Minutes of the Meeting and Public Hearing
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 January 19th Zoning Board of
Adjustment Meeting
A motion was made and seconded to
approve the minutes of the
IV. Case #01-05: Variance – continued from the January 19th meeting
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. Klinedinst had a question
regarding which application the Board is to use for tonight’s meeting – the
original one considered at the February meeting, or the one handed in for this
meeting. Mr. Main said that there
was some confusion on his part as to whether he was asking for a use variance or
an area variance. He said that he
didn’t understand the hardship issue as well, either.
The Secretary stated that at the last meeting, the Board had suggested
that Mr. Main seek advice or counsel before the next meeting, and that the Board
would consult with Town Counsel on the hardship question.
Mr. Main also handed out to the Board members a presentation that he had
conceptually presented to the Planning Board at their February meeting, showing
what he planned to do with the property should the variance be granted by the
ZBA.
The Board asked Mr. Main to read
his responses to the conditions required for a variance to be granted.
These responses are from the amended application handed in at this
meeting:
A.
No diminution in value of surrounding properties would be
suffered.
Changes to the grounds would enhance the property, therefore increase
surrounding property values.
B.
Granting the variance will not be contrary to the public interest.
The property will be improved and maintained, and be seen by the public
as an improvement.
C.
Denial of the variance would result in unnecessary hardship to the
owner seeking it.
Simplex Technologies v.
1.
A zoning restriction as applied to their property interferes with
their reasonable use of the property, considering the unique setting of the
property in its environment:
2.
No fair and substantial relationship exists between the general
purposes of the zoning ordinance and the specific restriction on the property;
and
3.
The variance would not injure the public or private rights of
others.
Answer to 1: The zoning law
as applied does interfere with the reasonable use of this property AND this
property is unique. This property
has been operated as a repair garage, and wrecker service for 10 years.
This property has a 30’ x 60’ 3-bay garage, built to run a business
out of. This property has
substantial frontage on a state road (Route 103).
This property is an abutter to the
Answer to 2: The zoning
ordinance as applied to this property is unfair as it restricts the use of a
3-bay garage on the property.
Answer to 3: No other
residential property has a direct view of this property.
There will be no impact on the private rights of others.
D.
By granting the variance, substantial justice would be done.
This property is right next to a municipal building and on a state
highway; it is well suited to house a commercial business, where limited
commercial property is available.
E.
The use must not be contrary to the spirit of the ordinance.
The intended use will be a local sign business and mail order business.
Ms. Thoits asked if the Board had
any questions.
Ms. Hinnendael:
Do we have a map of the area?
Ms. Mical got the tax maps and
the Board looked at a map provided by Mr. Main.
Ms. Joss:
Who occupies
Mr. Main:
The Lamora family.
Ms. Joss:
Is there a house on that lot?
Mr. Main:
No, just a barn.
Ms. Mical showed the tax map to
the Board and told them what was on the abutting properties.
The property abuts OC-1 district, and there is a section between
Mr. Klinedinst:
I don’t see why we’re going through this exercise when the Town
attorney has advised us that you can’t have two different businesses on one
property. Isn’t that what he said?
Ms. Thoits:
He said that you can’t have two principal uses on a property.
Ms. Mical:
He also said that it says that in our zoning, and I have hunted through
our zoning and it does not say that. I’ve
always said that you can’t put two houses on a property, but ours is very
specific. It is letter “L” in
the book, and it says, “Residential
Structures per
Mr. Howe:
Where did Don find it?
Ms. Mical:
He represents several other towns, too.
Mr. Howe:
He’s confused, you mean?
Ms. Thoits:
That’s a possibility. I
couldn’t find it, either.
Mr. Klinedinst:
Did you to back and ask him?
Ms. Mical:
No, I did not. I couldn’t
find it and I have not talked to Don. But
you wouldn’t believe me, anyway, even if I told you he said that.
Mr. Klinedinst:
I would believe you, but that’s not the point.
The point is that we can’t let things like that happen.
We need documentation.
Ms. Mical:
I’m just saying that it’s nowhere in this book; it’s not in the use
tables and it’s not in the zoning ordinances.
Mr. Howe:
I make a motion that Martha…
Ms. Thoits:
John, you can’t – you’re recused from this case because you’re an
abutter.
Mr. Howe:
Then you make a motion.
Ms. Thoits:
No, John, you really should be sitting out there.
I looked through the book, and I couldn’t find where it said you
couldn’t have two principal uses; only that you couldn’t have two principal
residences.
Mr. Klinedinst:
But the fact that he did say that, and it has been recorded – without
going back and substantiating what he said through the ordinance book or in an
RSA, we’re leaving the town open to a challenge to any decision we make here
that is in the positive.
Ms. Mical:
Do you want to postpone?
Mr. Klinedinst:
Well, we went through the process of talking to Don about various things
and this was one of them. He brought
it up. He also brought up – and we
haven’t covered it yet – the court opinion on Simplex Technologies and he
essentially educated us on those two – the area variance and the use variance.
But I think it’s worthwhile. As
we’re going on here, I see a continuation…
We have an application, and I see the continuation of refining the
application beyond the initial application to meet the specifics that we
question as we go through the public hearing on the application.
Ms. Joss:
Isn’t that logical – if you want a variance, that you get whatever
information you can to support your wish?
Mr. Klinedinst:
But the applicant keeps amending the application supporting his position,
and my point is this: If the
applicant supplies the initial application, then that’s the application we
should go by and not continue to amend it.
Ms. Mical:
Maybe we need to consider this as additional information and not an
amended application. Yes, he used
the form…
Ms. Hinnendael:
I did ask him to come back with more information.
Ms. Mical:
Right, we’re the ones that asked him to do it.
Ms. Thoits:
He simply wrote it on the form and probably if he had just written it on
a piece of paper we would have accepted it.
Mr. Klinedinst:
If that’s what you think. I
think that it’s a continuation of refining the application to meet the
requirements that are set forth in the ordinance.
Ms. Joss:
To me, that is part of the process. What
if there were different abutters here and they wanted to speak for or against
it. Would we not hear them because
they didn’t speak at the first public hearing?
Mr. Klinedinst:
Well, how many times do you accept an application?
Ms. Mical:
I felt that this was an addition. That’s
my personal opinion.
Ms. Joss:
That and the fact that he was asked to get more information.
Ms. Hinnendael:
Besides the whole hardship thing, because of the two principal uses –
where he says that no other houses have a direct view of this property – there
are some houses that are directly across
Ms. Mical:
The neighbors on
Ms. Joss:
That’s true.
