Board of Adjustment Meeting Minutes

Minutes of 6/20/24

June 20th, 2024

Town of Carroll Zoning
Meeting Minutes
June 20, 2024
6:30 PM

“These minutes of the Town of Carroll Zoning Board have been recorded by its secretary. Though believed to be accurate and correct, they are subject to additions, deletions, and corrections by the Zoning Board 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.”

Zoning Board Members Present: Karen Moran, Anita Greer, Bill Briggeman, John Greer

Public Present: Jim Howard (Builder), Mark Wingate, Troy Merner

Minutes Taken By: Steffanie Apostle

Item 1: The meeting was called to order by Karen Moran at 6:30pm

Item 2: Pledge of Allegiance

Item 3: Attendance Taken; Quorum Met
Karen Moran is Vice Chair filling in for Andy
Smith who was unavailable tonight
Anita Greer Zoning Board, Bill Briggeman Zoning Board, John Greer Selectboard Representative

Item 4: Approval of Meeting Minutes June 13, 2024
Motion to approve June 13, 2024 minutes made by Bill Briggeman and seconded by Anita Greer

Item 5: Mark & Heather Wingate – Continuance of Variance Approval for front setback for garage
Jim Howard handed in an updated application at the start of the meeting but it was decided to use the application that was on file with the application.
Karen Moran explained how when we left off last week, we were going to contact legal in regards to Section 804.47 and see if we could use it or not. Anita Greer did some research on some New Hampshire cases and John Greer contacted New Hampshire Municipal Association and spoke to them about the case and John Greer updated the Board on Stephen Buckley’s (Legal Services Council) response. His response is below
Based on the facts as you have presented them, and assuming your ZBA reaches the same conclusions you have made, your ZBA could grant an Equitable Waiver of Dimensional Requirements for the 3.5-foot side yard setback violation. I assume the owner of the garage did not cross the boundary line between his parcel and the abutters parcel.
Anita Greer summed up the case she had looked into for the board and clarified she was speaking as a Board member and not legal counsel. Anita Greer had discovered that the New Hampshire Supreme Court in 2019 had looked at this particular condition. Anita clarified that our ordinances are based directly on New Hampshire statute. The case was David F. Dietz vs. Town of Tuftonboro. This dealt with a very similar issue where someone had violated a setback requirement unknowingly, because of an error made by a municipal inspector. It was years later when a survey was done that it was discovered the 2nd story structure had been built on a setback area that was larger than they thought. One of the abutters brought a case wanting them to remove the structure and The New Hampshire Supreme Court looked at this issue and they determined applying for a Variance was not necessary they could use the Equitable Waiver provision to see whether or not the situation met the (4) requirements for that Statute and they upheld the ZBA’s award of an Equitable Waiver in this circumstance. This was an issue of a structure built in violation of a setback so it was a similar situation. Anita Greer said she reviewed it carefully before reaching out to the New Hampshire Municipal Association to confirm that we could indeed consider this issue under that Statute, and they confirmed.
The Board went through the criteria for a variance and reviewed the application and deliberated.

Question 1: Granting this variance would not be contrary to the public interest because
• It does not significantly impact the surrounding area or community along with preserving green space.
Bill Briggeman had 2 questions. Bill Briggeman agreed that it did not impact the surrounding area or community. It seemed to Bill Briggeman that somehow in all of these discussions we lost track of the original issue which had to do with the septic system
Jim Howard said they didn’t make any changes to the septic system. The distance from the house to the septic system stayed the same
Bill Briggeman asked if the location changed
Jim Howard said yes. What had happened was the frost wall was a bad dimension, so the main house was built exactly as is on original plan.
Bill Briggeman said Jim Howard had made a statement at his presentation the week prior that all of this came down to bathrooms that were not accounted for and the septic system therefore had to change or moved
Jim Howard said what he did was he amended the plan. You can’t change the height of a septic system. You could maybe go up but you can’t go down and you can’t change the location of it and you can move your septic tank around if you meet your minimums. When they come in for the final inspection you have an amended plan with no changes except for the location of the septic tank; that is the only thing that happened as far as the septic system concerned. We had to get fluid from one end of the house to the other and it was like 80’. The designer did not take that into consideration there was a bathroom furthest away so we need a certain amount of pitch.
The board was satisfied that they had met the requirements for question #1. Anita Greer made the motion and Bill Briggeman seconded it

