Though the chairman still had lingering doubts, the Zoning Board of Adjustment (ZBA) voted 4-1 to allow a variance to enable a property owner to create a new building lot with less than the required frontage.
The discussion at the March 19 ZBA meeting was a rehearing of a request for a variance earlier this year, which had been rejected by the Zoning Board.
The property in question is at 154 Hampstead Road, is Parcel ID 09081 and is zoned LMDR (low medium density residential). The owners, New Wave Diversified LLC, want to subdivide the property into two lots.
Atty. John Cronin represented the owners in the hearing and Neil McCarthy, a representative of Promised Land Surveying, was present.
Cronin read five criteria:
• Not contrary to the public interest. Cronin said, “It is only contrary to the public interest if it violates the zoning ordinance. The lot in question is large enough to support a single-family dwelling.”
• The spirit of the ordinance is observed. The property on the back lot is big enough for a house.
• Substantial justice will be done if the variance is granted. “The back lot has sufficient frontage to be developed as a public street, but that does not make sense,” Cronin said. “The proposed lots, even after subdivision, are larger than the neighboring lots.” The proposed shared driveway is consistent with others in the neighborhood, Cronin said.
• The value of surrounding properties will not be diminished. Cronin said that the neighboring properties are closer to one another, on smaller lots, and that the house on the proposed lot would not change the character of the neighborhood. “It will be a higher-end home,” he said. Also, Cronin said, the existing house on the lot will be rehabilitated and improved.
• Literal enforcement of the ordinance would result in a hardship. Cronin said that the volume and composition of the soils is enough to support two single-family homes and the use is permitted in this zone.
“If this variance is granted it would not create overcrowding,” Cronin said.
He said the owners have agreed to a no-cut buffer of trees in order to protect the privacy of abutters.
But abutters still had questions.
In the public comment portion of the meeting, John Cavallo of Sandown, who owns rental property abutting the project, said he had had problems with water when another new home was built. “It cost me $5,000 to fix it,” he said.
Cavallo said he owned and rented out a two-family home in a quiet area. He criticized the applicants’ motives and said, “It’s not right to give a variance to a person intending to make a profit off of it.”
Homeowner Gregory Dunton of 160 Hampstead Road said the discussion kept veering back to condominiums such as Drew Woods and he reminded the board, “Those are condos. These are houses. We chose to set our property back 250 feet to make sure we had privacy.”
The proposed driveway is too close for Dunton’s comfort, at 65 feet from his house, he said.
“The ordinance is there for a reason,” Dunton said.
Herbert Goodrich, a neighbor at 6 Penny Lane, had “real concerns” about a buffer. “We need to know that the green space is clearly there.” While the applicant has proposed a 30-foot hardwood buffer, “that’s not a lot,” Goodrich said.
Board member Steve Coppolo questioned whether New Wave’s request fit into the purpose of the board. “You said the land can’t be utilized to its ‘highest and best use,’” he reminded Cronin. “Is that what we’re here to do?”
Cronin responded that allowing the variance would get two properties on the tax rolls and make the land more productive.
Member Heather Evans grilled him on the owner’s intent. “Was it the intent of your client to subdivide when they bought the property?” she asked.
“They are in that business,” Cronin responded.
In the deliberative portion of the meeting, Vice-Chair Allan Virr said, “You can’t expect the abutters to be thrilled.”
He has a neighbor’s driveway 30 feet away from his house. “Of course we see the neighbors come home, and it’s not a big deal,” he observed.
In Virr’s view, there is no overcrowding in the neighborhood housing the two lots. “In some cases, they are 300 feet from the nearest house,” he said. “The spirit of the ordinance will be maintained.”
Chairman Lynn Perkins wasn’t so sure, noting, “I find myself in a situation where I’m wondering where the threshold begins and where it ends” for these types of cases.
“I can’t argue with ‘spirit of the ordinance,’” Perkins said. “It’s the ‘substantial justice’ I’m hung up on.”
The board added a condition where the Planning Board should ask for an increased buffer and then voted, with four in favor and Perkins voting no. “I cannot support it for ‘substantial justice’ being done,” he said.
