On May 16, 2017 the BOS was asked to review the decision of the Henniker ZBA in Case 2017-001; NOTICE OF DECISION ZBA 4-19-2017
In that decision Lot A-17 was granted a variance for road frontage from 105 feet to just 70.96 feet. A 30 foot reduction form the required 100 feet.
RSA 674:33 requires the following 5 criteria confirmed before granting a variance:
- (1) The variance will not be contrary to the public interest;
- (2) The spirit of the ordinance is observed;
- (3) Substantial justice is done;
- (4) The values of surrounding properties are not diminished;
- (5) Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship. (A) For purposes of this subparagraph, “unnecessary hardship” means that, owing to special conditions of the property that distinguish it from other properties in the area: (i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and (ii) The proposed use is a reasonable one. (B) If the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.
#5 (A) requires that the subject property has a special condition that distinguishes the property fro all other property in the area. This is the primary condition for Hardship to be established.
Hillside Drive’s applicants failed to establish that the property had any special conditions what so ever.
What was granted was not a variance but a total evisceration of the road frontage minimum requirement ordinance.
Now comes Select Board member Hooper who gives the following explanation of the application and decision:
She states four things that are contrary to the notice of decision linked above and rthe plat of subdivision recorded 39 years ago:
- No change in size of the parcels- INCORRECT: notice of decision calls for one property’s frontage to be reduced from 105 feet to 70.96 feet while the adjacent property gains 30 feet and goes from 120 feet to 155 feet of frontage.
- The parcels have been evenly divided- INCORRECT: see point #1
- To allow appropriate access- INCORRECT: as we have seen in a previous post this is an adverse possession-trespass problem. Access has noting to do with this application Hillside Drive trespass
- A lot of engineering has been done in Hillside Drive and sadly some of those property lines weren’t done as clean as they should have been-INCORRECT: property lines were platted and recorded in 1978 over 39 year years ago. Many mortgages have been issued on the subject properties and no legal authority has claimed that the lot lines were incorrect. HILLSIDE DRIVE RECORDED PLAN MAP Lot A-17 and A-18 page 2
The fact that the ZBA violated Henniker Zoning Chapter 133-69 went right by the entire BOS. (page 45 of 88)
There is no excuse for not knowing the facts (RSA and Town Ordinance) about issues brought to the BOS’ attention, especially when you Ms. Hooper choose to speak about it.
Once board members misstate facts…the board has lost all credibility and that is why this BOS is so dysfunctional.
The BOS is our last resort for the inappropriate actions taken by appointed committees.
WHAT CAN WE DO ABOUT a BOS that is dysfunctional and cannot assure us that the process is not being corrupted?
It is unconscionable that the BOS refused to even examine and deliberate the facts of the unlawful awarding of a variance on Hillside Drive.
OHB…keeping it real… making it easier for you to find the facts so you can draw your own conclusions…..