Ms. Mical:
The neighbors that were opposed to it were all on
Mr. Klinedinst:
I think that #12
Ms. Mical:
He wasn’t here.
Mr. Klinedinst:
He doesn’t have to be here. What
I’m challenging is what Joanne is challenging; that no other residential
property has a view of this property. That’s
not true. I think #12
Mr. Main:
Here’s a picture from that view, and that mound and the trees are in
the way. Also, I walked the entire
area and looked at the property from everyone’s property, and unless you’re
driving by in a car then it really does not…
I took many angles.
Ms. Mical:
Can you tell us where photo #3 was taken from?
Mr. Main:
Yes, that was back almost in
front of the house across the road [
There was discussion that the
power boxes and evergreen trees block the view from the house in question.
Mr. Klinedinst:
The applicant states that the zoning law, as applied, does interfere with
the reasonable use of this property and that the property is unique.
Yes, that property has been for sale and I know that people have looked
at it in the past as residential property. I
don’t see how the zoning law as applied interferes with the reasonable use of
the property. The other thing is
that we go back to this unique thing. We
don’t have a definition of what unique is, and this area is a transitional
area, from commercial property to residential property.
The fact that it is transitional as you drive through doesn’t make it
unique, as I understand the definition of unique.
Ms. Thoits:
I thought that Don indicated that the fact that the Town garage was there
did make it unique.
Mr. Klinedinst:
But you come up
Ms. Hinnendael:
When you drive down 103, that’s a good distance before this property.
Mr. Klinedinst:
Right, and so is the Town garage.
Ms. Joss:
I think that it is kind of unique in that it is a piece of property with
a monstrosity of a garage in the back yard. I
think that you can define unique as anything that is different from something
else. Why get hung up on that?
Mr. Klinedinst:
To support a variance based on the uniqueness that the applicant states
– I disagree. It’s not a unique
property, and I don’t think that the zoning law as applied prevents the
reasonable use of the property. If
he wanted to buy the property and move in and he wanted to have a home business
or live there with no business whatsoever, then that’s reasonable use of the
property. Supporting that there are
other commercial businesses operating in this R-2 zone and that another
commercial business is being built ½ mile from this property; by that I assume
you mean the Brayshaw property?
Mr. Main:
Yes.
Ms. Thoits:
But that is commercially zoned.
Mr. Main:
Yes, but I didn’t say that it wasn’t.
But that’s got residences right across the street.
Mr. Klinedinst:
But that doesn’t make your property unique.
Ms. Joss:
Ken, how do you want unique to be defined?
Mr. Klinedinst:
I think we have to take it to a higher level than is here.
Well, I live in a unique house – it’s unique for the Town of
Ms. Mical:
Right, but your house isn’t unique.
There are hundreds of them in
Mr. Klinedinst:
I said for the Town of
Ms. Mical:
Yes, but…
Ms. Thoits:
I don’t think unique should apply to the buildings.
Unique should apply to the land.
Mr. Klinedinst:
The property isn’t laid out in a unique way.
The property lines aren’t unique on this property.
Ms. Thoits:
But if you’re seeking a use variance, it should be the property
that’s unique and not the buildings.
Ms. Hinnendael:
This is something that came out in the Bacon case.
Bacon v. Town of
Ms. Thoits:
This is what…
Ms. Mical:
I think that there is a special condition.
Ms. Thoits:
I’d like to read this paragraph from the Supreme Court – the one that
we got on unnecessary hardship:
In addition, the concurring opinion also addressed the standard from the
Simplex case concerning whether the hardship arises from the unique setting of
the property in its environment. In
attempting to clarify this somewhat amorphous standard, the landowner must show
that the hardship is a result of unique conditions of the property, not the area
in general.
Mr. Klinedinst:
Well, he’s showing the area in general.
Ms. Thoits:
That’s what I said, was that the uniqueness really needs to be the
land.
Mr. Klinedinst:
If you had what we call a non-conforming lot, that would possibly be
unique if it was used as a residential property.
I don’t know if Lamora is still in there or not, but he lived there
when he operated the business. He
had some kind of variance or something, didn’t he?
Ms. Mical:
He had a Home Occupation permit.
Mr. Klinedinst:
OK, then it is still a residential piece of property.
Ms. Thoits:
He lived there as a residence, but what he ran appears to be a business.
Mr. Klinedinst:
So he was within the ordinance, right?
Ms. Mical:
Basically.
Mr. Klinedinst:
I think what some of the Board members what to do, and I can understand
this – we have a gentleman here that contributes a lot to the community,
supporting sports and things like that, and he has a family that lives here.
We have a piece of property that is less than acceptable in its
particular state, and by granting him the variance we satisfy the applicant’s
request and we look to the future of the property being upgraded from its
present condition. But that’s not
what variances from this Board are for. Not
to do…
Ms. Thoits:
Ken, I want to read you another paragraph from this article, which is
sort of directed at what you are saying: One
lesson is very clear from Bacon: If
you hope to establish a record that can win on appeal, you must be in solid
evidence on the precise hardship criteria. I
guess, as voting members, we have to be able to really defend our opinion on
whether we’re voting because it follows these criteria or because we feel that
it is a good business to be there. I
see what Ken is saying.
Mr. Klinedinst:
I think that this would be a good thing to happen to that piece of
property, having Mr. Main and his family owning it.
But based on that, that’s not what this Board is for.
Ms. Hinnendael:
I think that’s what I said before, that Steve has a nice business in
town.
Ms. Thoits:
Right, that’s why we’re all having a hard time.
Ms. Hinnendael:
It’s tough to say no. This
Board has had to say no before.
Ms. Thoits:
I feel that the business wouldn’t really harm the area and would
certainly improve the looks, but does it really meet the criteria?
Our job is to be able to defend that it met all five of those criteria,
and I think that as a Board we have to decide because it does meet all five of
those and if it does, we should vote yes. If
we really are not 100% sure that it meets all five of the criteria, then we know
what we have to do.
Ms. Joss:
Do we agree that he has met a, b, d and e?
That it is only c that he hasn’t met?
Ms. Thoits:
I think I agree with a, if we go through them individually.
Certainly, if he makes the property look better it wouldn’t diminish
the value of the surrounding property.
Ms. Hinnendael:
That’s for the Planning Board to decide with a Site Plan Review.
Ms. Thoits:
Right, but if the property was upgraded and the building was made to look
good, I don’t think it would diminish the surrounding property.
