Members
Present:
Martha Thoits, Martha Mical, Kenneth Klinedinst, Joanne Hinnendael, Evie
Joss
Members
Absent:
None
Alternates
Present:
John Howe
Alternates
Absent:
None
Presiding:
Martha Thoits
Recording:
Sissy Brown
I.
Open Meeting at
II. Roll Call
III.
Approval of the Minutes of the October 13, 2004 Zoning Board of
Adjustment Meeting
The
minutes of the
IV.
Approval of the Minutes
of the December 8, 2004 Zoning Board of Adjustment Meeting
The
minutes of the
V. Case #01-05: Variance
Applicant:
Steven and Andrea Main,
Property
Owner: Steven and Carey Lamora
Property
Location: Map 17, Lots 3 & 5, 6
& 8,
Purposed
Use: Request a variance as provided
in Article XVII, Section B of the Warner Zoning Ordinance to be able to purchase
Lamora’s property on Route 103, use the house as rental property and use the
3-bay garage for mail-order sign business
Mr.
Main described his proposed business:
·
Move mail order sign business,
located on
·
Import pottery urns and sand blast
names/addresses onto them and sell them through mail order catalogs and on a
website: Plow and Hearth, Solutions
and Paragon catalogs
·
Small item, picked up by UPS and
shipped to customers throughout the country
·
Not a commercial sign company;
small
·
Dogsigns.com – website for
residential, small dog signs – also shipped to customers
·
Sign business in residence is
difficult for family – need additional space
·
House on property will remain a
residence, but not by owner of property. It
will be rental property.
·
Many know that the property is an
eyesore and isn’t well groomed. I
plan to do many upgrades to the property and make it look nice.
·
Lived in Warner for 16 years and
take a lot of pride in Warner
Ms.
Joss: It is my understanding that
you intend to purchase the entire property, rent the house and have the garage
be the business location. Is this
correct?
Mr.
Main: Yes.
Ms.
Mical: Are you still going to make
banners? Is all of the sign business
going down there?
Mr.
Main: Yes.
Ms.
Hinnendael: Where on the Use Table
would this business be?
Mr.
Howe was asked if he is an abutter. He
stated that he is, and Ms. Thoits said that he would have to wait until the
public hearing portion of the meeting to ask questions since he is an abutter
and must recuse himself from the Board’s discussion.
Ms.
Mical: It is a residential zone and
therefore needs to have a variance to have a business there.
The
Board discussed the category for the proposed business.
It was decided that it is under #13, Services.
Ms.
Hinnendael: I don’t know why it
doesn’t come under Wholesale, Transportation and Industrial because it is…
Ms.
Mical: Because it is retail:
It sells to you and me and everyone else.
Mr.
Klinedinst: Explain again what your
business is – you make signs; I know that.
Do you sell these products out of the house?
Do people come to your house and buy them?
Mr.
Main: Right now, I work out of a
detached barn.
Mr.
Klinedinst: Do they come there?
Mr.
Main: I have some people that come
there, but the majority of my business is mail order.
Through November and December, we did 4,000 of those (urns).
Mr.
Klinedinst: Are these retail,
wholesale, or both?
Mr.
Main: Both.
Ms.
Hinnendael: Do you manufacture these
there?
Mr.
Main: Yes – I do the add-on –
the images on the side.
Ms.
Mical: He doesn’t make the pots.
Mr.
Klinedinst: You’re essentially a
manufacture; I don’t want to put words in your mouth.
Mr.
Main: Yes, light manufacturing.
Mr.
Klinedinst: You’re not offering a
service; i.e....
Ms.
Thoits: But he doesn’t make the
parts, though, so essentially he is – he’s putting the images on the pots.
Mr.
Klinedinst: Under the heading of
professional services, I think of a doctor’s office or something like that.
Mr.
Main: If you needed a banner for
something that you wanted to promote, you’d come to see us to see if we could
make a banner. It would be kind of
like providing a service as well as a banner, but it is personalized for you.
Mr.
Klinedinst and Ms. Hinnendael said that they thing that #9 under Wholesale
covers the business better. Ms.
Thoits agreed.
Ms.
Hinnendael: I have a small problem
with the hardship issue. I know that
this is a good business for Warner and I know that he does a lot for the town,
but we have to separate the issues.
Ms.
Thoits asked Mr. Main to read his responses to the Variance conditions:
A.
No
diminution in surrounding properties will be suffered.
No.
I believe the change in the business from an auto repair service to the
requested sign business would improve the property in appearance and would also
reduce the daily traffic activity thus generally raising the value of these
properties.
B.
Granting
of the variance will not be contrary to the public interest.
This property
has been used as a business and residence for a number of years.
The house will remain a residence and landscape improvements will take
place. The business will generate
less traffic and I also plan to improve the appearance of the 3 bay garage.
It will continue to generate taxes for the town.
Madgetech owns a business with a variance for a similar business in the
same local R-2 zone.
C.
Denial of
the variance will result in unnecessary hardship to the owner seeking it.
This location
is the only one available for this sign business in Warner. I’m involved with
many youth activities in Warner and would like to remain in this community, and
I also think that if I had to move into that house it would create a hardship
because I would have to sell my house on
D.
By
granting the variance, substantial justice will be done.
A nice clean
business would remain in Warner. The
property would be improved for the benefit of the neighborhood and the town.
The current owners of the property will finally be able to sell the
property. I would be able to
continue to stay in the town and be active in youth sports.
E.
The use
must not be contrary to the spirit of the ordinance.
The property will remain as a residence,
as a rental. The business part will
still be run as a business. Also,
the location of this property in the R-2 zone is not typical.
The property looks like a business and is located next to the Warner town
sheds and the Transfer Station, and is on a state highway.
The sign business will be less obtrusive and have less traffic than the
original automobile shop.
Ms.
Hinnendael: Is there noise involved
in your business?
Mr.
Mail: No.
Ms.
Hinnendael: Because there are houses
by the business. Do variances stay
with the property?
Ms.
Mical: Special Exceptions and
variances stay with the property.
Ms.
Hinnendael: If they sold the
property and moved out of town, what could go in there?
Another sign business?
Ms.
Joss: We can put stipulation – if
we grant the variance, we can stipulate that the variance goes with him or that
he will have to come before the Board if he decides to sell it, or whatever
stipulation we want. It goes with
the property, but we can put stipulations on it.
Ms.
Thoits: If he sold the business, any
other type of business would have to come back.
It can’t be any business because it would be a change of use.
Ms.
Hinnendael: If Steve sold his
business in that building, Steve would have to tell the new owners what the
provisions are for that building and that is the only way they could use it.
Ms.
Thoits: The only other thing would
be if he sold the whole property. They
would still have to come in to get a Home Occupation Permit for a home business.
Ms.
Hinnendael: Does this cancel out the
car repair shop variance?
