Town of Harrisville
Zoning Board of Adjustment
August 21, 2019
The Town of Harrisville Zoning Board of Adjustment held a public meeting and public hearing on Wednesday, August 21, 2019 at the Town Offices located at 705 Chesham Road.
Members present: Hal Grant, Chairman; Charles Sorenson, Vice Chairman; Jay Jacobs, Select Board Representative; Patrick Gagne; Jeffrey Trudelle; Rex Baker
Members absent: Pegg Monahan, Alternate; Andrew Maneval, Alternate
Members of the public: Karen Bemis, Mark Bemis, Donald Blajda, Jim Putnam, Tom Hanna, Fred Putnam, Judy Putnam, Nicholas Putnam, Keith Stilling, Clare Stilling, Thomas Carlisle
Mark and Karen Bemis, 129 Eastside Road (Map 71-Lot 1)
Donald Blajda of Koal, PLLC, architect for the applicant, explained to the board the property owners’ wishes to convert an existing structure into sleeping quarters for their growing family. The existing structure is a two-story barn/garage with a cellar and loft space, 18×20 feet, which the applicant proposes to remove and replace in the same location, on the same footprint, with a two-story structure. Based on the proposal and their reading of the existing zoning ordinances, the applicants requested a special exception under Article 5.3, which addresses alterations and expansions to non-conforming structures.
Mr. Blajda exhibited site plan drawings, noting the existing conditions and his belief that a special exception was more applicable given the structure’s location within the 50’ setback.
Mr. Blajda explained that, in 2007, the state approved a septic accommodating 4 bedrooms, thus meeting the capacity needs of the two proposed bedrooms as there are only 2 bedrooms in the main house. Also included in the approved septic design was a new well, which would need to be drilled to provide potable water.
The only new portion of the project is a proposed small, open deck that would wrap around the side toward the water and, via stairs, offer pedestrian access to grade. The only entrance to the structure would be from the deck stairs. The open deck would meet the 75’ setback requirement from the lake. Since, under Article 5.3.3, open decks are not considered expansions, the applicants noted they don’t believe a special exception is required for this aspect.
The architectural plans also noted no kitchen facilities, though a sink and small fridge would be installed. Mr. Blajda emphasized that this was not intended to be a dwelling unit or an Accessory Dwelling Unit under current ordinances, but only to serve as additional sleeping space. It was specifically designed to not include a cooking unit. When asked about bathrooms, Mr. Blajda noted there would be a ½ bath on the first floor, and a ¾ bath, with shower, sink and toilet, on the second floor. When asked if the structure would be used year-round, the Bemises noted that, by code, they are required to have provisions for heat to be occupiable, but that it would not be used year-round. Mr. Blajda subsequently added that he wanted to ensure the application meets all local requirements before submitting paperwork to the state.
When asked about the proposed height, the applicants confirmed that the new peak would be 5’ taller than the existing and that the roof pitch would be rotated to provide water views. There would be no exterior stairs from lower to upper stories, but the upper story would have a balcony.
Discussion turned to whether or not the application was for one or two special exceptions, as the hearing notice to abutters described two. Tom Hanna, attorney for the Putnams who abut the Bemis property, believed one special exception request was for the setback encroachment of the new deck and one for expansion of the structure. The applicant responded that the open deck was not considered an expansion and thus they sought just one special exception for being within the 15’ setback. Mr. Blajda added that the proposed structure would be 1 ½ feet further back from the road than the existing structure.
Mr. Hanna, Charles Sorenson, and the applicant then offered their interpretations of Article 5.3.3, with Mr. Hanna arguing that a 5’ height increase was an expansion in volume and Mr. Sorenson noting the question was whether or not the volume increase was in a direction away from the non-conformity, the non-conformity being its location in the right-of-way, not the current height.
Mr. Sorenson then opened the debate into whether or not the elements of the proposed structure constituted an ADU and, if so, that this would require a Conditional Use Permit from the Planning Board. The applicants reiterated their position that there is no proposed kitchen and that, under Harrisville’s regulations as well as those of the IRC (International Residential Code), the definition includes a functioning kitchen. Mr. Sorenson noted there are all levels of cooking facilities, given modern cooking devices. Mr. Hanna argued he doesn’t believe the IRC was relevant for this board. The group reviewed the current zoning definitions of apartments, dwelling units and ADUs and no definitive answer was agreed upon. The applicant once again reiterated that no type of cooking apparatus was included in the design or application so it would not be used as, or characterized as, a dwelling unit but only for extra sleeping space. Mr. Blajda wondered if the design could be further revised, or a condition placed on any approval, to meet the board’s and abutters’ satisfaction.
Mr. Sorenson stated his concern that if someone were to conclude this was a dwelling unit, the applicant would need to appear before the Planning Board. He questioned how much the ZBA could weigh in on the matter without first hearing from the PB. Jay Jacobs respectfully disagreed, urging fairness and consistency in how the town treats similar applications. Mr. Jacobs emphasized that Mr. Hanna, in a recent case, made the exact opposite argument before the Select Board for another client in an almost identical scenario as the Bemises.