Mr. Klinedinst:
You’re commenting on what the applicant would do to the land.
Ms. Thoits:
Right, to make it look better.
Mr. Klinedinst:
What would it do based on UPS trucks going in and out whatever number of
times a day?
Ms. Thoits:
UPS came to my house today.
Ms. Hinnendael:
But he has a business.
Ms. Mical:
He only has UPS delivery once a day.
Mr. Klinedinst:
He’s applying for a light industry – that’s the type of his
business. He’ll increase the
delivery situation on that property on
Ms. Mical:
I think that he meets that criterion.
Ms. Thoits:
OK. B – Granting the
variance will not be contrary to the public interest.
Do you think it meets b?
Ms. Mical:
Yes, I think it does.
Mr. Klinedinst:
(reading from the old application) He says it will decrease traffic.
Ms. Thoits:
You’re looking at the old application.
Mr. Klinedinst:
Is the old application not valid?
Ms. Thoits:
Yes, the old application stands.
Ms. Mical:
And in addition, it says…
Ms. Thoits:
Let him talk.
Mr. Klinedinst:
I don’t think that it will generate more traffic.
There’s no traffic there at all now, at that dwelling.
Mr. Main:
He could come back and start his repair business, or somebody else could
move in there and start a repair business – move into the house and start an
auto repair business.
Mr. Klinedinst:
It would be a home business.
Mr. Main:
But it’s still going to be the same traffic.
Mr. Klinedinst:
But I think that it’s wrong to take the position that if somebody else
moves in there and makes it a home business…
Mr. Main:
You have to compare it to something.
Mr. Klinedinst:
You can substantiate that there will be less traffic.
By you being granted a variance, the actual traffic is going to increase.
Ms. Mical:
No, compared to what was there, the cars going in and out and the little
delivery trucks that bring the parts to the cars.
He had two of those a day on most days and he had his customers.
And he had his tow truck business. Mr.
Main is going to have the UPS truck, his employee and himself.
Ms. Hinnendael:
And his seasonal mail order business, which is going to generate more UPS
trucks.
Ms. Mical:
They only come once a day.
Mr. Klinedinst:
That’s not true – you can have UPS more than once a day.
You can have a UPS delivery, there’s Fed Ex, etc.
Mr. Main:
Less than a mile from that property, there is a business.
It’s Route 103 – it’s not riding up in the country.
It’s on 103.
Ms. Hinnendael:
I know.
Mr. Main:
They only go by one other person’s driveway, if they even go by that.
And that person was in favor of this.
Mr. Klinedinst:
I’m looking for the other part of b.
I agree with the improvement of the property.
Mr. Main:
I see that as an improvement to the town.
Ms. Thoits:
Go on to d – by granting the variance, substantial justice would be
done.
Ms. Hinnendael:
The reason I have a problem with this is that I went to the Planning
Board the other night, and I heard a member of that Board say that they want to
propose extending the commercial zone down to
that many years ago, but I’m
not sure. I don’t consider it
right next to a municipal building. I
know it abuts the Town of
Ms. Thoits:
It’s not a commercial district.
Ms. Hinnendael:
That’s right, but that’s what this is saying.
I don’t consider what Mr. Carlson has as a commercial district.
I mean, that’s been there much longer, obviously, and it’s farther
away. That is more directly across
from the Town shed than anything, and the building down the street is a
commercial district that you mentioned before.
They’re building where commercial property is.
So I would have a problem with the answer to “d”.
Ms. Thoits:
Are we done with “d”? OK,
let’s go on to “e” – It must not be contrary to the spirit of the
ordinance.
Ms. Hinnendael:
As a home business, I don’t think that it is contrary to the spirit of
the ordinance because I consider it more of a home business type of thing.
Ms. Mical:
How about hearing what the public has to say?
Ms. Thoits:
OK. Let’s close the meeting
and open the public hearing.
Mr. Proulx:
I think that you’re talking that the land directly east of this
property is OC-1 zoning. It’s all
preservation land, as I understand it. It’s
a park, open to the public. The
town, in their wisdom, took part of that for the Town shed.
It is quarter of a mile down the road – you can’t see any building
whatsoever from that piece of property. You
can’t see any of those buildings from 103.
Ms. Joss:
Do you mean the Town shed? You
can see that from 103.
Mr. Main:
You can see it from 103 – I have a picture of it right here.
Mr. Proulx:
Looking up the driveway.
Mr. Main:
No, from 103.
Ms. Joss:
You can see it.
Mr. Proulx:
You can look at it, yes, from 103.
Mr. Main:
You just made the statement that you can’t see it at all.
Mr. Proulx:
You can see as much of that as you can see…
Mr. Howe:
That’s laughable.
Mr. Proulx:
Well, that’s like the
Ms. Hinnendael:
But wouldn’t you like to see that property cleaned up?
I mean, if this was just a home business, it would happen.
He has a great landscaping plan; he’s going to be going before the
Planning Board and you would be able to say you would like more trees or bushes
or whatever, rather than changing it to a commercial zone.
Because I have a feeling that is where it is going to go, from the
Planning Board’s point of view.
Mr. Proulx:
It goes there with a variance. It
becomes commercial if you put a variance on it.
Ms. Hinnendael and Ms. Joss:
No it doesn’t.
Mr. Proulx:
Yes, it does. It goes under
the criteria of commercial.
Ms. Hinnendael:
I thought he was going to be light industrial, which is not commercial.
Is he going to be taxed as commercial?
Mr. Proulx:
We have an example of that already.
Mr. Main:
If the property goes commercial, that means that that house could be used
as a commercial building.
Ms. Hinnendael:
And would you be paying the commercial tax rate?
Mr. Proulx:
He would if that variance goes through.
Mr. Main:
But with this variance, the house cannot be used as a commercial
building.
Ms. Hinnendael:
I want to ask Martha – will he be paying commercial taxes on that?
Ms. Mical:
I don’t believe so, because the house would be used as a residence.
Mr. Proulx:
What? You don’t take a
piece of property – you don’t make a building commercial; the whole piece of
property becomes commercial.
Mr. Main:
It’s stated right in the variance – the house will remain a
residence.
Mr. Proulx:
You can’t do that – you can’t split property.
Mr. Mical:
You can have a residential property with a commercial building on it.
We have several in town.
Mr. Proulx:
But you cannot split that property.
Ms. Mical:
No. But you can have a
commercial building on a residential lot and another residential building on
that same lot. It doesn’t change
the zoning.
Ms. Thoits:
It doesn’t change the zoning. It
is still residential.