Ms.
Mical: There wasn’t a variance –
it was a home business.
Ms.
Hinnendael: If this is granted, does
this go before the Planning Board for a Site Plan Review?
Ms.
Mical: Yes.
Mr.
Klinedinst: Referring back to when
the applicant came for a consultation at the last meeting, it was the flavor of
the discussion that because a home business was granted to Madgetech…
Ms.
Mical: Madgetech was a variance.
A home business was granted to Lamora.
Mr.
Klinedinst: Who is the grey house?
Ms.
Mical: That’s Madgetech.
We granted it a variance.
Mr.
Klinedinst: That’s what I’m
referring to. In the minutes, Martha
Mical said that we granted the same thing for the same situation in the gray
house across from the Transfer Station. I
get the sense that because you grant one, you should grant another one.
That, I don’t…
Ms.
Mical: We don’t need to; that is
your decision to make.
Mr.
Klinedinst: Absolutely.
Ms.
Thoits: And I think you’re right
– we don’t have to grant one just because the other was granted because
they’re two different circumstances.
Mr.
Klinedinst: The other thing is the
financial hardship. I just
don’t…
Ms.
Mical: They did not present a
financial hardship tonight. This is
the hearing tonight, not the conceptual.
Mr.
Klinedinst: Not to put words in the
applicants’ mouth, but explain why this is the only property available
[referring to the answers read earlier]. I
guess you’re saying that it is the only property that you can move your
business into that will fit.
Mr.
Main: It is very had to find any
commercial property in Warner.
Mr.
Klinedinst: Again, not to put words
in your mouth, but based on the application you’re asking us to make this
commercial property just for you, right?
Mr.
Main: I don’t know if you consider
it a hardship, but having to move there…
Ms.
Thoits: That’s personal, that’s
not… Hardship has to apply to the
land you’re buying. That’s a
hardship to you, no doubt, because you have a beautiful new house and you
don’t want to move. But that
doesn’t apply to the land and that’s where your hardship needs to apply –
to Lamora’s.
Mr.
Main: Is the hardship that you have
to live there to run a business?
Ms.
Thoits: To run a home business.
If we grant you a variance to run a business, you don’t have to live
there because you’d have a variance. It
is a home business now – Mr. Lamora has to live there.
Do you understand the difference?
Mr.
Main: I thought that the definition
of a home business is that you’re allowed to have family members and one
full-time employee.
Ms.
Thoits: And you have to live there.
Ms.
Mical: That’s the wrong
definition. The people that work
there must live on the premises or be part time.
You can’t have any full time employees unless they live there.
Ms.
Hinnendael: Do you have any
employees?
Mr.
Main: I have one full time employee
right now.
Ms.
Thoits: That’s ok for a business.
But if you moved there and made this a home business, you can only have a
part time employee.
Ms.
Mical: But they have to live on the
property.
Mr.
Main: If you have a home business, I
always understood that you’re allowed to have one full time employee.
Ms.
Thoits: I thought so, too.
Ms.
Mical: When the definition was
written…
Mr.
Klinedinst: What about it isn’t
right?
Ms.
Mical: Well…
Ms.
Thoits: That’s really not the
issue here.
Mr.
Main: I think that the hardship in
having that property by definition as a home business is that I need more
expansion than a home business would allow, and that’s one full time employee.
I really need three full time employees.
So if I’m not able to move
there and I’m not able to get the variance, the hardship would be that I
wouldn’t be able to have the number of employees that I need for my business.
Ms.
Thoits: Now I think you’re hitting
on something.
Mr.
Klinedinst: There’s a lot of
information in the answers to the questions.
In D, you stated that the property would now be able to be sold.
I don’t think that this Board is in the business of helping property
owners to sell their property. I
don’t think that supports the application at all.
Ms.
Mical: Well, isn’t that question
that by granting the variance, substantial justice would be done?
And if they comment…
Mr.
Klinedinst: Where’s the injustice
if the property owner that owns it now can’t sell it?
Is the injustice up to the Board to correct?
Ms.
Mical: No.
I’m not saying that it is, but that is an appropriate comment.
Mr.
Klinedinst: That may be an
appropriate comment, but I’m saying that I don’t think that we’re in the
business of helping a property owner sell his property by granting a variance.
Ms.
Thoits: I think you’re right
there.
Ms.
Mical: But it’s not an
inappropriate comment to have on there.
Mr.
Klinedinst: I don’t think it
supports the application.
Ms.
Thoits: I don’t think it would matter one way or the other.
Mr.
Klinedinst: I don’t think that if
this property were improved that it would help the property.
It would still look like a business.
You mentioned that you were going to do some landscaping.
But being located next to the Transfer Station – I don’t see what the
actual impact is going to be if you actually take that property over.
I don’t know how you’d be less obtrusive.
I’ve only been in Warner for 10 years, but I don’t recall there being
a lot of traffic at Lamoras. I know
that he had his wreckers in there and signs and cars for sale there – that was
obtrusive. But I think that the
hardship part of it is not answered.
Ms.
Joss: I think that part of the
hardship, and I know that this pertains to the owner, but I think it would ease
the hardship of everyone in that neighborhood that has had to look at that
monstrosity. I can see it improved
and made an asset for the town because I know that there could be something
worse there. If vegetation and
landscaping were done, that would be an improvement to the property.
Ms.
Hinnendael: I’m sure the Planning
Board would want you to do something if it goes to them.
Do you plan to do something about the bay doors on that garage?
Mr.
Main: Yes.
I haven’t decided which to remove – there’s a 14-foot door and it
is all the way to the right side of the building, which would be good if a large
truck needed to come in. The land
drops down and comes back up again. It
would look nice with a retaining wall and fence and some flag poles.
Ms.
Hinnendael: It does wash out every
spring. You’re absolutely right,
and that’s probably something the Planning Board would address.
Are you planning on enlarging the building?
Mr.
Main: No.
Ms.
Hinnendael: We don’t need to do
anything about renting the house, do we?
Ms.
Mical: No.
He’s requesting a variance for a business out of that location.
Mr.
Klinedinst: Even though Lamoras –
is that considered a commercial or a home business?
Ms.
Thoits: That’s a home business.
Mr.
Klinedinst: But was he does is essentially a commercial operation.
Ms.
Mical: It’s a home business
because he did not employ anyone other than people that lived in his house.
Mr.
Klinedinst: The business as we know
it – not for what he applied for – is a commercial business.
Ms.
Mical: I guess you could call it
that. But it fit the standards for a
home occupation at the time.
Mr.
Klinedinst: I understand that.
I’m just thinking of what business took place there in the last 10
years.
Ms.
Mical: It is in the table that says
“home occupations not involving the on-lot, full time employee not living in
the home.” There’s a conflict of
the two definitions in the ordinance.
