Town of Carroll, New Hampshire

• Town Services
• Town Meeting Minutes
• Planning Board/ZBA
• Applications & Forms
• Town Clerk/Tax Collector
• Map
• Home

Minutes of Town Board Meetings

• Planning Board
• Board of Adjustment
• Select Board
• Budget Committee
• Building Committee
• Energy Commission

06/10/2010 ZBA Minutes

June 30th, 2010

Carroll Board of Adjustment
Meeting Minutes June 10, 2010



“These minutes of The Town of Carroll Board of Adjustment have been recorded by its Secretary. Though believed to be accurate and correct they are subject to additions, deletions, and corrections by The Board of Adjustment at its next meeting when the Board votes its final approval of the minutes. They are being made available at this time to conform to the requirements of New Hampshire RSA 91-A:2”

Members of the Board present: Joan Karpf, Leslie Bergum, Paul Bussiere, Bill Dowling, Jim Early

Members of the Public present: Linda Dowling (filming), Frank Maturo, Brian and Theresa Mohr, Jane Ikasalo, Gardner Kellogg, Jim and Linda Drummond and Attorney Fay Melendy

Minutes taken by Rena Vecchio, Secretary

Meeting called to order at 7:00.

Pledge of Allegiance.

Chairwoman Karpf declared there was a quorum and asked for the minutes of May 13, 2010 to be reviewed. Leslie Bergum made a motion to: accept the minutes as written. Bill Dowling seconded and the motion passed. There were 4 ayes and 1 abstention, as Jim Early was not at that meeting.

Chairwoman Karpf announced that this was a Public Hearing for an Equitable Waiver of Dimensional Requirements for Brian and Theresa Mohr, 36 Twin View Drive, Map 205, Lot 27, Twin Mountain. She asked the board if they had any question or comments. There being none, the chair opened the Public Hearing at 7:02. Joan asked if the public had any comments, questions or information, to raise their hand and give their name.

Fay Melendy stood and introduced herself as an attorney from Conway, New Hampshire representing Jim and Linda Drummond abutters, Map 205, Lot 28. They also have with them their surveyor, Gardner Kellogg. She said she wanted to share information tonight that especially pertained to two of the criteria that you need to define tonight, in order to grant this Equitable Waiver. Those two criteria are:
1. Good faith mistake
2. Is the cost of the remedy available to the applicant inequitable in light of the nature of the encroachment

Attorney Melendy went on to say that it is her understanding that Mr. Mohr is a builder by trade, that he is familiar with the requirements, builder contracts and knowing the locations of the boundary lines. Mr. Mohr was granted a building permit for the garage/barn in November of ’06, with the understanding, based on the application, that it would be completed by October of ’07. The information on the permit itself states that it is valid for two years. The actual building occurred in 2008/2009 after the permit had expired. So the building was constructed without the benefit of a permit.

The building was also constructed with some fairly reckless disregard of the location of the Drummonds boundary lines. The reason she made that comment was because there was some concrete wash from the construction site that was dumped on the Drummond property, there were building materials stored on the Drummond property, there was a “Private Keep Out “sign placed on the Drummond property (suppose to be on the Mohr property) and there was a tree planted over the line.

Attorney Melendy introduces Gardner Kellogg, who did the survey work. He can also testify to the fact that there were stakes on the plan that are no longer on the boundary line. He knows that the stakes had been moved. There were stakes that go down the boundary line along the driveway that she understands Mr. Mohr admits to removing those survey stakes from that boundary.

There have been discussions between the Drummonds and the Mohr’s to remedy this situation. She said she thinks that in making their decision, they need to know both the existence of that offer and the bouncing ball in that offer. Attorney Melendy asks if she can approach the board to show the remedy that is in existence, on the map that Mr. Kellogg has brought. What her clients, the Drummonds, have offered to do to remedy the situation is to adjust the mutual boundary line that they share. There would be a jog put in the boundary line to accommodate the setbacks of the building and then jog back out so that there would be an exchange of land along the boundary line. The Drummonds are looking for compensation for the survey work that they had to do in order to bring this problem to the town’s attention. They are not looking for compensation for lawyer fees. There is a remedy available to the Mohr’s so the board does not have to grant the waiver to them and it therefore addresses criteria # 4, “Explain how the cost of the correction far outweighs any public benefit to be gained.”

Joan Karpf asked when the survey was done. Gardner Kellogg said it was done in September ’09. She then said that was after the building was built. Joan asked why Mr. Drummond wanted it surveyed and Mr. Kellogg said that Mr. Drummond had some concerns about the building setbacks, the tree and the sign on his property. Chairwoman Karpf asked what “the nuisance or diminish of value” would be (criteria #4) because of the setback. Attorney Melendy said they were not making the argument that there would be any. She also pointed out a slab that was wrongfully placed next to the garage/barn (for a generator) and that it could be moved elsewhere on the property so as not to add to the encroachment of the setbacks. She asked the board that if they were going to grant the waiver, that they would ask the Mohr’s to move the slab.

Paul Bussiere asked if this boundary line adjustment would be agreeable to both parties. Mrs. Mohr stated they were the first ones to propose it but that Jim wanted an enormous amount of money also. Jim Early asked if that meant that it was agreeable to both parties or not. At that point Attorney Melendy said that the last offer to the Mohr’s from the Drummonds was:
• To do the boundary line adjustment with the jogs
• Mohr’s would pay the cost relative to that
• Mohr’s would also pay $1500.00 towards the survey that had to be done in order to bring this forth to the board, but has been incurred because of the encroachment
• No attorney fees
Jim Drummond spoke on the subject and said he had talked to Brian about splitting the cost of the survey, approximately $1500.00. Then they could call it a deal and get things fixed. Mr. Drummond said that Brian called him the next morning and said no deal.

Jim Early wanted to know why Jim had to have the whole survey done instead of just the boundary line in question. Mr. Kellogg said that the PLBD wants a map of the property so that they have a map with the new boundary line also. Chairwoman Karpf asked what the total of the fees would be now. Gardner Kellogg said that the survey was 2500.00. To do the boundary line with the jogs it would be approximately another $1000.00. Then you would have to add the PLBD fees of approximately $40.00, plus the fee for the Registry of Deeds of $26.00 and $25.00 for the L-Chip. The total would be about $3600.00. Attorney Melendy said that fee is considerably lower than having to take down the building to bring the Mohr’s into compliance.

Brian Mohr said he wanted to address a few things:
• There had been a stake in the middle of the right of way, but he had to move it in order to use the driveway.
• He said he believes the foundation was put in soon after the permit was given. It was a long dragged out time. Another year went by and the framing got done. But the exact dates of when he started, he is not sure of. But he is pretty sure they started before the permit ran out.
• He said it was also mentioned that there are propane tanks within the 20’ setbacks. He said he didn’t know where to set the tanks so he had the field marshal from Franconia Gas come out. He uses 200 lb bottles right now and they go to the house and the garage/barn. The gentleman from Franconia Gas suggested they put the bottles in the corner so that they could go to both buildings. Mr. Mohr said he asked about the setbacks and Franconia Gas said the tanks could go on the line but they had to be 10’ from the building.
• He said he also said that Jim and he have mowed each others grass. When he used the right of way he sometimes went on the grassy area and the deal was he had to reloam and reseed it. That was fine with Mr. Drummond.
• He did store some stock on the Drummond property also he said. I told him if it was an issue he would move it because it was 2 or 3 feet over the line.
• Because Mr. Drummond has a non-conforming lot, he cannot sell me a piece of the property or give it to me. But we can exchange it. I told Mr. Drummond I would take 193’ from the back of his property and I would give him 193’ that abutts the front of his property and I would pay all the expenses. He didn’t get back to me right away, but when he did he said he wanted me to pay all his survey fees. He doesn’t understand why Jim would have to survey all the lines. His surveyor form Littleton, Boulanger Consulting only did that line in question and his bill was only $555.00.
• He said he planted a 25’ Balsam Fir that may be right on the line. Mr. Mohr said there are a hundred tress in the yard, but that one really seems to bother Jim. He will cut it down if he needs to.

Paul Bussiere said so you put in the foundation and it sat with no inspections for a year. Brian Mohr said the foundation went in and then it sat. There were no inspections. The only inspections that were on his permit was that state inspector could stop by any time. He said when he got his building permit he was told that when he was done building, the Fire Chief would stop buy to check on fire hazards. Brian said there was a lot of work that went into the foundation.

Brian said they also took down all the power lines on his property and those that went across the Drummond property. He said he bore the cost for that. He said he has done a lot of work with the piping for the electrical and water in that foundation. Paul Bussiere said with all the care and time that they put into this foundation, he does not know how Mr. Mohr could have this setback error. He then asked Mr. Mohr who did the survey for them. Brian told the board that there was no surveyor, that he had full intentions to go 20 feet. But by the time the trenches were dug and the concrete people came and put in the concrete, and a couple of steps there, we lost a foot or so.

Chairwoman Karpf asked what was the slab of concrete for? Brian said that slab was right outside the electrical panel and he had planned on putting a generator on it. He said he also put down a slab for the propane tanks. Theresa Mohr said this all stems back to the right of way. Jim Drummond has asked us many, many times to give up the right of way. But when we put in our driveway we can’t get the motor home up there. Sometimes in the winter, we can’t even get the van up there. So we still need the right of way for that. So when we wouldn’t sign off on the right of way, Jim Drummond told Brian that he would make his life miserable until he did. Linda Drummond spoke up and said Jimmy never said that. That never happened. Linda said that never was said by Jimmy.

There being no other questions from the public, Chairwoman Karpf closed the Public Hearing at 7:35. She said that the board can deliberate tonight or wait and deliberate next month. Paul Bussiere made a motion to: deliberate tonight. Bill Dowling seconded and the motion passed unanimously.

Joan Karpf said the meeting was open for the board to have a discussion. If anyone made a motion they would have to approve or deny the waiver. Then you would have to address each criteria and why they are met or not met. The chair asked if there were any letters from Stan and the secretary said yes there were 2 in their packet, one from November ’09 and January ’10. Joan asked the board if there was an extension on the building permit because there was a mention on whether the building permit had expired. Paul Bussiere and Bill Dowling said they never saw anything about an extension. Paul Bussiere said but then that is a fact that the building permit had expired. Joan said that was presented to us. The board asked the Mohr’s if they were looking for an extension of the building permit to finish the siding. They said yes, but they had to settle this issue first.

Leslie Bergum said she was confused. There is a proposal on the table. Jim Early said but it was not agreeable to both parties and that is why it is before the board.

Paul Bussiere made a motion to: not approve the Waiver because even though the error in the setbacks was not done maliciously, Mr. Mohr is a professional builder and the difference between 20’ and 18’ is big for a contractor. The Mohr’s had not planned properly.

The chair asked if Paul could go thru the criteria and give the reasons why he made that motion. Paul decided to withdraw his motion now and go over the criteria first.

A short discussion was held by the board. Jim Early said he finds this most concerning:
• The Mohr’s did not hire a surveyor. So should they be held to a different standard than those that had?
• He said it would be to expensive to take the building down. He would like to have the parties agree to a solution. That would be great. He cannot vote for the waiver tonight as he feels that the parties should agree to move the “boundaries.” Paul Bussiere agrees.

Bill Dowling said that whoever dug the hole or poured the cement must have been off.

Chairwoman Karpf said:
• She is not sure how either of the property values are diminished because of this.
• She also feels that if Mr. Drummond was so concerned, why did he wait till the building was almost done before confronting Mr. Mohr.
• She is trying to figure out what difference it makes if to anyone if Mr. Mohr is granted the waiver. Leslie Bergum states that it would bring the Mohr’s into compliance by having them accept the agreement.
• The Chair said An Equitable Waiver of Dimensional Requirements can be granted to the applicant provided they can meet the required standards:
a. The nonconformity was not discovered until after the structure was substantially completed or after a vacant lot in violation had been transferred to a bona fide purchaser;
b. The nonconformity was not an out come of ignorance of the law or bad faith but was instead caused by a legitimate mistake; if these conditions are satisfied, the board can move on to the additional findings to grant the waiver;
c. The nonconformity does not constitute a public or private nuisance nor diminish the value or interfere with future uses of other property in the area; and
d. The cost of correction would far outweigh any public benefit to be gained.
In lieu of the requirements in paragraphs (a) and (b), the violation has existed for 10 years or more with no enforcement action, including written notice, commence by the town.
Chairwoman Karpf made a motion to: accept the Equitable Waiver because;
• The foundation was there before the building was up and completed and Mr. Drummond should have addressed this then.
• This does not diminish property values because it does not obstruct any views. It is also quite a distance from the living area of the Drummond property and how would the exchange of land and any financial cost make a difference.
Bill Dowling seconded the motion. The motion passed with Joan Karpf, Jim Early and Bill Dowling voting aye. Paul Bussiere voted no and Leslie Bergum abstained.

Chairwoman Karpf announced a non-public session under RSA 91-A: III. “Terrorism aside, if you go into non-public session for a legitimate reason, there’s a good chance that you’ll satisfy one of the exceptions for keeping the minutes sealed. Moreover, since minutes of any meeting, including a non-public one, are required to include only names of members, persons appearing before the board and a brief description of the subject matter discussed and final decisions.”

Town of Carroll, New Hampshire ®2024