Mr. Proulx:
The other thing is – we’re talking about traffic.
UPS and Fed Ex both already come twice a day to this other establishment
within our district. I guess we’re
talking about how many people were there before.
It was a residence – it was just Mr. Lamora and his wife and…
Mr. Howe:
His son.
Mr. Proulx:
We’re talking about Fed Ex and UPS – prior to Christmas, how many
people did you employ?
Mr. Main:
Prior to Christmas?
Mr. Proulx:
Prior to Christmas – sometime this fall.
Mr. Main:
In my seasonal business?
Mr. Proulx:
What is your maximum number of personnel in any part of the year?
Mr. Main:
10.
Mr. Proulx:
These people are going to be going in and out of there several times a
day. That’s going to be a
heck of a lot more traffic than Lamora ever thought of having over there.
Lamora did a very small business.
Mr. Main:
There’s a driveway and there’s Route 103, which is a state highway.
And you live on the other side, down a road and down back.
And that is your historic district, and I respect you for having that.
Mr. Proulx:
The historic district goes right to that road.
Ms. Thoits:
Actually, you’re not supposed to be talking to each other.
I’m going to have to stop that. Do
you have anything more to day?
Mr. Proulx:
No.
Ms. Thoits:
Are there any other abutters that wish to speak?
Mr. Howe:
I just – if I can remember all of the things that have just flown by
here – there have been a number of mis-statements made, and Mr.
Proulx has corrected a few of them. Lamora’s
property, as a home business, was absolutely correct: he lived in the house; he
worked in the garage and he had one employee who was his son – a family
member. I can’t think of any
particular business that could be called incorrect.
It’s allowed in a family business to have a separate building in which
a portion of the work can take place, and it seems to me that you really
couldn’t fix cars in the basement of a house so that was a reasonable thing
that he did. To talk about that
property as being unique because it has a three car garage is a great misnomer.
Quite a number of residences in this town have three car garages.
I think that if we could attract some kid, some rich fellow who liked
antique cars, he might really like that 3-bay garage.
It has a hydraulic lift in it -- it seems to me that if there is anything
unique about that property it may be that garage.
Ms. Joss:
You just said that was a misnomer.
Mr. Howe:
I beg your pardon?
Ms. Joss:
You said that the three car garage was a misnomer.
Mr. Howe:
But it has a hydraulic lift in it, my dear.
That’s the only thing that makes it unique in this district.
Mr. Main:
It doesn’t have a hydraulic lift.
Mr. Howe:
Oh, did he sell that?
Mr. Main:
Yes.
Mr. Howe:
Oh, excuse me – I’m not supposed to talk to you.
Ms. Thoits:
You’re right; you’re not.
Mr. Howe:
Madame Chairman, would you ask the gentleman what happened to the lift?
Ms. Thoits:
He sold it.
Mr. Howe:
He sold it – selling off all the assets.
It is impossible to see any part of the town’s buildings from
Lamora’s property. You cannot see
the garage. You cannot see the sand
sheds – it’s impossible. Nor can
you see the Lamora property from the town shed, because I’ve checked them out.
It seems to me – something else I was worried about when you were
talking – this business of hardship. It
seems to me that the ordinance is referring to…
The property causes a hardship with it has ledges or it has [unable to
hear]. There are a lot of
properties… I remember we gave a
gentleman a variance for a barn that was back away from his property on another
lot because the lot that he was living on fell off.
That seems to me to be a logical use for the zoning board to do – to
allow a variance in a case like that. But
there’s no hardship on that land. It’s
a perfectly good piece of flat land and it has the buildings on it.
I think that we just need to find the right use for it.
And it is my feeling, as Mr. Proulx has pointed out, that we don’t want
to see a light manufacturing “commercial” use for that property next to the
historic district of Waterloo.
Ms. Thoits:
Is there anyone else that would like to speak?
Rhonda Rood:
I just did a little bit of research on line, about Simplex, and I came up
with this that the Supreme Court ruled on
Ms. Hinnendael:
But since Simplex, there have been like three or four more Supreme Court
cases, all in 2004, and they’re all saying something different.
So you get analysis on use variances and area variances from your Town
counsel and any other source you can, and that’s where the cloud is,
because…
Ms. Rood:
Basically, they’re letting board’s now have more latitude –
that’s how I read it, and I’ve read piles of this stuff – to have more
latitude in their judgment because it has been so restrictive for people not
being able to use properties as they wish to use them.
And that’s what Don said?
Ms. Hinnendael:
Yes.
Ms. Rood:
So really it’s the Board’s decision.
And I would also say, having been a property owner for many, many years
and a business owner here in Warner, I would rather see Mr. Main go in and
improve that property and use it on a limited variance that only he could
have…
Ms. Hinnendael:
They go with the property.
Ms. Joss:
We can put any stipulations on it…
Ms. Hinnendael: We
have to set limits, and it may mean that he can only have 2 employees there.
I mean, I’m surprised that there are 10 employees there.
Ms. Rood:
That is very rare and they’re part time.
He has one full time employee. In
actuality, someone could come back in and run that as a home business – Mr.
Lamora may decide to do that – and bring all of those junked cars back in –
and somebody else may decide to do that as well because it has already been
approved as a home business. That
why this seemed like such a reasonable use.
Ms. Hinnendael:
I know, and we’ve all agreed with that.
Ms. Rood:
And according to what I’ve read, I feel that Steve has addressed the
uniqueness of the property in many ways. It’s
not just the building; not just its location, but all of those things.
Mr. Main:
Did the town attorney state that it was unique because of the building on
it?
Ms. Joss:
No, what I was referring to is that the town attorney said that since
Simplex, the definition of hardship has really been broadened.
Mr. Main:
Did he say that the property was unique?
Mr. Klinedinst:
What he said was that it is an area of transition, as you come from Exit
9 for example. You go from
commercial to the town transfer station to residential.
He didn’t say it was unique.
Mr. Proulx:
We’re talking a lot about Simplex here, and I know a case of Simplex in
Ms. Hinnendael:
It was
Maryann Plass:
I’m the listing agent for the Lamora property and I’ve listed it
since September. I disagree with
this gentleman’s statement that there is no uniqueness in that 3-bay garage
only because 90% of the calls and showings that we receive on that property
happen to be, “what kind of business can we run?”
They see the garage and automatically think of business.
I haven’t shown it to anybody or fielded any calls from people that
wanted to live there. I think that
it is just inherent in the property that by allowing that structure to be there
– to be built initially like that – I think that it just yells out to
people: business, business,
business. I think the hardship is
that you have limited the use of the property to someone who will live there,
and that’s very limiting in itself with a 3-bay garage sitting there.