Hearing
no further questions, Ms. Thoits closed the Board meeting and opened the Public
Hearing.
Abutters:
Paul
Proulx: I have no doubt that these
people are well intended; however, the history of this piece of property goes
back 15 years. While we’re in the
discussion of home businesses, the definition of a home business is if it is in
the residence and not isolated from this. When
this was granted, there were a lot of errors at that time.
Also, the garage was built before the house was, which kind of goes
against a home business. There were
a lot of stipulations, like there was supposed to be a 25-foot buffer on that
piece of property. Consequently,
those stipulations were violated: the
trees were all cut down. I now refer
to it as the
Ms.
Thoits: Excuse me, Mr. Proulx, but
we do have a letter from Mr. Lamora giving him permission to do this.
So he has the right to come and ask for the variance.
Mr. Lamora has given us a letter allowing him that privilege.
Mr.
Proulx: Denial of the variance would
result in unnecessary hardship to the owner seeking it.
That tells me that’s the owner of the property.
And until such time as you buy that piece of property…
Ms.
Mical: No.
We have consistently heard requests when the applicant has a sales
agreement pending the granting or denial of a variance.
We have consistently heard those.
Mr.
Proulx: From people that are not
owners of the property?
Ms.
Mical: Yes.
Ms.
Thoits: When it is pending.
Mr.
Proulx: I hear what you’re talking
about. I think it’s stretching it,
but that’s my opinion. But all
five of these have to be met. Hardship
by law cannot be created. And the
fact that he does not own the property at this point – who is the hardship
for? Mr. Lamora if he can’t sell
his property? I take issue with what
was said before – variances do not go with the property.
If you change anything, you need a new variance.
Ms.
Mical: If you change something, but
not ownership.
Mr.
Proulx: Somebody cannot go in there right now and run a garage.
Ms.
Mical: No, they can’t, because it
was a home business.
Mr.
Proulx: That would be some other
legal term, I guess. My personal
opinion, and there are issues in this town right now – I believe with these
ordinances that businesses belong in commercial zones and residences belong in
residential zones. We have a great
growth problem going on right now, and if we start expanding this, there are
situations in town where commercial businesses have encroached onto residential
areas after they bought the piece of property.
It’s like pushing from one property to the next.
What’s to stop any business from buying the property next door and
getting a variance? The problem
exists with who’s enforcing this? Every
time you allow a variance, you weaken the ordinance – whether you put
stipulations on it or what you do. You
weaken the main concept of that ordinance.
Ms.
Thoits: I’m going to read this
letter from the Mr. Lamora that I should have read in the beginning:
Mr. and Mrs. S. Lamora
6 &
Warner, NH
To:
Town of
Re:
Property located at 6 &
To Whom It May Concern:
Please be advised that we hereby grant
permission to the town to discuss any aspect of our property located as
referenced above with Mr. and Mrs. Steven Main.
Thank you for your cooperation in this matter.
Sincerely,
Steven Main and Carrie Main
Ms.
Joss: I would say that when you say
that every time we grant a variance we weaken the ordinance – we would never
grant a variance in fear of weakening the ordinance.
What would be the purpose of having a Zoning Board?
Mr.
Proulx: I have been through this so
many times. If you go through and
read, in BOCA – which is the building code ordinance – it reads in there
that the zoning board has the opportunity to grant slight variances.
I don’t believe that it allows businesses…
Slight variances mean boundaries, setbacks, whatever.
I recall hearing from a lecturer on zoning ordinances at a seminar when
he said that variances should only be given very lightly because they weaken the
overall ordinance. The problem is
that they become difficult to enforce and just because you do it for this one,
you can do it for the next one and the next one and the next one.
The ordinances were originally established for this purpose – if you
can prove – hardships are one of the most difficult things to prove.
They should be the most difficult thing to prove, and that’s why you
need to meet all five of them at one time.
Ms.
Hinnendael: Any of the seminars that
I’ve gone to say that, too, but there have been so many Supreme Court cases
this year loosening that hardship requirement, and I keep trying to collect as
much information as I can on hardship because that is the most difficult.
And they tell us at all of the zoning training…
Mr.
Proulx: What most of these pertain
to, and this is the reason that they got loosened, this business wanted to do
something with their piece of property in the commercial zone, which is fine.
The town of
Ms.
Hinnendael: I’m concerned because
I can’t remember what those decisions were that were recently made.
The Supreme Court is all over the map.
Mr.
Klinedinst: First of all, I don’t
think that the letter from Mr. Lamora doesn’t make Mr. Main the property
owner.
Ms.
Mical: We aren’t saying that.
Mr.
Klinedinst: It doesn’t make it the
right thing to do, because it is the property owner that has to show the
hardship. I don’t think that it is
right for him to come in and be the surrogate property owner for Mr. Lamora.
Ms.
Mical: No.
The applicant should not have to commit to buying a piece of property if
he cannot use the property as he would like to.
We have the right, with Mr. Lamora’s permission, to grant the variance
so that this man can do or not do whatever he would like.
Mr.
Klinedinst: We may have Mr.
Lamora’s permission, but we don’t have the ordinance’s permission to do
that. That’s my point.
Mr.
Howe: When did Mr. Lamora get in
charge of the Zoning Board?
Mr.
Klinedinst: That’s what makes it
out of the spirit of the ordinance.
Ms.
Mical: I think it is in the spirit
of the ordinance because we have done this.
If you want to change the rules, that’s fine.
Mr.
Howe and Mr. Klinedinst: We’re not
changing the rules.
Ms.
Mical: We have done this in the
past, which you’re saying, “OK, we shouldn’t have done it.”
But you don’t wait until the guy shows up.
You should have stated this at the last meeting.
Mr.
Howe and Mr. Klinedinst: I think we
did.
Ms.
Joss: I’m confused.
Do you want Mr. Lamora to come here and ask for a variance?
Mr.
Klinedinst: No.
What I’m saying is that Mr. Lamora is the property owner.
Ms.
Mical: Currently.
Mr.
Klinedinst: The hardship portion of
the questions that have to be answered are the property owners’ hardship.
The applicant is not the property owner.
Ms.
Mical: So you’re saying that he
has to buy the property before he can find out if he can use it?
Mr.
Howe: No.
I think that what we should say is that this gentleman does not have the
hardship if he doesn’t buy the property. He
is creating a hardship by buying the property.
Ms.
Thoits: You’re not supposed to be
talking.
Mr.
Howe: Why?
We’re in a public thing now.
Ms.
Thoits: Then you need to go out and
be public.
Ms.
Hinnendael: Why don’t we listen to
the other abutters?
Ms.
Thoits: You can do that, John, and
speak as an abutter. But you’re
not supposed to be at the table.
Ms.
Howe: We are abutters, and I don’t
know anything about the law, but when we bought our house on
Mr.
