Minutes of September 26, 2013

Town of Sullivan
Zoning Board of Adjustment

Bruce Antis Variance Meeting  Minutes
September 26, 2013

In attendance Board Members:  Roger Sweet, stand-in Chair, Ron Hull, Bob Switzer, Steven Parker, Laura Lewandowski.

Public attendance-Laura Merrifield, Steve Hamilton and Ann Sweet.

Also in attendance for the Town of Sullivan, Lawyer Gary Kinyon  and for Bruce Antis,  Lawyer Silas Little.

The meeting is opened at seven o'clock by Chair person, Roger Sweet who is sitting in at this time for Rick Hotchkiss, who, as an abutter, had to recuse himself.

Mr. Sweet welcomed everyone, then introduced the members of the board and began the explanation of the process of the meeting. The application is divided into five different sections and he would like to have Silas Little speak to the board about each section and then let the board ask questions as needed.

Mr. Little began his presentation by passing out literature to the board members, one of which was a memorandum and evidence in support of the application for the variance. The second was an Agreement and Release statement which states that the town has no obligation to support emergency services to Mr. Antis and the third was the Rockwood Appraisal Service which shows there would be not any affect on the valuation of surrounding properties.

Mr. Little:  Mr. Antis originally applied for a variance with this first parcel of land at 55 acres. He has since then purchased a second lot that abuts to his original parcel of land and he now owns 95 acres. His intention is to homestead and be self-sufficient on his own property. He will not have any utilities run to the single-family dwelling he plans to build, however, he possibly might go with wind turbines in the future.

The property was originally the Nims family farm. This farm does have a cellar hole and a small private cemetery on it. The land has been heavily logged, and he now wants to farm and have a single-family residence there. He essentially wants to revert the property back to the way it was when it belonged to the Nims family.

The first hardship Mr. Antis has encountered is for him to be able to live on the property that he wants to farm. The second is he has a large area of land and the Town of Sullivan, in the past has granted permits to other residents. If the intention is to assure access for municipal services then the Town of Sullivan would more appropriately restrict the length of driveways in their attempt to ensure space and reduce the clutter of homes. Mr. Antis proposes to build behind the Alexander and the prior Kordt property so it would not be visible from the road.  So there would be no density or clutter seen from the road.

 The New Hampshire Supreme Court has ruled in favor of other cases such as this and Sullivan has granted other properties in the past, permission to build a residence that did not have 200 feet road frontage on a Class V road.

 Mr. Little commented that he found it hard to believe that a person with 95 acres of land can not have a residence with his allotments. He should not be denied the right to build because of frontage. The Rockwood appraisal proves that if there is one residential dwelling, then that would not diminish the evaluation of abutting properties.  The closest housing would be Mr. Alexander’s, and Mr. Antis has gained access through Alexander’s property to his own land.

Mr. Little stated that this ordinance is unreasonable when it denies a self-sufficient homestead to be built on a 95 acre lot because of frontage.

I apologize to the board for not allowing questions of each section.

Roger Sweet: The board should be able to ask questions to the application in order. Why don't we have the board ask questions now?  At this juncture, Roger Sweet read each item in the application for a variance and asked each board member to comment on each.

Steven Parker:  I have concerns without emergency access, if there is a fire that not only includes a structural fire but also the surrounding forest with such large surroundings and the fire spreading.

Mr. Little: There are no differences if there was a home there or not.  With no road frontage then the forest fire brush trucks come out and they fight the fire that way.

Mr. Parker: Does this property clearly delineate the lines of each of abutter or are their property lines overlapping?

Mr. Little: Both the Antis property and the Kordt property do not show any easements. The Eleanor Kordt property was originally the Nims farm and that has been surveyed. Stone walls for borders have been identified by Mr. Antis on his property and he plans to build close to the Kordt property.

Steven Parker: Sometimes lines were thought to be more definitive than they were.

Mr. Little: That sometimes happens.  There is no access from any direction so this property is more secure.