I showed it to someone who wanted to run a used car business there at one
point. That would have been
horrendous for the town. But I just
think that you have to consider that if Mr. Main was living there, you probably
would have granted him the variance and the hardship is that you’re not doing
that because he told the truth – that he’s not going to be living there.
Mr. Hinnendael:
I didn’t quite understand your connection to this situation –
Ms. Plass:
I’m the listing agent. I’m
selling the property.
Mr. Hinnendael:
Ok – so we have two real estate agents involved?
Ms. Plass:
Yes.
Ms. Rood:
What Mr. Proulx was saying about skipping from different areas of zoning;
what it says in this New Hampshire Supreme Court Zoning Opinion Signals
Divergence on Unnecessary Hardship – from Andrew Eills:
Examples are to operate a commercial establishment in a residential
area.
Secretary:
Ms. Thoits asked earlier about whether we had talked with the Central New
Hampshire Regional Planning Commission, because it is in the minutes, and I did
call. Kerrie Diers told me that the
Simplex – in her words – the Simplex case pretty much defines the use type
of variance.
Ms. Rood:
Right. That’s what it’s
for.
Mr. Proulx:
I have a quote here from the Supreme Court – that says, the
criteria for unnecessary hardship to warrant the issuance of a zoning variance
was not the uniqueness of the plight of the owner but the uniqueness of the land
causing the plight. Another
statement is that no hardship can be created, and then claim a hardship.
This has been proven in court many times.
People have built garages and then claimed there is a hardship and they
made them tear it down. You cannot
create your own hardship.
Ms. Hinnendael:
So you’re saying that Mr. Lamora created his own hardship?
Mr. Proulx:
[laughter]
Ms. Plass:
Would not the town have had to have approve that 3-bay garage?
Ms. Mical:
Yes, the town did approve that 3-bay garage.
Ms. Hinnendael:
But not the Zoning Board.
Mr. Proulx:
And they approved it with a buffer zone, and he cut all of the trees
down.
Ms. Thoits:
We know that Mr. Lamora did not do all of the things that he was supposed
to.
Ms. Plass:
Right, but the failure to keep the trees on the property was not the
thing that caused the hardship – I think that the…
Ms. Thoits:
But we’re not discussing Mr. Lamora, so any hardship that Mr. Lamora
caused for himself has nothing to do with this.
Seeing no one else who wishes to speak, I’ll close the Public Hearing
and reopen the Board meeting. Are
there any more questions or comments?
Mr. Klinedinst:
I would like to start a conversation among the Board members again.
The hardship issue is one that we need to address.
The other thing is that the one that says that the zoning restriction as
applied to their property interferes with the reasonable use of the property
considering the unique setting of the property in its environment.
We’re considering in this case that Mr. Main is the owner of that
property, which he isn’t, correct?
Ms. Mical:
But legal counsel has told us that that is fine.
Mr. Klinedinst:
I understand that and I’m not challenging that.
I say that the zoning restriction as it is applied to the property right
now; the way the zoning is for that property, it doesn’t restrict his
reasonable use of the property. He
can use that property; it’s not unusual. He
can use it as a home business; he can use it as a residence.
I don’t think he answers that particular question correctly.
His answer is that the zoning does interfere with his reasonable use of
the property, as the property is unique.
Ms. Mical:
I think that each one of us has to decide that for themselves.
I feel, contrary to what you feel, that it does interfere with his
reasonable use because he has this building that he can’t use – even if
he’s living there. If he’s
living there, he could use the garage. But
if he’s not living there, he can’t use the garage.
Mr. Klinedinst and Ms. Thoits:
Why can’t he use the garage?
Mr. Klinedinst:
Why can’t he put three cars in there?
Ms. Mical:
OK – he could. But I
don’t think that what he wishes to do with it is unreasonable use.
Ms. Thoits:
To make the garage the hardship to me – if he owned the land, he could
tear the garage down.
Mr. Klinedinst: Right.
Ms. Thoits:
So I don’t see the garage as a hardship.
It’s not very pretty there, and the Realtors might not be able to sell
it because it’s not very pretty there, but…
Mr. Klinedinst:
So he does have reasonable use of the land, doesn’t he?
Ms. Mical:
I feel that the zoning ordinance is restricting his reasonable use of the
land. Yes, I do.
We just disagree, and that’s ok.
Mr. Klinedinst:
I realize that. I think that
as you look at the Simplex information that was given to us by the town
attorney, I don’t think that it interferes with his reasonable use of the land
and that’s basically what our real estate agents covered – they covered part
of that in the documents that they read. And
I think the variance would be contrary to the public interest.
First of all, you have an historic district right across the street.
That is established. To say
that the Planning Board is extending the commercial zone up into
Ms. Mical:
That’s irrelevant.
Mr. Klinedinst:
That’s wishful thinking on someone’s part.
If it happens, it happens. But
that’s up to the voters; not someone on the Planning Board.
Ms. Mical:
I don’t think that it’s contrary to the public interest because I
think that an improvement to that lot would be a benefit to the public interest.
Mr. Klinedinst:
Coupled with a couple more UPS trucks and the employees?
Ms. Mical:
You’re on 103 – I don’t believe you’re even going by any other
driveway before you’re turning into the driveway to that property.
Mr. Klinedinst:
Is it in the public’s interest to increase the traffic on
Ms. Thoits:
How is it increasing traffic on
Mr. Klinedinst:
No, but he has employees, deliveries…
Ms. Mical:
I don’t think it hurts the public interest.
Ms. Joss:
How much of the year would you have the extra employees?
Mr. Main:
Two months.
Ms. Joss:
And what about the other 10 months?
Mr. Main:
Probably 2 employees.
Ms. Joss:
What two months do you have 10?
Mr. Main:
November and December.
Ms. Thoits:
In other words, the Christmas season.
Mr. Main:
Yes.
Ms. Thoits:
In the sign business, do you use… They
keep talking about light industry. You’re
not making the pots, correct? You’re
putting the sign on the pots. What
do you use to do that?
Mr. Main:
It’s a sand blast process.
Ms. Mical:
It’s a pressurized process that shoots sand onto the thing and it
etches it. Or it strips the paint
off, if you want to strip it.
Mr. Howe:
What about the banners?
Ms. Mical:
We weren’t talking about the banners.
Mr. Howe:
My dear, you ask him once if that was the only thing he was going to be
making.