Howe: Now may I say something?
Mr.
Thoits: Now you may talk.
Mr.
Howe: For heavens sake.
I think that the deeper issue here, for the Board, is not just a piece of
property. It is the question that we
have been facing all along about keeping commercial property in commercial zones
and keeping residential property as residential.
If we don’t stick to that, we’re going to Balkanize this town and it
will be a hodgepodge all over the place. Now,
this particular thing – Mr. Lamora created his own hardship, as Mr. Proulx has
eloquently stated it. He was given a
variance for a home business and he immediately turned it into a commercial
property. But it is not going to be
allowed to be a commercial property as long as I have breath to speak.
It is a residential area and it is going to remain a residential area and
this gentleman – this applicant – has shown up and said that he wants to
make it commercial. For my money,
that’s out, finished – game over. He
cannot make it a commercial property because we won’t allow it.
And any other commercial businesses that are in a residential zone – we
want them out, too. We want to
retain our residential area. We want
to keep it, and it is up to this Zoning Board, regardless of the mistakes this
Board has made in the past, two wrongs don’t make a right.
Finished.
Ms.
Thoits asked if any other abutters wished to speak.
Walter
Dawson: I’m representing Guy and
Susie Burlock who live right across at
Mr.
Howe: Excuse me, sir. We don’t
know any of those things you’re saying. In
the first place, when Lamora took over that property we didn’t know that he
was going to do what he did. When
Brayshaw took over his property, we didn’t know what he was going to do.
Ms.
Thoits: John, please address the
Board.
Mr.
Howe: Well, I’ll address
you. We did not know, the idea, you
know, that you say that these are nice people.
I’m sure they’re nice people. I’ve
been up to their business. I’ve
seen their nice business. But
they’re going to have to put their nice business somewhere else because
we’re in a residential area and we are not in a business area and this
gentleman has said that he wants a commercial area and we don’t know how far
he’s going to go and where he’s going to go – we didn’t know where
Lamora… As soon as he got the bit
in his mouth, he ran with it. The
same thing is true of Dick Brayshaw. Ladies
and gentlemen, you have no guarantees the minute you offer a variance because
you can’t put restrictions on it because nobody listens to them.
Ms.
Thoits asked if anyone else wished to speak.
Mike
Sailer: I agree with Mr. Dawson.
Hearing
no further discussion, Ms. Thoits closed the Public Hearing and reopened the
Board meeting.
Mr.
Klinedinst: What I’ve heard from
the non-abutters -- Mr. Dawson and Mr. Sailer – and some members of this
Board… I don’t know Mr. Main
personally. He seems like a nice
fellow and he runs a nice business. But
we don’t grant – we shouldn’t grant – variances or special exceptions
because they’re nice people or because they’re going to improve a corner of
a neighborhood, for that reason only. We
have stipulations that they have to meet to obtain approval of a variance and in
my opinion, he hasn’t met those. Particularly
the hardship part. And I still say
that, as I said earlier, even though his intentions are to get an approval so
that he can buy the property that’s not what the regulations are for.
The regulations are for property owners and he doesn’t own the
property. To support his application
from the public standpoint by saying that the Transfer Station is down there,
Brayshaw is down over here, and somebody else is over there doesn’t support
the application. And we have
commercial zones in the town; unfortunately in the past, these types of
variances have been approved and as the two abutters over here have stated –
there’s no way to enforce these things. And
the Board in the past has attempted to put stipulations from A to Z, either on
home businesses or other variances, and they just don’t work or there’s been
a change in personnel over the years. The
neighbors are the best enforcers, and it just doesn’t happen unless the
neighbors are actually watching what’s going on and checking all of the little
things that have to take place when a variance is issued.
But it’s not because this gentleman and his family don’t have good
intentions and they’re not good business people and are an asset to Warner.
Those are all goes things, but we can’t placate and issue variances or
special exceptions for that purpose.
Mr.
Dawson: Why is it that…
Ms.
Thoits: Actually, the Public Hearing
portion of the meeting is closed. We’re
back into the meeting.
Ms.
Hinnendael: Number one, I
don’t consider this commercial – I consider what is in our commercial zone
commercial. I consider this a
business like those on
Mr.
Klinedinst: Excuse me – I’m not
saying that they can’t represent the owner.
I’m saying that the ordinance is based on the land owner’s property,
alright? And …
Ms.
Hinnendael: I guess I want some kind
of clarification and if more time would assist in pulling something together to
clarify this…
Mr.
Klinedinst: Let’s look at it this
way. If it were Lamora in here
applying for a variance, would you say he had a hardship or not?
Ms.
Mical: If he was going for a side
business?
Mr.
Klinedinst: Yes.
Where is his hardship?
Ms.
Mical: His hardship is that the
location is the only one available for that size of sign business.
Ms.
Thoits: I have a hard time with
that, too. I’m really having a
hard time with this because I think that the Mains have a very good business and
a very good intent, and that if they were given the variance that the property
would look 100 times better or more because I think that they would do what
they’re intending to do because I think that they are very reputable people.
But I think that the problem with the Zoning Board is that we have to –
no matter what our personal opinions are – follow the law and we have to say
in our minds, “are they really answering all 5 of these questions?”
And like Joanne, I’m having a little problem with the hardship.
It’s really a difficult situation because sometimes you have to say
things that you don’t want to happen because you have to follow the law.
We’re really in a hard place here because I think that we’re all kind
of in agreement that this is a good business, but is it really answering all 5
of those questions.
Ms.
Mical: I think that is something
that we each have to decide for ourselves in each of our own minds – do these
answer the 5 questions?
Ms.
Thoits: And would it make any
difference if we did what Joanne suggested and wait another month to do it.
Is it going to change anything?
Ms.
Hinnendael: I don’t know.
If they had some advice about the hardship issue…
Ms.
Thoits: Do you mean as in legal
advice?
Ms.
Hinnendael: Maybe, I don’t know.
I just need someone to prove to me that there is a hardship, because I
know that it is a really good idea and I know that this would work really well
there. But I also have to consider
what’s happening on Route 103 because I know that we’re all affected by it.
I believe that a number of years ago that there was actually a proposed
zoning amendment, that was defeated, to extend the commercial zoning even
further down there. Even though I
don’t consider this commercial like a MacDonalds or a gas station or like
that, I think that it is more like a
Mr.
Klinedinst: Like Sundance.
Ms.
Thoits: Yes, like Sundance.
That’s what I was thinking, too.
Mr.
Main: This is a flyer that was
issued by the Central New Hampshire Planning Commission and it clarifies in
here, to me, that, “the Zoning Board may
authorize a variance from the terms of this Ordinance for a particular use,
parcel of land or to an existing building thereon from the terms of this chapter
where, owing to conditions especially affecting such parcel or such building,
but not affecting generally the district in which it is located, a literal
enforcement of the provisions of this Ordinance would result in unnecessary
hardship. 1.