Question 2: If the variance were granted the spirit of the ordinance would be observed.
• Granting the setback variance can be in the public interest when carefully considered in the context of the specific circumstances and the setback is not realized to the eye. Overall granting a setback variance can help achieve substantial justice by considering the broader context, individual circumstances, and equitable treatment of property owners while also promoting positive outcomes for the community as a whole.
Karen Moran wanted to add that the reason Jim Howard was here was because it was in error. Karen Moran said the spirit even with the original plans met the criteria because they intended to comply with the setbacks that happened to be based on erroneous measurements so Karen Moran would agree the spirit of the ordinance is observed.
Anita Greer said if you think about the spirit of the ordinance, it is to make sure there is enough room between the setback the road and the house. You’ve got room to plow you’ve got all the things you need that space for and there is not a hazard. Based on testimony Anita Greer’s conclusion was the spirit of the ordinance has been met because they do have extra space before the road and we are only talking about 3.5’.
The board was satisfied that they had met the requirements for question #2. Anita Greer made the motion and Bill Briggeman seconded it

Question 3: Granting the variance would do substantial justice because
• Variances can promote equity by ensuring property owners have equal opportunities to use their land within reasonable bounds
Anita Greer said if your balancing public interest with property rights in this case the individual’s specific situation outweighs whatever small public interest there may be requiring a correction.
Bill Briggeman said he agreed with Anita and added that we don’t need to worry about setting a precedent
Anita Greer made the motion and Bill Briggeman seconded it.

Question 4: If the variance were granted, the values of the surrounding properties would not be diminished because
• The proposed setback variance may still be in harmony with the character and the scale of the surrounding properties. The new structure can complement the existing neighborhood maintaining or even enhancing property values
Karen Moran said she drove by the house, Bill Briggeman drove by, and we heard from one of the neighbors last week and he was not for an opinion one way or another but he encouraged us to check with legal and we did get a couple more letters that we will read today.
Karen Moran used this as an opportunity to read the letters which included a letter from Brad Rousseau who was the neighbor from last week.
Letter from Brad Rousseau
Dear Members, I have owned property on Paquette Circle for over 20 years and I am an abutter to the above referenced property. After viewing the proposal and listening to the presentation at the Zoning Board of Adjustment meeting on June 13, 2024 regarding the variance for a garage, here are my thoughts:
1) This is seemingly an innocent error, that was made at the beginning of the process by designers. It was not determined that the error occurred until most recently, and after the property was constructed. Given the fact that this wasn’t an intended error, and that the property owners/builder could have easily moved the home back from the street, without a hardship at the time of construction, had they known about the error, I’m inclined to support a 3 ½ foot variance after the fact as an acceptable outcome. Additionally, the variance requested is small and the error is not egregious or underhanded in any way, nor does it change the character of the street or neighborhood.
2) In no way should support for this variance be construed as support in any other case that arises in the future in the town of Carroll. Additionally, support for this variance should not be construed as a precedent that variances may be obtained after the fact due to an error prior to building. I would like to request that this point 2) be specifically stated in the meeting minutes along with submission of this letter.
Respectfully, Brad Rousseau Trustee Bradley K. Rousseau Trust

Letter From Larry Dennison
To the Zoning Board,
I’m Larry Dennison and I own the property at 314 Paquette Drive, directly across from Mark and Heather Wingate’s home. I wouldn’t have noticed that the garage was too close to the street until it was pointed out. I am in favor of granting the variance as it is both small and the cost of remediation would be quite large. Mark and Heather are doing an excellent job of landscaping the front area and I’m sure the result will be appealing and improve nearby property values.
Thank you,
Larry Dennison

Karen Moran brought to attention that Ms. Farina submitted a letter the week prior and was against granting the variance.
Anita Greer said she thought the neighbors had expressed it well, it was a small intrusion on the setback and it looks fine as she drove by as well.
Anita made the motion to accept question 4 and Bill Briggeman seconded it