Abutter Jim Putnam urged the board not to approve the application. He noted concerns about congestion along Eastside Road as well as encroachment in the right of way and what he believes is a dangerous location for an entrance. Mr. Sorenson disagreed with his reading of the ordinance provisions related to expansion or conversion of non-conforming structures. He added that the regulation grandfathers in these structures in their locations as they were allowed at the time they were built. The question, Mr. Sorenson stated, is whether or not the 5’ height expansion could be granted under the special exception criteria outlined in Article XX.
Mr Hanna suggested a variance was needed due to encroachment in a new area.
Mark Bemis responded to the Putnams’ concerns, stating that there would be no congestion or traffic issues or danger caused, as the building is previously existing in its location and that the entrance would move to the side rather than remain on the road where it is now. The garage doors now open directly onto the road. Mr. Bemis added that they’ve observed numerous other properties on the lake where much larger dwelling units have replaced smaller ones. They would have expanded their main house but believed it would cause more harm to the shoreline. The Bemises hope to work with neighbors.
When Jeff Trudelle asked if the structure could be moved further off the road closer to the main house using specially designed piers for sloped and shoreland areas, the applicants replied they wanted to stay on the existing footprint and that the sloped area between the main house and barn contains very poorly drained soil.
Tom Hanna reiterated that the Putnams’ fundamental position is the proposal is a dwelling under Article 4.1.6 and/or an ADU under the new ADU provision. He cited a previous interpretation by the ZBA of 4.1.6 when his client had to modify their proposal to meet requirements to not be a dwelling. The applicants responded that the interpretation was up to this board. Jay Jacobs heartily disagreed with Mr. Hanna and reiterated Mr. Hanna’s recent arguments on behalf of a different client about what constitutes a dwelling unit. Mr. Jacobs noted he sees no cooking facility being applied for.
At 8:03 pm, Chairman Hal Grant closed the public hearing for board discussion. Charlie Sorenson summarized that members should decide whether or not the proposal constitutes an ADU and how this should be decided. He again suggested hearing from the Planning Board. Jay Jacobs noted that the ZBA often is asked to take a position on issues that don’t fit exactly into existing zoning provisions, though he agreed the PB needs to define the qualifications for cooking space. Mr. Jacobs repeated the fairness issue and the need to apply regulations consistently.
The board returned to reviewing the special exception criteria for open decks and building conversions, as well as the descriptions of ADU and dwelling units as they exist in the current ordinances. Mr. Sorenson asked if it is an ADU, are different questions raised related to the special exception criteria. He recommended first referring the ADU question to the PB and that the Bemises hear back from the PB before this board considers the special exception analysis. Members generally agreed though Mr. Jacobs expressed continued frustration with fairness and believed the ZBA should decide. Mr. Sorenson noted if the PB decides it’s not an ADU, the applicants will return to this board. If it is determined to be an ADU, the applicants will stay with the PB for consideration of a Conditional Use Permit.
Subsequently, Rex Baker moved to have the Planning Board consider the matter of whether or not the Bemises proposal constitutes an Accessory Dwelling Unit and report back to the ZBA with a specific definition of an ADU. Jeff Trudelle seconded. The vote was 4-1 in favor with Jay Jacobs opposed for the reasons stated above and Mr. Baker, Mr. Sorenson, Mr. Gagne and Mr. Trudelle voting in the affirmative.
Charlie Sorenson noted the Bemis’s application for a special exception before the ZBA would continue to the next ZBA meeting on September 18. When the applicants noted that the current regulations are the current regulations and cannot be changed, Mr. Sorenson explained to the applicants that the ZBA seeks a current interpretation of current language and, given that the ADU provisions are new, there is no precedent.
Members then discussed logistics for scheduling a joint meeting of the PB and ZBA, including the required noticing by both boards. It was decided the chairs could schedule the timing, possibly scheduling a special meeting rather than waiting for the next regular PB meeting on September 11. The Bemises thanked the board for their time and consideration.
Keith and Clare Stilling – 24 Breck Lane
The Stillings requested guidance from the board as requested by the Building Inspector. The Stillings purchased their lot with an approved site plan, unanimously approved by this board in April 2018. They propose to construct a house with a smaller footprint than approved, 2,000 square feet as opposed to 3,000, and with increased setbacks from the lake than approved, 54.4’ versus 52’. The Stillings presented both the previously approved plans and their modified design plans. The septic and landscaping will remain as is and also as approved. The board reviewed that the non-conforming aspect was the distance to the water and that the Stillings’ plan is less non-conforming than previously approved. Following discussion, Charles Sorenson moved that the special exception previously granted should carry forward and that the applicant proceed to the Building Inspector for a building permit. All voted in favor.
The board moved to adjourn at 8:54 pm.