The ZBA may authorize a variance from this chapter only where it confirms
in writing that each and every one of the following has been met:”
And
this is for a use variance, which is what we’re asking for –
i.
The zoning restriction as applied
to the applicant’s property interferes with the applicant’s reasonable use
of the property, considering the unique setting of the property in its
environment.
I
think that it meets that because this property is in a unique setting and the
zoning restrictions would interfere with a reasonable use of that property and
with that commercial building being on that land – if someone were to purchase
that property with a 3-bay garage it is unreasonable to think that one person,
or just a family member, would be allowed to run that property.
So I think right there that is a reasonable use of the property.
And I think that when a property that has a 3 bay garage on it, it is
reasonable to think that a business could be run out of that.
And also the unique setting of the property in its environment – the
setting is right on a state highway and it is right next to the Town sheds.
Looking at those factors, I think that you as a Board could legally in
your minds could, “Yes, that’s a hardship.”
Mr.
Klinedinst: If you were the property
owner now, if you owned that piece of property – whether you lived there or
not – where would the hardship be?
Mr.
Main: The hardship would be that by
restricting me from running a business out of that property – and it’s right
there – that it would be restricting a reasonable use of a building on that
property.
Ms.
Mical: Yes, and it is a unique
setting because it is on a state highway.
Ms.
Howe: Isn’t it on
Ms.
Mical: No, it is on East Sutton
Mr.
Howe: It is on
Ms.
Mical: No, the address is on East
Sutton, but the frontage is on Route 103.
Mr.
Howe: There is no entry on the state
highway.
Ms.
Mical: There is no entry, but the
frontage is on 103.
Mr.
Howe: There is supposed to be a
buffer there.
Ms.
Mical: It doesn’t matter –
it’s still the property.
Mr.
Klinedinst: What’s the address?
Ms.
Mical: The address is on East
Sutton because the driveway is on East Sutton.
But it is a corner lot.
Mr.
Main added to his application, as read by Ms. Thoits:
“C.
The zoning restriction as applied to the applicant’s property
interferes with the applicant’s reasonable use of the property considering the
unique setting of the property in its environment.”
Mr.
Klinedinst: Can I ask a question?
In a unique setting in what way – how is it unique?
Mr.
Main: Because it has a 30 x 60-foot
3 bay garage.
Mr.
Klinedinst: Ok, it has buildings on
the property that are unique.
Mr.
Main: And also I’d say that’s
what’s unique about the property.
Ms.
Mical: And the location, as he
stated earlier, being on Route 103 and…
Mr.
Klinedinst: It’s not on 103.
Ms.
Thoits and Ms. Mical: It is on 103.
You look at any map, and it is on 103.
And it’s next to the Town sheds and the Transfer Station.
Mr.
Klinedinst: Does that make the next
house behind it unique as well?
Ms.
Mical: Yes.
Let’s see, the next house behind it abuts the Town shed property.
Mr.
Klinedinst: So does that make that
property unique, too?
Ms.
Mical: I think that the fact that
you have a Town shed next to you makes the property unique.
The next house back has a much greater distance to the Town shed than
this property does, which makes it less unique than this property.
Mr.
Klinedinst: I don’t know how you
define a unique property – I don’t see a definition for unique property.
Mr.
Main: It says unique setting; “unique
setting of the property.”
Ms.
Joss: I think that by definition,
every lot doesn’t have a Town garage next to it, so I would say that qualifies
as unique.
Ms.
Hinnendael: Isn’t there a buffer
there, with the trees?
Ms.
Mical: Yes, there are trees, but the
lots touch each other.
Ms.
Hinnendael: But it is buffered, so
if you’re sitting in that house you don’t know.
Ms.
Mical: If you’re sitting in that
house, you do not know. But if
you’re at the garage, especially at night, I believe you do know that the
highway shed is there.
Ms.
Hinnendael: But if this was used as
a regular home – someone living there – they would not know that the Town
shed was there because there is a buffer there.
I think that we need to keep Town lots out of this because I think that
actually came in after that. I’m
getting better at this with the unique setting, but I really would like to table
this until…
Ms.
Mical: If you would like to do that,
make a motion.
Ms.
Hinnendael: Because I truly don’t
know if this would be a…
Ms.
Thoits: John, the Public Hearing is
closed.
Mr.
Howe: Everybody else is making
comment.
Ms.
Thoits: Only Mr. Main, because he is
the applicant.
Ms.
Hinnendael: I think that this would
be a good business for this lot, and it’s not that I’m not that I’m
listening to the public but I think that I just want more information on that
hardship.
Mr.
Main: Can you explain what you think
is wrong with the hardship?
Ms.
Hinnendael: I can’t.
I mean, I think that it’s getting there and I think that it is a unique
environment and that lot is a mess, and all the stuff that you want to do I
think is great. But I keep thinking
about everyone else’s feelings and what has happened to some of the other home
businesses in that area. I don’t
know what is going to happen to that area. Every
time something else goes in there, it just feels like things are spreading.
So I feel for the neighbors and I’m really torn about this.
So I have indecision. I’m
sorry.
Mr.
Klinedinst: I’m struggling with
what defines a unique property. I
mean, you take the people – I don’t know who they are – that live just
above what I call the Wentzel plaza, which is nothing but a bunch of rocks right
now. The next house up going
eastbound, right down the hill. Is
his property unique because he’s next to Wentzel?
Ms.
Mical: Actually, his property is in
the commercial zone, so it’s unique in and of itself.
Mr.
Klinedinst: But the point that I’m
driving at is that you can start to label everything unique depending on what
your benchmark is and we don’t have a definition of what unique is.
Mr.
Main: I think that its unique in the
fact that if you look at a piece of commercial property that is less than a mile
from this property on the same state highway, abutting a municipality –those
two things: on a state highway and
abutting the town property – that really makes that a unique piece of
property. Reasonable use of the
property because it has a garage on it – by not granting a variance interferes
with the reasonable use of this property.
Mr.
Klinedinst: I understand what
you’re saying. I struggle with the
definition that you give me for unique. I
don’t know what’s unique. There
are so many things that I could say are unique in this town and in any other
town.
Mr.
Main: I don’t see why a state
agency would write something that seems that vague to somebody.
Ms.
Hinnendael: I wasn’t at the last
meeting, so I just got my copy. But
the last paragraph in the last thing says, “The
Planning and Zoning Boards should consult with us…” – meaning the
Central New Hampshire Regional Planning Commission, which we have a contract
with –“and their town counsel to
discuss incorporating the provisions of the Boccia test into the town zoning
ordinance. Towns should be aware
that subsequent case law may further clarify or restrict the holding in the
Boccia case.”
Ms.