Bob Switzer: I have concerns about the roadway between the  Swayze property and the Alexanders' property residence. Does the property line run down the middle of the former Monument Road?  

Mr. Little:  That is correct and they would only be using the Alexander portion.

Bob Switzer:  And what happens to the right of way, does it go to Kordt's  western boundary?

Mr. Little:  Yes    

Board then breaks from questions and checks out the maps.

Mr. Little:  Mr. Antis with Mr. Alexander both agree they can cross his property. Once he gets on the Kordt property, he can put the driveway anywhere.

Bob Switzer:  So they will move the right of way over toward Mr. Alexanders’ home?

Mr. Little:  No, they will stay on the old Monument Road and I believe it is a 3 rod road.

There was a question on the width of Monument Road and the answer was that the road is a Two Rod road.  A rod equals 16.5 feet.

Mr. Switzer: Can you explain from the environmental point of view how the road will be modified.? I am trying to get a hold of the impact on the environment.

Mr. Antis: There is no impact, no more than when Mr. Swazey had the logging done on their property.

Bob Switzer: The application states that the property will have an agricultural use which does not necessarily mean it needs to have a residential use.  We have a number of people farming on various sections of land and they don't live there. I don't understand an agricultural use necessitating a residential use.

Mr. Little: If you are haying, yes you don't need to live on the land. Mr. Antis wants to raise vegetables and fruit trees so he needs to live there.

Mr. Switzer: A hardship relates to the  property and not to the individual. Can you explain a hardship as to whether or not a person wants to lives on that property?

Mr. Little:  Yes a hardship is for agricultural use and to maintain it.

Bob Switzer:   I don't see a hardship.

Laura Lewandowski: My concern is a fire could spread to other people's land.

Mr. Little: The town will have no obligation to provide emergency services. If Mr. Antis’s house burns down that is his personal choice.

Ms. Lewandowski: Someone else will eventually move in there and what will happen then?

Mr. Little: The new people will own it knowing they will not have services and it is up to them to make that choice.  What Mr. Antis is proposing will not hurt anybody.  He will need to get a state approved septic system and he will not be a danger to anybody.

Roger Sweet: I have a question if there are people up there who are visiting Mr. Antis and there is a fire, I can't imagine our fire department letting the fire go.  They are going to charge up there. How long is this road, is it going to be as much as 1200 feet?

Mr. Little: I'm not sure of the length of the driveway, It is likely it could be more than 1200 feet.

Roger Sweet: I believe it might be longer also and it could be a very dangerous situation as our emergency volunteers are going to charge up there in an emergency situation. So what is the answer to that access issue?

Mr. Little:  My answer is there was a family structure built in 2006 without road frontage on a class V road which is steep and about 1500 feet. And there was another...

Interruption by Roger Sweet: You are getting into those precedence issues. The town has made mistakes in the past, it does not mean for us to repeat those mistakes. That permit should not have been issued.

Mr. Little: Mr. Antis will sign a release to the town.

Roger Sweet: This holds no weight on emergency services. Did he understand what that ordinance was for? To prevent development in back lands?

Mr. Little: There is no developing here, just one house.

Roger Sweet: There will be future new owners, what happens then? More buildings and pressure to develop?

Mr. Little: First I'm amending to address these grievances and secondly, to release all emergency services to the town and at no time would Mr. Antis make that road a town road as stated on page 2 paragraph 3, of the Agreement and Release.

Roger Sweet then asked Mr. Kinyon if he had anything he would like to he would like to add.

Mr. Kinyon said that if the town does grant a permit without the 200 feet road frontage that we require, that it must be recorded with the registry of deeds.

Mr. Little added that on page 3 article 7 of the agreement and release it states that the premises will not be subdivided for so long as the premises has no road frontage on a class V road.

Roger Sweet: Does this also apply to the Kordt property.

Mr. Little: Article number 6 on page 3 states the right-of-way is to be used solely as access to a single-family residence to be construction on the owner's premises.

