CHESTER – A rehearing to consider a special exception and three variances for a small triangular lot at the corner of Birch and Candia Roads was again continued at the July 16 Zoning Board of Adjustment (ZBA) meeting.
The issue has been ongoing since December, when owner of the property Roger C. Garrett sent representative engineer Eric Mitchell to ask for a special exception for septic system construction within the wetlands conservation district and variances from driveway setbacks, two acre lot size and because the lot could not contain a circle of 200 feet.
The special exception was denied (making null and void the variances), largely because of the wetness of the undersized property. However, a rehearing was granted because the decision was made on the same night that former chair Don Brown gave his surprise resignation and board members said it was possible they had not been entirely focused on the issues.
On July 16, Garrett’s attorney, John Cronin, made his case as to why the requests should be granted, and went so far as to say that a close reading of the town’s statutes indicates that no ZBA approval is required. Cronin argued that because the ordinances in question were enacted after the lot lines were drawn for Garrett’s property, they did not govern the lot.
Chair Billie Maloney read into the record two letters on the property, one from a town-hired soils scientist and the other from the conservation commission. Chair of the conservation commission Chuck Myette indicated concern about the wetness of the property and the potential for a house on site to negatively affect the adjacent wetlands, especially in regard to the septic system design.
The wetness of the property has been a sticking point for ZBA membership since the start, members noting that there is standing water on much of the property during much of the year. The soil scientist told the board the predominant issue facing the property was a septic design that did not meet local or state guidelines because of its proximity to wetlands. The letter added that if the septic could be redesigned to meet the law, there was no objection to building on the site.
Initially Mitchell said the septic encroached on the wetlands buffer by many fewer feet than indicated by the soil scientist in his letter, a red flag for the ZBA. Cronin argued that while it was undisputed there are wetlands on the property, there are also uplands that can support a small home.
Cronin focused part of his opening statement on how the constitution, on both the federal and state level, was a document that protected property owners and that the country was founded on various property rights. While the membership may not like the idea of a house on the lot, Cronin said, that’s “not really the test.”
Cronin said the ability for a property owner to enjoy their property as they see fit is a “sacred and protected right.” While Cronin said there was no evidence that building on the lot would negatively affect public health because of loss of wetlands, members of the ZBA noted that nobody was discussing a loss of wetlands but rather a negative impact to them, which in turn was a negative impact to the public.
Cronin indicated at one point during the discussion that he could argue his points at Superior Court.
Maloney focused on how the information from the soil scientist was at odds with the information presented by Mitchell.
“We have a wetlands scientist that found that Mr. Mitchell’s information is very incorrect,” said Maloney. It was then that Cronin revealed that a new septic system plan had recently been approved by the state.
Buckley noted that a 35-foot difference in wetland proximity was a significant change to the plan and as such, the rehearing was dealing with out-of-date information. The ZBA membership suggested they would have to review the new plan before deciding on the special exception. Maloney said Garrett could pull back his request until that point or the board could move forward but would likely deny the request.
Ultimately Cronin, after a discussion with Mitchell, decided to ask that the request be pulled back, which the ZBA allowed.