Hinnendael made a motion to postpone a
decision on the application until the Board talks either with CNHRPC or Town
Counsel and get some advice on this, and come back next month.
Ms. Joss seconded the motion. Hearing
no discussion on the motion, a vote was taken.
Evie Joss: Yes;
Martha Mical: No; Ken
Klinedinst: Yes; Joanne Hinnendael: Yes.
The motion passed by a majority vote.
Ms.
Main asked how these agencies were going to be asked, and Ms. Thoits said that
the Board would conduct CNHRPC and Town Counsel.
Ms. Thoits also suggested that the applicants consult with an attorney
for advice on the hardship issue. Ms.
Hinnendael asked if the Board would continue the Public Hearing at the next
meeting to allow input on the findings of the Board.
Ms. Mical said that it would be posted as a continuation on the Agenda.
Ms.
Hinnendael made a motion to continue the
Public Hearing until the next meeting. Mr.
Klinedinst seconded the motion.
The motion passed by a majority vote.
Mr.
Howe: The point that I was trying to
make about unique is that everyone on
Ms.
Thoits: OK.
We’re done with that case.
VI. Consultation: Paul Proulx
Zoning
Regulations
Ms.
Mical made a motion that the Town
Attorney has advised the Board that it not hear the case because it is not in
our jurisdiction.
Ms.
Mical said that she had discussed the matter on the phone with Mr. Gartrell, and
he said that it does not apply because the matter of an appeal by Mr. Proulx
doesn’t involve a zoning ordinance and therefore the ZBA has no jurisdiction.
Ms.
Thoits read RSA 674:33: The
Zoning Board of Adjustment shall have the power to hear and decide appeals if it
is alleged that there was an error in any order, requirement, decision or
determination made by the administrative official in enforcement of zoning
ordinance.
Ms.
Thoits and Ms. Mical: This is not a
zoning ordinance. It is a site plan.
Mr.
Proulx: If you’ll read RSA 674:33,
it says, at the bottom if you keep going…
Ms.
Mical: That’s what she just read.
I have a motion on the floor. Is
there a second?
Mr.
Klinedinst: Can we have discussion?
Ms.
Mical: You have to second the motion
first.
Ms.
Thoits: We have to have second
before we can discuss it.
Mr.
Proulx: The Zoning Board of
Adjustment, under the powers of the ZBA – is that what you were just reading?
Ms.
Thoits: Yes.
Mr.
Proulx: The enforcement -- it’s
the enforcement of any zoning ordinance adopted pursuant to RSA 674:16.
If you go down to #2: In
exercising this power under paragraph one, the Zoning Board of Adjustment may
reverse, affirm, wholly or in part, may modify, alter a requirement or decision
or determinations, appeal from and make such order or decision as ought to be
made to that end and shall have the power of the administrative officials from
whom the appeal is taken. In other
words, they can assume the power of the enforcement officer.
Ms.
Mical: I’m relaying what the Town
Counsel has advised this Board.
Mr.
Proulx: I’m taking issue with it.
Ms.
Mical: That’s fine, but I’ve
made the motion to not hear this case because Town Counsel has advised us that
it is not in our jurisdiction.
Mr.
Howe: Excuse me – did Town Counsel
have all of this information in front of him?
Ms.
Mical: He had Mr. Proulx’s…
Mr.
Howe: Did he have what Mr. Proulx
just quoted?
Ms.
Mical: I had the RSA in front of me
and I read it to him.
Mr.
Howe: And you read him this?
Ms.
Mical: I read him RSA 676:5.
Mr.
Proulx: Which refers to 676:33.
Ms.
Mical: Yes.
Mr.
Proulx: As who has what power.
Ms.
Mical: And he was aware of
that one.
Mr.
Proulx: The way I read it, they have
the power…
Ms.
Mical: I’m just telling you what
legal counsel has told us.
Mr.
Klinedinst: I understand what
you’re telling us. My opinion is
that we not hear this case until we have it in writing from Town Counsel.
We’re going to get into a court situation here…
Mr.
Howe: We certainly are.
Ms.
Mical: Town Counsel’s advice is
that Mr. Proulx should be taking his original issue…
Mr.
Proulx: No it’s not.
This is a brand new issue.
Ms.
Mical: Well, he should be taking the
appeal to the Superior Court.
Ms.
Hinnendael: Can you get that in
writing from Don?
Ms.
Mical: I will try.
Mr.
Proulx: this is what the Board is
for – it is a Board of Appeal. This
is not a Board for Zoning Adjustments right now; this comes under a different
heading.
Secretary:
Don had told us in the fall, I believe, and he also told us again that
it’s a Board of Appeal for zoning ordinance issues, not…
The Board has no jurisdiction over anything that the Selectmen decide.
Ms.
Mical: Unless it is a direct zoning
ordinance.
Secretary:
But this is not a zoning ordinance issue – it is a site plan.
Mr.
Proulx: I beg your pardon, but it
is. It is a zoning ordinance issue.
There is a zoning issue that implicates…
Mr.
Klinedinst: Get it in writing.
Ms.
Mical: I believe he’s given it to
us in writing once before, but I’ll see if I can get it again.
Mr.
Klinedinst: Get it in writing from
the Town Counsel and then we have documentation and it then becomes part of the
record.
Mr.
Howe: My concern is that we’re
getting second-hand information and I think we should have it first-hand and in
writing.
Mr.
Klinedinst: I agree with that.
Mr.
Proulx: I have a very bad opinion of
how you ask questions to lawyers, because you can get any answer you want
depending on the question you ask.
Ms.
Mical: Well, I simply read your
words.
Ms.
Hinnendael: Was this whole thing
faxed to Don?
Ms.
Mical: No, I read him…
Ms.
Hinnendael: Would you fax this to
Don and ask him if he still agrees with that, and then we can take it up again
at the next meeting. The problem is
that if Mr. Proulx needs to file something with Superior Court, I don’t know
what his time table is. Will our
continuance still allow him to file something with Superior Court?
Ms.
Mical: When was your letter…?
There
was discussion about the time table for filing an appeal.
Mr.
Proulx: I have a problem with a
one-sided question to Town Counsel. I
would like to be able to address that with him.
Ms.
Mical: You need to get your own
lawyer, because the Town Counsel is our lawyer.
Mr.
Proulx: Why should I, as a town
person – I’m just asking him questions to see what his answers are.
You ask any one of them a pointed question, and you can get…
Ms.
Mical: You can ask the same lawyer
the same question and get three different answers.
Mr.
Proulx: That’s what I’m trying
to say.
Secretary:
The only question will be that I’m going to fax him what you gave to us
and the question will be whether or not the ZBA has jurisdiction to hear this
matter.
Mr.
Proulx: You just look at RSA 676:5,
and you look under that and it says, “... any
zoning ordinance adopted pursuant to 674:16.”