Question 5: 5Ai; No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision because
• Without a setback variance property owners may face significant financial burdens such as being unable to utilize their land as intended. This could lead to lost opportunities for investment causing financial strain and hardship
Karen Moran said as we discussed last week financial isn’t a consideration for the board. Karen asked if there was further discussion
5Aii; The proposed use is a reasonable one because
• Each property and situation are unique and strict adherence to setback regulations may not always be necessary. Granting this variance acknowledges the specific circumstances of the property owners and allows for a more tailored use of it
Anita Greer said in both of those provisions it’s important to go back to the beginning of section A where it says owing to special conditions of the property that distinguish it from other properties in the area, denial of the variance would result in unnecessary hardship. That is the part Anita Greer didn’t think we had
Karen Moran agreed because as it was discussed last week it’s the lot itself, physical lot; if it had some component or granite. It’s literally the land/lot itself which is what we’re struggling with last week and a little this week to review the application of an existing structure. Karen Moran said section A of 804.45 is not a consideration of financial. The proposed use is reasonable; Keep in mind this component of it relates to the lot itself
Bill Briggeman said that seems to be true from his view
Karen Moran disagrees. Owing to the special conditions of the property that distinguish it from other properties in the area, denial of the variance would result in unnecessary hardship. That would be they put the house there because there was a waterfall/granite. In that context it does not meet the criteria and Bill Briggeman agreed.
Anita Greer agreed and Bill Briggeman agreed
Karen Moran went on to question 5B; Explain how if the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable reasonable use of it
• Denying variances without considering these individual situations could unfairly burden these property owners and exacerbate their hardship. Without the ability to obtain a setback variance property owners may see a decrease in the value of their land due to limitations. This loss of value can have long term consequences for the owner’s financial well-being and overall quality of life.
Karen Moran reiterated as said last week and tonight that financial burden while understandable doesn’t meet the criteria of the variance requirements.
Anita Greer said the most important part of this one is the fact that is says owing to special conditions of the property that distinguish it from others; you couldn’t possibly use it any other way and that’s not the case. Anita Greer said she would be a no on this one
Bill Briggeman agreed
Karen Moran agreed
Karen Moran said given that we have looked at the application and reviewed the (5) components of the 804.4 for variance granting, they met (4) of the (5).
Karen Moran asked if there was a motion to reject the application
Anita Greer made a motion to deny the variance application
Bill Briggeman disagreed and said he thinks having met (4) out of the (5); the special conditions of the property strike him as, it’s appropriate but in this particular case it almost seems like it is not relevant so he would vote to grant the variance
Karen Moran voted to reject the application.
Karen Moran said in this instance with (2) rejections and (1) approval we go with the rejection as the applicant chose to move forward with a (3) member board as opposed to the (5) member board
The application was rejected

The Board then reviewed the requirements for an application of an Equitable Waiver. Karen Moran said we have a part (A) and (B) and part (A) has the requirements. When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance enacted pursuant to RSA 674.16 the zoning board of adjustment shall, upon application by and with the burden of proof on the property owner, grant an Equitable Waiver from the requirement, if and only if the Board makes all of the following findings.

Requirement 1: That the violation was not noticed or discovered by any owner, former owner, owner’s agent or representative, or municipal official, until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by connivance to a bona fide purchaser for value
Anita Greer said based on the evidence they presented last week that they all heard, that they met the burden of proof that the violation was not noticed or discovered until after the structure was built
Board was in agreement requirement #1 was met

Requirement 2: That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner’s agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owners’ agent, or by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority.
Anita Greer said once again based on the testimony and evidence that they presented that they met the burden of proof here that it was a genuine error, a good faith error in measurement in calculation.
Karen Moran agreed and said going back to last week we were shown all the maps and drawings and errors that were said to be missed by the State and the town and the building inspector that she agrees they meet the requirement.
Board was in agreement requirement #2 was met

Requirement 3: That the physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property
Anita Greer said once again she would say this is very similar with what we discussed for the variance which is that it doesn’t appear in any way to be a public or private nuisance or diminish the value of other properties
Board was in agreement requirement #3 was met

Requirement 4: That due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected
Anita Greer said she believes they have met the criteria, the burden of proof. The building has been constructed with 2 stories. Anita thinks the only way to correct it would be to tear it down. That seems to be much more of a burden when you’re balancing the factors here of the cost of correction so far outweighs the public benefit. If you had to correct it, it would be inequitable.
Board was in agreement requirement #4 was met

Anita Greer asked if she could discuss for just a minute the letter from the abutter was worried about a precedent. Anita Greer said in this particular case with the statute the Supreme Court made it very clear in the court case Dietz vs. Tuftonboro that the issue was what they call accumulative effect, which they were concerned about the accumulative effect of granting this equitable waiver which then if everybody was granted the waiver it would have accumulative effect that was against the public interest and the Supreme Court made it very clear at this case that when you are considering an equitable waiver as opposed to a variance you do not consider accumulative effect; that in fact you have to look at the specific violation only. That should address the issue about setting a precedence because instead you look at it individually.
Karen Moran asked if there was a motion on Section 804.7 granting an equitable waiver on dimensional requirements
Anita Greer made a motion and Bill Briggeman seconded it; All were in favor and motion passed
Karen Moran thanked Jim Howard & Mr. Wingate for coming 2 weeks in a row while we reached out to Legal and got clarification while giving a couple more neighbors time to allow them the opportunity to express their thoughts on the whole idea.

Item 6: New Business / Other
Karen Moran asked Steffanie Apostle when the next joint Planning Board & Zoning Board meeting
Steffanie Apostle said it was July 25, 2024 at 5:00pm to review the cell tower and balloon test that was conducted
Anita Greer asked if we provide a letter for the Equitable Waiver
Karen Moran said she was going to check with the Chairman Andy Smith
Meeting adjourned at 7:16pm