Ms. Mical:
She asked the question of what is sandblasting.
Ms. Thoits:
He’s not allowed to speak. I’ll
ask it for him – aren’t they either cloth or plastic?
You just print them, you don’t sand blast them, right?
Ms. Hinnendael:
Do you use chemicals?
Mr. Main:
No. The paint is latex.
Ms. Joss:
How do you get whatever you’re putting on a banner – how do you get
it on there?
Mr. Main:
It’s on a computer generated file that’s cut out, and we strip away
the material and transfer it. It’s
a clean process.
Ms. Mical:
Would you repeat what you said before?
Mr. Klinedinst:
Water based paint v. other paints that have environmental issues with
them.
Ms. Mical made
a motion to grant the variance based on the fact that Mr. Main has substantiated
his hardship and the other requirements for a variance has have been presented.
Ms. Joss seconded the motion.
Ms. Hinnendael:
Are you going to put any restrictions on that?
Ms. Mical:
Do you want one?
Ms. Hinnendael:
I listened to the tape with Don, and that was one of the things that he
said we could do if we wanted to.
Ms. Joss:
I would also add the restriction that the variance goes only with Mr.
Main.
Ms. Hinnendael:
I don’t know that we can do that.
Ms. Thoits:
I believe he said we could.
Ms. Joss:
We can put any restrictions on it we want.
Ms. Mical:
That’s ok with me.
Ms. Thoits:
So the motion is that the variance
be granted based on the fact that Mr. Main has met all of the criteria and the
variance be restricted in that it goes only to Mr. Main.
Ms. Mical:
Yes.
Mr. Klinedinst:
I don’t think that Mr. Main meets the hardship criteria.
I don’t think that he meets the criteria that the way that the property
is zoned now – that it deprives him of his reasonable use of his property.
Beyond that, I think that this is essentially a procedure that is, for
those in favor of it, that will do the property as it exists today essentially a
favor and do Mr. Main a favor at the same time.
They want to improve the aesthetics of the property as it exists, but I
don’t think that’s what a variance is for in this particular case.
Ms. Mical:
So you would vote no.
Ms. Thoits: He
telling you why.
Mr. Klinedinst:
Yes, that’s why. I think
it’s important to have that on the record, because the biggest thing we talk
about – the most discussion is on the hardship.
He does not meet the hardship. Plus
we have the historic district in the proximity of that land; Open Conservation.
I think that what you do there is going to decrease the property values
in that area. And I think that
it’s not in the best interest of the public.
Ms. Joss:
Do you think that what Mr. Main wants to do would decrease the property
values more than Lamora’s?
Mr. Klinedinst:
That isn’t the issue.
Ms. Hinnendael:
Right, we can’t consider that. But
I said that the last meeting that I thought that this was a good plan but that I
didn’t think that it met the hardship requirement, and that is what we need to
vote on. I know the Mains and I like
them, but I also listen to the neighbors and then I also listened to Don, and he
said that we have to go by the zoning ordinances.
Ms. Mical:
Right. I think that it meets
the uniqueness – I really do, and I know that you guys don’t and that’s
ok.
Mr. Klinedinst:
I think that we need to be specific in the minutes as to what our
position is.
Ms. Thoits:
Any other comments? Are you
ready to vote? A yes vote will grant
Mr. Main a variance to put his sign business in the Lamora property and to rent
the house, and the variance would apply only to Mr. Main…
Mr. Klinedinst:
Before you vote, is there an ordinance on how many people can be in that
rented house, besides family or anything like that?
Ms. Mical and Ms. Hinnendael:
No.
Mr. Klinedinst:
How about how many cars that will generate?
Ms. Thoits:
I think that would be difficult.
Ms. Hinnendael:
I think a restriction, if it were to pass, is that it goes to Site Plan
Review – and we know it will – but to be sure if it were to be approved that
it goes in the approval that this has to go through Site Plan Review with the
Planning Board.
Ms. Mical:
It has to.
Ms. Thoits:
Any other comments? Ok, back
to the vote. A yes vote will grant
the variance; a no vote denies the vote.
Ms. Mical: Yes; Ms. Joss:
Yes; Ms. Hinnendael: No; Mr.
Klinedinst: No; Ms. Thoits: No.
The variance is denied by a majority vote.
Ms. Thoits:
Because there is a tie vote, as Chairman I have to vote to break the tie
and I have to vote no. I hate to do
it, but I have to say no. I don’t
think it meets the hardship either. If
I feel that it doesn’t meet the hardship and they take me to court, I’ll be
in trouble. You have the right to
appeal this and it has to be within 30 days.
If you appeal the decision, you must present some kind of new evidence,
because we have the right to deny it if there is no new evidence presented.
V. Consultation: Brian Farmer
Sign at the Farmer’s buffalo
farm on 360 Route 103 in Warner, NH
Ms. Mical:
This is the farm down by Annis Loop.
Ms. Joss:
Next door to the Donahue’s property.
Mr. Howe:
There already is a sign there.
Mr. Klinedinst:
Leaning up against the mailbox.
Ms. Mical: It says open, right?
Mr. Farmer:
It is a temporary sign.
Ms. Thoits:
What do you want to do with your sign?
Mr. Farmer:
I’m asking the question to see if I want to go through this process.
·
Trying to meet the setbacks from the state’s regulations
·
Must be 50 feet from the road
·
Have talked to Allen Pirroso – he thought I was putting up a
billboard when I was putting up my sign
·
Post must be 50 off of the road because the property is on a state
highway
·
Property is on a road that is a 50 mph zone
·
The required sign is only 4 square feet, or a 2’ x 2’ sign
·
Would like a sign with Buffalo Farm, name and phone number on it
·
A 2’ x 2’ sign, back 50 feet, would be in the trees and no one
would see it.
·
Would like a 4’ x 6’ sign, which is the size of the temporary
sign
·
A lot of signs on Main Street are larger and against the sidewalk
·
What type of lighting would be allowed?
A light bulb under it – the times in the year when it gets light early
would make it easier to see
·
People have difficulty finding the farm
·
Sells the meat at the home business – at the farm
·
Has the ability to put up a green metal sign in front of the
property
Mr. Howe:
It seems to me that your business would benefit from having a sign away
from your entrance, maybe 50 feet on either side, saying, “50 feet ahead –
buffalo farm”. Is there anything
like that we can help him with?
Ms. Hinnendael:
If you did the state sign, like the one for Foothills and McDonalds, it
says, “1 mile – Foothills Restaurant”.
The green metal signs.