However, you go down and look at the rest of it and it says this is
the Board of Appeals.
Ms.
Hinnendael: That’s right, but
there are certain things that you can’t come to this Board for.
Mr.
Proulx: I understand that, but the
Board of Appeal can look into any decision by any administrative officer not
matter what the charge is.
Ms.
Hinnendael: But I think that
excludes some people, and that’s why I would really like to hear…
If Don says we should hear it, then we’re happy to hear it and you know
we are. But we got one answer saying
that we shouldn’t hear it and that’s why I think that Don should have the
whole thing and…
Mr.
Proulx: Just for a point of
interest, I’ve already been to a lawyer.
Ms.
Mical and Ms. Hinnendael: That’s
all right.
Mr.
Klinedinst: Mr. Proulx, that makes
it even more important that we get it in writing from the Town Counsel stating
why this Board should not hear it.
Ms.
Hinnendael: Because we need the
advice.
There
was no second to Ms. Mical’s motion made earlier.
Ms.
Hinnendael made the motion to have the
Secretary fax the letter from Paul Proulx to Don Gartrell and get a written
opinion from him on whether the Board should hear it or not, and if there is a
time table for Mr. Proulx to file something with the court if the Board can’t
hear it. If the Board can hear it,
then he’ll have something else to appeal to the Superior Court.
If the Board needs to hear it sooner, then we’ll have to figure
something out.
Ms.
Mical: This letter just came today.
If it happened to be a 30-day, which I think it is for an appeal, then
the date was already missed.
There
was a discussion among the Board about the time table for an appeal, and Mr.
Proulx said that he didn’t remember when he received the letter from the
Selectmen.
Ms. Joss seconded Ms. Hinnendael’s
motion. The motion passed by a
unanimous vote.
Ms.
Thoits: This is a very confusing
matter, because I can see where Mr. Proulx is coming from.
Ms.
Mical: I can, too.
But unfortunately it’s in the wrong spot.
Ms.
Thoits: However, if they’re
violating a court order, which they apparently are, I’m not sure what we can
do about that.
Ms.
Mical: That’s the courts…
Ms.
Hinnendael: That’s why I would
like it in writing from Don so that we actually have documentation.
Ms.
Thoits: I think that the Board
should meet with Don Gartrell in person to discuss this matter.
Mr.
Proulx: If I may, my problem is not
with the violation of the court order; it is with the lack of enforcement by the
enforcing body that reviews. Your
authority is to deal with any changes…
Ms.
Thoits: Just a minute, Mr. Proulx.
I did read in here that we cannot tell them that we need to enforce it.
I can sit here and hunt for it… It
says that the Zoning Board cannot tell the Selectmen to enforce the code.
Ms.
Mical: Right.
Mr.
Proulx: RSA 674:33 says that you can
take over the authority of that administrative body.
Ms.
Thoits: I don’t know.
It’s beyond me. I think we
need to meet with Don, and we can discuss the hardship issue at the same time.
The
Secretary will contact Don Gartrell to set up a meeting that will be agreeable
to both him and the majority of the Board, and will contact the Board members of
the date and time of the meeting. She
will fax the information to Don’s office after the meeting.
VII. Sailer & Hale: Stipulation
Mike
Sailer and Andrew Hale, property on
Ms.
Thoits, Mr. Hale and Mr. Sailer all agreed that they are at this meeting to
discuss a Stipulation that was agreed to between the attorneys for the Town and
Sailer and Hale. Corrected copies of
the stipulation have been received from the attorneys.
Ms. Thoits read a letter received from Don Gartrell on
Since my letter to the Board dated
This Stipulation was submitted as a draft
at the same time it was being submitted to Sailer & Hale, and I expect to
hear tomorrow if they wish to make any changes.
If so, I will communicate that to you before your meeting.
Hopefully, this may be helpful to all concerned.
Email
received from Don Gartrell January 11, 2005:
Enclosed is a revised Stipulation
correcting the County for the acknowledgements and adding a provision that the
Board will receive a water quality report on the well test results at the time
of filing an application for a building permit with the Selectmen.
At my request, the last sentence of paragraph 3 has been deleted, so that
MTBE – if detected at all – will be simply one of the possible trace
elements which will have to be evaluated according to the State drinking water
standards. It is my understanding
that MTBE is an element used in gasoline fuels to replace lead additives, and
was not even used until after the old Dump was closed.
In the unlikely event that it would be detected on the Sailer & Hale
site, it would probably not have anything to do with the former Dump’s
existence and would be a problem that should be addressed under the drinking
water standards with regard to any potential residence to be constructed on the
site.
I hope that the proposed Stipulation
allay your proper concerns about granting a special exception to permit a
residential use of this commercial lot.
Don Gartrell
Ms.
Mical: I think that Don’s letter
of January 5th is important, because it says…
Ms.
Thoits: Would you please read the
letter [or portions] into the record?
Letter
from Don Gartrell to the ZBA dated
[starting
with the second paragraph]
His precise answers to your questions lie
in the wording of the proposed stipulation that the parties might agree upon,
and what is done with that stipulation… in
other words, the Devil is in the details. In
my view, the stipulation should acknowledge that Sailer & Hale know that
their lot abuts the former dump; that although the history of the land
surrounding the former dump reveals or suggests no contamination on or emanating
from the dump site, the soils and groundwater on the Sailer & Hale property
should be tested for possible contaminants; that Sailer & Hale assume
responsibility to determine by such testing that their property is free of
identifiable contaminants as a condition of obtaining any building permit to
construct a residence thereon, and that either the Stipulation be recorded in
the Registry of Deeds or that any deed conveying the subject property expressly
state th4e fact – that the site is adjacent to the former municipal dump of
the Town of Warner.
It is my opinion that all of those
conditions are reasonable and defensible criteria upon which to base the grant
of a special exception to construct a residence on the commercial lot.
They do not shift the ultimate liability for contaminants caused by the
use of the dup to a subsequent owner of adjoining property, nor do they require
such an owner to absolve the Town from an undefined, unknown liability imposed
by law on the Town.
In the event that a satisfactory
stipulation cannot be reached, the Board may deny the special exception with the
adequate reason, which should be expressed in terms of the applicable tests for
granting a special exception.
Ms.
Mical: I think it’s important that
– I realize that it says “or” – but I believe that both the stipulation
should be recorded in the Registry of Deeds and that any deed conveying subject
property should state the fact that the site is adjacent to a former municipal
dump.
Mr.
Howe: That isn’t the stipulation
that I have from Don.
Ms.
Mical: This is a letter from January
5th. It is referring to
the stipulation that you have in your hand.
Mr.
Howe: But isn’t this the one that
he came to?
Ms.
Mical: No, this was written by Mr.
