Zoning Board Turns Down Variance for Lenox Parcel

The Zoning Board of Adjustment (ZBA) said no to a request for a variance to a project that has proved controversial in the past.

The ZBA met with Tim Winings of TJW Survey, representing the owners of 22 Lenox LLC, to discuss the request for a variance to allow a studio-sized condominium to be built on top of an existing non-conforming garage. Though Winings argued that the construction would not be contrary to the “spirit of the ordinance,” the board disagreed, with members saying the project would result in an expansion of the nonconforming use.

The property is Parcel ID 32040 and it is zoned Medium High Density Residential.

The original plan for a two-family dwelling on the parcel was discussed in the May 15, 2013 meeting and rejected by the Planning Board because members found it contrary to the history and character of the neighborhood, and members worried that the town would lose revenue if families with children moved into the duplex. The vote was 6-3 against the concept.

The developer appealed the decision in Rockingham Superior Court, and the court found in favor of the town.

Winings, representing the developer, returned to the Planning Board this past April 2 with a new proposal. The new design incorporates the existing single-family home and existing detached garage, with a connecting hallway between the house and garage, the studio condominium on top of the garage, and another corridor connecting the house, garage and studio to a two-family unit on the end. The meeting April 2 was a conceptual hearing, with no action taken.

The Zoning Board hearing was for a variance, and Winings read the criteria for a variance and how he thought the project met them.

• The project is not contrary to the public interest because it will improve the area aesthetically and increase tax revenue.

• The spirit of the ordinance is observed because the nonconforming use has been in existence a long time.

• “Substantial justice” would be done by granting the variance because there are similar structures in the area.

• Property values will not diminish because there will be no increase in the nonconforming use. Rather, Winings said, the project will “spruce up” the neighborhood.

• Literal enforcement of the ordinance would result in unnecessary hardship to the owner because many structures in the vicinity do not conform.

The garage is already a nonconforming use because it is only 8 feet from the property line, Winings said. But he argued that because the condo would be going “up” instead of “out,” it did not constitute an expansion of the nonconforming use. The footprint would not be altered, Winings said.

Winings cited case law in the situation of a garage and house connected by a breezeway and situated on an undersized lot. The owner wanted to enclose the breezeway, he said, and the town objected. “The court ruled that enclosing the breezeway was not an expansion,” Winings said.

But chairman Lynn Perkins said, “You are changing the intent of the building.”

Vice-Chair Allan Virr agreed, adding, “You can’t have two residences on one lot.”

“That’s why they are all connected,” Winings said.

Code Enforcement Officer Bob Mackey said his interpretation was, “If the structure is too close to the property line, going up is adding volume even if it doesn’t increase the footprint. That’s why you need a variance.”

Member Stephen Coppolo asked if neighbors were supportive, and Winings said he had talked to the abutters on both sides and neither had any objections.

Perkins called for input from abutters and there was no response.

In their deliberative session, members expressed doubt about the proposal. Virr, quoting the zoning ordinance, said, “No structure may be altered to increase its nonconforming use. A structure may be reduced in order to decrease its nonconforming use.”

Member Donald Burgess said, “In my opinion, adding an apartment is an expansion of a nonconforming use.”

Perkins asked to see a copy of the deed and noted that 22 Lenox LLC purchased the parcel in December 2011. “How long have we had this zoning ordinance?” he asked Mackey. Mackey said the 15-foot setback had been in place since the 1960s.

The motion was made in the affirmative, and the board voted 5-0 against it, with members saying they did think it would be an expansion of a nonconforming use and Perkins saying he “didn’t see the hardship” if the request were denied.