Ms. Mical:
Directional signs, which is what that is.
Mr. Howe:
I think that would help a lot. I
don’t think that you need a very big sign.
I’ve always seen your temporary signs, but I see it when I’m on top
of it. If you’re forewarned, you
could say, “Hey, how would you kids like to see some buffalo?”
Mr. Farmer:
Right. I think that is
something that we’re trying to improve on.
Those directional signs are great, but we also need an actual sign up
there.
Mr. Howe:
You need a big bison head up there.
Mr. Klinedinst:
Why don’t you put a unique mailbox up there?
Mr. Farmer: The mailbox sign is
one of the only things that is allowed in the right-of-way.
Ms. Hinnendael:
Is you neighbor still up there?
Ms. Mical:
Yes.
Ms. Mical:
I guess that you need to decide what you really want for a sign before
you come in to the Board. You need
to have it be explicit, as to the colors and wording, etc.
Ms. Hinnendael:
Does that go through the Planning Board?
The design of the sign?
Ms. Mical:
No, but he has to come before us to get a variance for the square
footage.
Ms. Hinnendael:
And then it goes to the Planning Board?
Ms. Thoits:
No. He doesn’t have to go
to the Planning Board.
Ms. Mical:
He goes to the Selectmen.
Secretary:
Where does the sign ordinance come in?
That’s for Site Plan, right?
Ms. Mical:
Yes, and he was told earlier that he doesn’t have to come in for a site
plan.
Secretary:
But that’s where that comes into play; that’s what I’m trying to
understand. It’s only for those
who come in for a Site Plan Review. I
was just trying to get the procedure straight.
Mr. Farmer:
Do you guys know of another situation in town where there is business on
a 50 mph zone? Something that would
be similar?
Mr. Klinedinst:
Mr. Lamora had one on his business.
Mr. Farmer:
I know that Gamil has that big truck parked outside.
Ms. Mical:
What about Davisville’s country store?
There was a discussion that the
speed limit there is much less than 50 mph.
Mr. Farmer:
Can you explain the difference between a special exception and a
variance?
Ms. Mical:
A variance is required if it’s not permitted or permitted by special
exception in the Use Regulations table in the zoning ordinance for a particular
zoning district.
Ms. Hinnendael:
A variance is something that’s not allowed unless you come in for a
variance. A special exception is
allowed, but you need to…
Ms. Hinnendael:
There are certain things in this town, according to our ordinances that
people vote on, that need special exceptions.
People want to know – from the last ordinances that were passed – if
someone is bringing into a town an adult video store.
They want to be able to come into the Planning Board.
Mr. Farmer was told that he needs
to come in for a variance and not a special exception.
Mr. Klinedinst:
Does Mr. Lindley have a sign [on his buffalo farm]?
Ms. Mical:
No. He occasionally has a
temporary sign up.
Secretary:
The question came up if he does apply, regarding the fees.
Does he come under commercial or residential?
Ms. Thoits:
He would come under residential because it is a home business.
Mr. Farmer:
I also come under agricultural, which is not viewed as commercial.
Mr. Klinedinst:
Do you process up there, too?
Mr. Farmer:
No. I have enough other
things to do. Actually, it is all
federally inspected so that there are no questions.
Ms. Joss:
Do you send your animals out to be slaughtered?
Mr. Farmer:
Yes.
Mr. Thoits:
How do you take them?
Mr. Farmer:
Just in a trailer.
Ms. Joss:
Where to you take them?
Mr. Farmer:
We use about five different places. Unfortunately,
Mr. Farmer thanked the Board for
their time. Ms. Joss reiterated that
he should bring something paper showing exactly what he wants to have for a
sign. He said that he will decide
whether he wants to go forward with this or not.
He said that he had gone to a seminar where someone had said that in a 50
mph zone, for someone to actually see the sign the letters need to be at least
22 inches high.
VI. Communications & Miscellaneous
·
Follow-up with Paul Proulx from the January Board meeting
Ms. Thoits:
We talked with the Town’s attorney last Wednesday night, and again he
reiterated that we cannot hear an appeal. In
his letter, Don Gartrell writes:
The powers of a zoning board of adjustment with regard to enforcement of
the provisions of the Zoning Ordinance are quite limited and specific.
RSA 674:33, I(a), empowers the ZBA to hear and decide appeals “if it is
alleged there is error in any order, requirement, decision or determination made
by an administrative official in the enforcement of any zoning ordinance” duly
adopted. This power is coupled with
the powers of a ZBA to grant variances and special exceptions from the
provisions of the Zoning Ordinance in appropriate cases, and is generally
applied to administrative decisions, based upon the Ordinance, which precede a
development, such as the denial of a building permit.
So he says that we can’t hear
it.
Mr. Proulx:
I take exception with that. The
point being that they did not do it as an enforcement – they changed the
wording of the variance.
Ms. Hinnendael:
Let me read the end of this, just so you know.
If he, or anyone else materially affected by their decision desires to
challenge it, the appropriate recourse is to the Merrimack County Superior
Court, for the Board of Adjustment, in our opinion, is without jurisdiction to
decide the complaints as presented.
Ms. Hinnendael:
And that’s from our legal counsel, and we need to listen to him.
Mr. Proulx:
This is one of the problems I have, without being able to discuss
anything – I’m not looking for a decision, but to discuss anything – on a
one-sided… Without being able to
present anything. That’s like
getting a lynching without a trial.
Ms. Mical:
We gave him the paperwork that you had given to us.
Ms. Thoits:
Right.
Ms. Mical:
And the letter that the Board of Selectmen had written to whomever they
had written it to.
Mr. Proulx:
Does this go under 676:5?
Ms. Thoits:
We gave him every letter that you gave us.
Ms. Joss:
Why can’t you go to the court?
Mr. Proulx:
Will you loan me $10,000?
Ms. Joss:
No, it’s not my problem.
Mr. Proulx:
That’s what I’m saying. It
would cost me about $10,000 to go to court, and he’s getting away with
something down there that the Selectmen are letting him do.
This has been to court already. The
decisions were made.
Ms. Mical:
Right, and therefore what you are saying…
Ms. Joss:
You can go to court and…
Ms. Mical:
And they’ll uphold their decisions.
Mr. Proulx:
However, the argument under this appeal to the Zoning Board of Appeals,
not the Zoning Board of Adjustment – and it’s an appeal of an administrative
decision.
Ms. Thoits:
Right. But we can only hear
appeals of decisions that apply to the zoning ordinance.
Mr. Proulx:
And they do.
