Zoning Board Again Denies House for Undersized, Wet Lot

CHESTER – After more than a year of deliberations, the Zoning Board of Adjustment (ZBA) turned down Roger C. Garrett’s petition to build on an undersized, wet lot at the intersection of Candia and Birch Roads – again.

The board had already turned down a special exception needed to build a proposed three bedroom home on the 1.25 acre lot last year, but granted a rehearing to a persistent Garrett, represented by Eric Mitchell of Eric C. Mitchell and Associates, Inc., and attorney John Cronin.

Up for consideration has been a special exception for a single family home and septic system that did not meet requirements of the wetlands conservation district, as well as four variances – for a septic system within the 40-foot front setback, the construction of a well within 100 feet of the septic, building on less than two acres, and the inability of the lot to accommodate a 200-foot-diameter circle.

At the meeting, ZBA chair Billie Maloney pointed out that a fifth variance was still needed, because the house was too close to the wetlands by 45 feet.

The reasons for the ZBA membership’s decision to turn down the special exception and variances have not changed much in the year. The property is too small, has too much wetland and requires too many variances to mesh with the spirit of the town’s rules, members largely agreed.

Garrett, through a letter read during the meeting, and Cronin, at earlier meetings, have spoken about the right of property owners to do as they see fit with their land with only narrow community control. They pointed to what they saw as the letter of the law and said that with their expert testimony, the special exception should be granted.

“The constitutional freedoms in this state and country rest on a foundation of private property rights. All property owners should have the right to use and enjoy their land as they see fit, subject to narrowly tailored zoning regulations,” argued Garrett.

And while Garret through his attorney argued throughout the process that consideration of a future owner of the property was not in the purview of the ZBA, the town has faced numerous problems in recent months from residents arguing that the town did not do enough to protect them from absentee developers.

Garrett said strict interpretation of the rules and expert opinion should win out over what he saw as personal opinion and conjecture of those who argued against his right to use his property as he wished.

Garrett also wrote in his letter about how his property had no reasonable or economically viable use without the exception.

“The economic value of this lot, and indeed any lot within Chester, is determined entirely by the ability to develop the land and to erect buildings on it,” said Garrett. “Nobody is going to consider purchasing a lot if it can’t be developed.”

The lot in question has been taxed as not buildable. It is located entirely within the town’s wetlands conservation district.

Throughout the meeting Tuesday, Jan. 21, Cronin hinted at possible legal action if the requests were denied, and ruffled some feathers when he questioned Maloney’s decision to read from prepared notes.

“Madam chair, if I may interrupt. Just a point of order. It appears to me that you’re reading from a typewritten piece of paper,” said Cronin, seeking to know when the notes were typed up.

Maloney was hesitant to say when.

“We’ve been working on this for a year. Don’t you have some notes? You must,” asked member Kevin Scott.

“I don’t, especially when there’s new evidence coming in,” said Cronin. “I just want to make the record clear. And you’ve answered my question. The note you’re reading from verbatim, for the reasons being denied, has been prepared sometime before tonight.”
Cronin also sought whether there was a recording of the meeting being taken.

The process has seen numerous plan changes and incorrect wetlands delineation. It has also seen expert testimony from Garrett that indicated that building on the lot would not cause issues with the wetlands or public health and safety. Nitrates that could leak from the septic system into the water were good, one of his experts told the board.

But no member of the ZBA that night thought all five of the criteria required to be met for granting a special exception were indeed met.

The board went through each criterion in turn, explaining specifically why they thought the project did or did not meet them.

In that process members spoke as to whether building a three-bedroom home was the only feasible economic use of the lot, whether its construction posed an issue for public health and safety, and whether granting the exception met the intent of the town’s zoning ordinances, among other issues.

Ultimately the board was unanimous in its denial of the exception.

The board also turned down all four variance requests, though the matter was largely academic following the special exception denial.

The issue that came up repeatedly as the board members gave their opinion on each variance, was that with so many variances needed, the project simply did not meet the spirit of the town’s zoning rules.

Scott noted that the spirit of the law did not anticipate so many variances and because of that, he could not put his name to it.

“We owe it to the future owner of this house to be very careful with our variances and look this over very, very closely,” said Scott when discussing the potential for the well to be salted, as it would sit too close to the roads.

“In my consideration, these overload the spirit of the ordinance,” said member Cass Buckley in arguing why all the variances should be considered together.

“It’s too bad we’re dealing with this today,” said member Jean Methot when denying the fourth variance in a row.

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