Roger Sweet: On the application of variance I see it says proposed to be devoted in part of agricultural. Could you explain?

Mr. Little: The rest of the land will be reverted back to the original state of timber property. Not all of the land will go to agricultural, but will be allowed to grow back to it’s original forest condition.

Bob Switzer: What will the extent of development be and how will it impact the land?

Mr. Little: There will be no large impact, the homestead will be as the original Nims family had it.

Bob Switzer: On the waiver of liability, if there is a guest on property and no services are to be provided and they did not know about the waiver, who is responsible?

Mr Little: The owner of the property is responsible. Presently the State of New Hampshire states that the town is not obliged to provide emergency services.

Bob Switzer: If Mr. Antis releases the town from emergency services will he still have to pay taxes for fire protection? Will Mr. Antis be able to get house insurance with the waiver of fire protection?

Mr. Little: I don't know what he will tell them.

Roger Sweet: You mentioned unnecessary interference, would do you mean by that?

Mr. Little: It seems unnecessary that you are limiting the road frontage and not the length of the driveway if you are concerned about over-development.

Bob Switzer: When I was on the planning Board we figured up all the town roads at 200 feet road frontage and we came up with the figure that there could be 278 house lots. Your seem to be saying this is the only way to build because there's not enough road frontage.

Mr. Little: Not all road frontage will be able to become house lots.

Mr. Sweet pointed out that the CPO requirement of 200 feet of frontage on Class V roads protects  back land space and the watershed.

Mr. Little: You're talking public use. You are depriving Mr. Antis with the excuse of public service.

Roger Sweet: You still need water protection.

Bob Switzer: I have to disagree with agricultural use and a home permit.

Roger Sweet: With this long a driveway but no frontage, a residence with agriculture use on it does not make sense.

Mr. Little: Then Mr. Antis will be forced to buy land he does not want.

Bob Switzer: What was his intention when he bought the land?  Was he planning on building  knowing it was on an unbuildable piece of property?

Mr. Little: I do not know, his dad originally purchased the land.

Roger Sweet: I'm taking it you have no driveway plans in the works yet

Mr. Little: No, not at this time.

Roger Sweet then read from Mr. Antis’ application articles 5 and  6 of the standards for variance and there was no discussion.

 Mr. Sweet then returned to item 2 on the application and asked what Mr. Little meant about “unnecessary  interference by land use control boards.”

Mr. Little: I see no difference between the 200 foot road frontage rule then someone with a long driveway. Mr. Antis will have livestock there and he will need to be with them.

Roger Sweet: There is a family who resides in this town yet owns a farm with livestock and the livestock are kept in Westmoreland. So it can and is being done.

Bob Switzer: You say that emergency services are not impacted by the driveway.

Mr. Little: Any services are not impacted by the driveway.

Bob Switzer: If the driveway is not up to code, it may not be able to sport weight of an emergency vehicle.

Mr. Little: There are comparable driveways of length in this town. Mr. Antis does not want any services of government on his premises.

Bob Switzer: Is there any court decision that states resident and agricultural farming has to be together?

Mr. Little: Not in the state of New Hampshire.

Roger Sweet: As far as market restrictions how does one house address that? There is already a cabin on the property.

Mr. Little: To my understanding it is only a seasonal cabin, not a permanent residence.

Roger Sweet asks Gary Kinyon if he has any comments?

Gary Kinyon: I am not speaking for or against this application. Mr. Little gave you literature as evidence, if you feel you need to consider this more, than you can continue the meeting.

There is interplay between state  regulations and the variance, under the town zoning ordinance, if you deny this variance then it ends the matter. However if you grant this variance Mr. Antis must still apply for a building permit with the selectmen. Whichever way that decision goes, Mr. Antis may then have to come back to the ZBA.

On a class V road, your zoning ordinance requires 200 feet road frontage, density is not really an issue here.

 The application is linking agricultural support for a building permit. Once the house goes up and there is no agricultural use then Mr. Antis can’t be made to tear down the house. With an agriculture use provision, you may want to add to place a conservation easement on the property.

On the prior Kordt property, you may allow only one building permit for both properties.

As far as prior long driveways are concerned,  a Class V driveway for a long driveway exemption does not make it the rule and you might waive a notice requirement to upgrade the road.

Mr. Little: Mr. Antis does know he has to go before the selectmen.  The fact is the Town has accepted right of ways in the past without releases and that is important.  The owner accepts all responsibility’s for transportation in cases of school buses or disabilities.

Roger Sweet: If there are no further questions from the board then does the public have any questions?

Steve Hamilton from the Planning Board:  I heard you speak of the possibility of wind turbines.  I have concerns over the noise issues and also Monument Road was discontinued.  The current driveway does not have an authorized curb cut.  How is Mr. Alexander able to give an easement on his property without a permit?

Mr. Little:  In 2011, New Hampshire mandated turbines for residential use.  Sullivan has no ordinance on this.  Residential turbines are about 150 feet high.  Mr Antis is not sure if will use wind turbines as a source of power.

Mr. Hamilton: And the curb cut on Mr. Alexander’s property?

Mr. Little: The easement on Mr. Alexander’s property, will be handled with the driveway permit.

Bob Switzer:  The right of way will go through the old Monument Road, which is used as a boarder line, Mr. Alexander only owns half of the road.  The planning board has a twenty foot set back for a driveway from an abutter’s line.

Mr. Little: One step at a time.

Laura Merrifield, Sullivan Selectperson: If Mr. Antis is not receiving town services will he be obliged to pay property taxes?  And is his agriculture purposes for commercial or personal use?

Mr. Little:  Mr. Antis is not proposing a CSA.  As far as I know he does not want the public on his property.  

Laura Merrifield:  He is asking for one residential building.  What about out buildings?

Mr. Little:  With agriculture use, he could possibly want to put up a barn or a shed.  If over 700 square feet, he would need a permit.

Laura Merrifield:  Is there anything we can do to prohibit further development.  It is like taking a second bite of the apple.

Mr. Little:  Mr. Antis told me this is all he wants to do.  If  he decides he wants to do more, then he will need to get an agreement release and that will take a town meeting to do so.

Question was asked about the easement from Mr. Alexander.  Can  another person be added to that easement?

Mr. Little:  Then they must get Mr. Antis’s permission to cross his property.

Ann Sweet, planning board member: Mr. Little talks about the norm then goes back to the 18th century. Well now is the norm and we only allow a 200 foot road frontage.  Does the Agreement go with the land?

Mr. Little:  Yes, the agreement goes with the land.

Ann Sweet: Could you please read the Agreement and Releases?  

Mr. Little proceeds to read the hand out of the Agreement and Release that he gave to the zoning board members.

Ann Sweet:  This could set a precedence for the town.  Granting of past permits does not set a precedence.   I believe this could set a precedence and we need to protect the back-land wildlife and water.  My opinion is to not pass anything that does not have the 200 foot road clearance on a class V road.

Roger Sweet then asked Mr. Little if it is possible to add an easement to the Monadnock Conservancy for Mr. Antis to leave two acres around his property line?  Would he be willing to do this if set by condition?

Mr. Little: I believe you can not set that condition.

Mr. Sweet:  If we set a condition that there will be not further development?

Mr. Little:  You should not propose such a regulation as that is against Mr. Antis’s Bill of Rights.

Mr. Sweet then asked if there were any more questions from either the board or the public?  No further questions were asked.

He then asked the board how they wish to proceed?

Ron Hull asked to continue the meeting to a further time due to the hour.

Bob Switzer made a motion to continue the public meeting until October the 17th, 2013 at 7PM, at the Sullivan Town Hall.

Roger Sweet seconded the motion.  

Motion passed unanimously.

Meeting was adjourned at 9:40 pm.

Respectfully submitted by:    Mary Hull Secretary