Sailer and Mr. Hale’s lawyer. And
Don has read it, and this is what he said – “the Devil is in the details.”
Mr.
Hale: May I interject?
The stipulation was drafted by our attorney, and editorial changes at the
request of your Town attorney were taken into account and they both came to an
agreement on the stipulation that you have in front of you now.
It does require signatures of us and the Chairman of the Town of Warner
Zoning Board of Adjustment, as indicated on page 2 of 3, and as far as being
recorded with the Deed…
Ms.
Mical: That’s the letter that he
wrote to us.
Ms.
Hinnendael: You have the original?
Ms.
Thoits: I assume I do.
Ms.
Mical: Do you all have the letter
from Don?
The
Board: Yes.
Ms.
Mical: OK.
Ms.
Hinnendael: I think that the only
thing – when we approved this application…
Mr.
Howe: The Stipulation is agreed to
by Don.
Ms.
Mical: But he also is saying in his
letter of January 5th that he recommends that these things be done.
Mr.
Howe: But this says it is the
revised Stipulation.
Ms.
Mical: Yes, it does.
But I didn’t see where it addressed, in the Stipulation, those two
things.
Mr.
Howe: Well, I think that they
negotiated this, or that is my understanding.
Why are we going back to the 5th of January?
Ms.
Mical: Because…
Mr.
Howe: Is this not by Town Counsel by
the 11th? Does this not
supersede what he did on the 5th?
Ms.
Mical: No, it doesn’t supersede.
It goes with.
Ms.
Hinnendael: I’m going back to the
original – is this the negotiated one, between the lawyers?
Mr.
Howe: That is correct.
Ms.
Mical: Yes.
Ms.
Hinnendael: I think that if Town
Counsel has reviewed this and approved it, the one thing remaining from the
approval from the approval of their building was to get a stipulation that they
know that they’re located next to the Town dump.
Ms.
Thoits: And isn’t it also in the
Stipulation that they have to test the water?
Ms.
Mical: Yes.
Ms.
Hinnendael: So this is the
Stipulation that our Town Counsel negotiated for us…
Mr.
Howe: Where does she get this sh__?
Ms.
Hinnendael: … for us, with their
lawyer. It’s done, and Don is
recommending that we can approve this because we’re the ones that raised it,
and we got the stipulation that we wanted. So
I move that we sign the Stipulation and move on.
Mr.
Howe: And I second it.
Ms.
Mical: Because the stipulation does
not say that they even have to record this at the Registry of Deeds, the next
person that they sell this to will not even know that there is a dump next to
it.
Mr.
Hale: If I may, we are required by
Ms.
Mical: Yes, I know that you’re
supposed to.
Mr.
Sailer: We will.
Mr.
Hale: Well, I’d rather not have my
integrity challenged, number one. Number
two, the Stipulation has a place that says that “the foregoing has been
acknowledged before me to be registered…”
and that’s why there are all of those signature blocks and places for
stamps. So at great expense and
time, we have fulfilled the requests of this Board and your Town Counsel and our
expensive attorney have come to an agreement on this and that’s where we sit
today with this before you now.
Ms.
Hinnendael: And that’s why I moved
that we sign it.
The
Board and the Secretary had different copies of the Stipulation, so Joanne read
one copy and the Secretary reviewed the copy believed to be the original to make
sure they were the same. They were,
with the exception of the date of the January meeting of the ZBA.
Ms.
Mical: In reading that, I didn’t
see where this says that it needs to be registered.
Mr.
Hale: That’s what all of the
signatures are for at the end.
Ms.
Mical and the Secretary: Those are
just the places for the notary to witness the signature of Mr. Hale, Mr. Sailer
and the Chairman of the ZBA.
Mr.
Hale: That was what I was told –
that the signatures at the bottom were for the registration – by my attorney,
and the Town’s attorney knows that our intent it to have the document
registered.
Ms.
Mical: It doesn’t say on here that
it needs to be registered.
Ms.
Hinnendael: What I just read was
faxed by Don on January 11th. Maybe
that was part of the negotiation.
Ms.
Mical: But that’s absolutely crazy
on our part not to require it to be registered.
Mr.
Hale: The fact that we’re even
doing this is almost a moot point. I
understand why we were asked to do this in the first place, but as indicated in
the stipulation, the town never officially documented the closure of that
landfill.
Ms.
Mical: It’s not a landfill;
that’s why.
Mr.
Hale: Landfill, dump – the state
refers to it as both. The town never
officially recorded the closure of the site to the state of
Ms.
Hinnendael: Do you have to file
something with the Special Exception with the Registry of Deeds?
Ms.
Mical: No.
Ms.
Hinnendael: Right, so why can’t we
file this ourselves?
Secretary:
I go there for the Planning Board anyway.
Ms.
Hinnendael: So he’s just saying
that either the Stipulation can be recorded at the Registry of Deeds, which we
can do, or that the conveying of subject property, etc.
So if we take the Stipulation…
Ms.
Mical: As long as it is an original
copy. You have to record an original
copy.
It
was discussed and decided that two copies would be signed and notarized at the
Town Clerk’s office, after which the Secretary would record the document with
the Merrimack County Registry of Deeds. All
agreed.
Ms.
Mical made a motion to have the Secretary
record the Stipulation at the
Ms.
Joss: Where does this leave them in
getting the Variance?
Ms.
Mical: They already have it.
Then they get their Building Permit, after giving the results of the
water test to the Selectmen.
The motion was voted on and passed by a
unanimous vote.
VIII. Communications & Miscellaneous
·
Ms. Thoits announced a Land
Resource Management Workshop being given by the DES.
·
Office of Energy Planning is having
a seminar in April, and Ms. Thoits read the announcement card received in case
anyone wishes to attend.
·
Alice Chamberlin has resigned as an
alternate member of the Zoning Board. Ms.
Thoits asked the Board to submit names of possible new alternates for
appointment by the Selectmen. Ms.
Mical asked the Board to think about names and to submit them at the next
meeting.
·
Ms. Mical:
I would like to point out that the definition of Home Occupation on the
Use Table in the Zoning Ordinance says, “Home Occupation not involving the on
lot full time employment of persons not dwelling in the home.”
That’s where I got that information.
There is a discrepancy in the zoning ordinance.
Ms.
Hinnendael: How can we correct that?
Secretary:
It’s like the wording in the sign ordinance, which is being put before
the voters this March as a proposed change to make the sign ordinance and the
Site Plan Regulations match. I guess
I need to let the Planning Board know about the discrepancy so that they can
correct it for 2006.
Ms.
Thoits: Yes, because they need to
match.
·
The Board confirmed that Ms. Thoits
and Ms. Mical are scheduled to meet with the Budget committee on Monday, January
24th at
IX. Adjourn
A motion
was made and seconded to adjourn. The
motion passed. The meeting was
adjourned at
Minutes approved: