and occupancy of each HOP unit shall be by individual(s) aged 55 years or older. Occupancy per HOP unit shall not exceed two persons;
    2. Prospective tenants shall provide positive documentation of the age and number of occupants intending to occupy the HOP unit to the facility owners prior to commencing residency in order to enable the owners to demonstrate that the occupancy restrictions are met;
    3. No guest or other invitee who is under 55 years of age or who would cause occupancy in the HOP unit to exceed two persons shall be permitted for a cumulative period of more than 45 days in any one year period without written permission of the owner. Under no circumstances shall the stay by the guest or invitee exceed 90 days;
    4. An individual who is certified to provide in-home care to an occupant of a HOP unit may occupy the HOP unit on an as needed basis in spite of the occupancy restrictions;
    5. The owners of the facility shall conduct annual surveys of the occupants in each HOP unit to ensure compliance with the occupancy restrictions. The result of these surveys shall be provided to the Town of Epsom upon request;
    6. In the event of a violation of any of the occupancy restrictions, including failure or refusal to provide documentation evidencing a HOP unit tenant’s compliance with the occupancy restrictions, the facility owner shall, after a 30 day written notice to the HOP tenant and to any occupant in violation of the occupancy restrictions, enforce such restrictions in any court of competent jurisdiction and may seek all equitable or legal remedies including, but not limited to, the requirement that the HOP unit be vacated or that the person(s) found in violation of the occupancy restrictions be evicted. All costs and expenses, including reasonable legal fees, shall be recoverable by the successful moving party against the HOP unit tenant;
    7. The covenants shall specify the rights of the Town of Epsom to enforce the conditions of the covenants in accordance with zoning regulations;
  4. To ensure the intent of these conditions are met, the format and language of the covenants shall be approved by the Town of Epsom through the Town Attorney and shall be registered in the Merrimack County Registry of Deeds. A copy of the registered declaration shall be provided to the Zoning Compliance Officer at time of building permit application;
  5. Rental lease agreements shall be established and executed with all tenants to ensure compliance with the covenants as outlined above. Copies of the executed lease agreements shall be provide to the Epsom Zoning Compliance Officer within five (5) days of a written request;
  6. A firewall shall be provided between each residential unit and each unit shall have its own fire sprinkler system. The design of the sprinkler system shall be approved by the Epsom Fire Department and shall be operational prior to the issuance of the Zoning Certificate of Occupancy. An annual inspection of the fire protection system shall be undertaken in conjunction with the Epsom Fire Department;
  7. Emergency access codes shall be provided through any driveway access gate for local emergency responders (i.e.: fire, police, and ambulance);
  8. A reserved subsurface disposal site shall be located on the property. The Epsom Planning Board shall approve the location of the reserved field based upon suitable engineering data provided by the applicant;
  9. Runoff within the site shall be treated using the best management practices and approved by the Epsom Planning Board;
  10. Temporary water pollution controls during construction shall be utilized that meets or exceeds the best management practices for site developments and shall be approved by Epsom Planning Board. All necessary State and Federal permits shall be obtained prior to construction commencing and copies of the permits provided to the Epsom Planning Board and Zoning Compliance Officer;
  11. The driveway and parking areas shall remain in private ownership and the owners shall be responsible for maintenance. Approval shall be obtained from NH Department of Transportation for a Driveway Permit;
  12. The exterior lighting within the site shall be designed for “downward” illumination and shall be designed to have minimal intrusion into the neighboring parcels unless the property owner consents in writing;
  13. The facility shall utilize the existing Town water supply;
  14. The existing tract of land upon which the facility is sited shall not be subdivided;
  15. Fencing and/or vegetation shall be used to screen adjacent lot U14-29 located at the Northeast corner of the property. Specifics of this screening shall be determined by the Planning Board;
  16. The applicant shall proceed to the Planning Board to obtain Non-Residential Site Plan Review within twelve months from the date of this “Record of Hearing Decision;”
  17. Variance and Special Exception approval for this project shall expire if after two years substantial development has not been commenced. Substantial development shall mean the completion of the access drive and construction of the first building foundation.

Gary seconded the motion. All in favor.

Glenn advised the Nelsons that once the covenants are prepared, they will need to be submitted to our town attorney for review. Glenn also noted that there is a 30 day appeal window for anyone who is not in favor of this decision.

8:57 PM  Gary made a motion to adjourn.  Mike seconded the motion.  All in favor.