Ms. Mical:
No they don’t. It applies
to the Site Plan.
Mr. Proulx:
No, the court upheld the fact that the Zoning Board made a decision for a
variance for the use of that piece of property.
It’s a variance for a use. The
court found that the ZBA had all the facts before it.
That’s what the court makes their decision on.
And they specifically state – the court does – that their facts –
the Zoning Board’s facts – are based upon the Site Plan.
Ms. Mical:
But we can only act on zoning ordinances.
That’s why we can’t hear it.
Mr. Proulx:
No. The facts at that point
become part of the variance. The
court does the same thing when they…
Ms. Mical:
It doesn’t matter.
Mr. Proulx:
Yes it does.
Ms. Mical:
We can only hear it if it concerns an ordinance.
Mr. Proulx:
It is an ordinance.
Ms. Mical:
No it isn’t. It’s a
decision from the courts and it’s also a site plan.
Mr. Proulx:
It’s a decision by the Selectmen.
Ms. Hinnendael:
Zoning Boards do not enforce the site plan.
Ms. Thoits:
And we have no jurisdiction over that.
Mr. Proulx:
The Selectmen changed the variance.
Ms. Thoits:
And we have no jurisdiction over what the Selectmen do.
Ms. Joss:
Would it help to speak with Don Gartrell?
Ms. Mical:
No, that would be a conflict of interest.
Ms. Hinnendael:
No, but I would say – if you want to send another letter, we can have
Sissy run it by Don again. If you
would explain what you want to explain to us, send it to Sissy and she can get
it to Don and he can say what he has to say.
Ms. Mical:
The only thing is that he has put this before Don three times:
He has done it verbally, he’s done it in writing and he’s done it in
person. And Don has not changed his
mind.
Ms. Hinnendael:
We have to listen to our town attorney – you understand that?
Mr. Proulx:
If he’s got all the facts, yes; I agree with you.
Ms. Thoits: What facts do you
think he doesn’t have?
Mr. Proulx:
How do I get all the facts to him? I
can’t write a volume.
Ms. Thoits:
But we took everything you gave us to him.
Mr. Proulx:
I can’t write volumes of something.
Ms. Joss:
He can’t make a different decision – he made a decision on all that
he had, Paul. If there’s something
that he’s lacking then it is in your best interest to put that in writing.
Ms. Hinnendael:
We gave him all that you had given us in writing.
Mr. Klinedinst:
If he starts getting information from you and from us, then it gets to be
before the judge – it gets to be a lawsuit, then it becomes a conflict.
Mr. Proulx:
But there’s already a conflict on the people that are making the
judgments on these things.
Mr. Klinedinst:
He’s probably drawn the line in the sand, so to speak.
Mr. Proulx:
The only thing I’d like to bring up to the particular Board is that
there have been changes to the variance. You
say no. I disagree with you.
The ZBA based their facts – the site plan was already in place before
the ZBA made their decision. It’s
backwards from what it normally would be.
Ms. Mical:
No, we heard that case before it went to the Planning Board.
Mr. Proulx:
No you did not. The decision
of the Planning Board and the decision of the court came a year before the
Zoning Board made their first final presentation.
Ms. Mical:
He took us to court the first…
Mr. Proulx:
Do you want the records? Do
you want the records?
Ms. Mical:
He took the Zoning Board to court. The
court remanded it back to us. We did
it again…
Mr. Proulx:
Why are you supporting Brayshaw?
Ms. Mical:
I’m not.
Mr. Proulx:
Bull.
Ms. Mical:
Because I still think that if you would take it to court, you’d win
probably.
Ms. Thoits:
Undoubtedly he would win.
Mr. Proulx:
Yes, I would win. But it
isn’t right for a citizen to have to do that. What
I started to say was that theses Selectmen changed the variance of this.
They changed it and in the court case itself…
One of the court cases has to do with the buffer zone, which they say now
that they are allowing Mr. Brayshaw to negotiate a buffer.
The Selectmen are doing this. They
have no right to change a variance. The
only people that have the right to change a variance are the Zoning Board.
Ms. Mical:
No, we don’t have a right to change a variance.
The only right to change a variance is if something came back to us.
Mr. Proulx:
That’s exactly what I’m saying. They’re
changing it without anyone coming to the board to change it.
Mr. Klinedinst:
So you’re saying that the illegal act is being done by the Selectmen?
Mr. Proulx:
Absolutely.
Mr. Klinedinst:
Don Gartrell says that if that’s the way you feel, then that’s what
you have to take before the judge.
Ms. Hinnendael:
Go to the Attorney General’s office.
Ms. Mical:
Yes, and that would be free.
Mr. Proulx:
I’ve been down there. They
started looking through books and they couldn’t find anything – I couldn’t
get past the first door. That’s
the problem.
Ms. Mical:
You couldn’t get past the first door of the Attorney General’s
office?
Mr. Proulx:
That’s right. Because they
were going through books and books and books and saying, “How does this
pertain to” something.
Ms. Mical:
OK.
Mr. Proulx:
They don’t have the information in their books.
Again, it’s going to take me to get a lawyer and do whatever.
I told you before that I went to a lawyer, and the retainer is $5,000.
That’s the retainer. That
isn’t right for a citizen in the Town of
Ms. Joss:
I agree with you, Paul. But I
think you come to us hoping that we can solve it, and we never will.
Don’t you think that if you did go to a lawyer that you would win?
Mr. Proulx:
Under the RSA’s there is… I’m
sorry – I disagree. I will take
another lawyer to talk to Don. But
under the RSA 676:5 and proceeding on from there, that is the appeal process
from there with an administrative decision, and that’s what that was.
And it comes back to the Zoning Board of Appeals, which are the Zoning
Board of Appeals…
Ms. Hinnendael:
But we’ve been advised by counsel not to hear this anymore.
Mr. Proulx:
I realize that, but this is what I’m saying – this is what the
problem is. But anyhow, this is the
variance that we’re talking about, with the evergreen fencing.
Under the site plan, that’s a Zoning Board fourth stipulation.
Ms. Mical:
We did put a stipulation on it, on the variance.
Mr. Proulx:
Right, under the site plan which says…
Ms. Mical:
No, we didn’t do it on the site plan.
We believe we did stipulations and we believe that there are four, but I
couldn’t tell you.
Mr. Proulx:
This is a court order, under the site plan…
Ms. Mical:
That’s fine. The thing went
to court three different times.
Mr. Proulx:
Yes, it did.
Ms. Hinnendael:
And the Selectmen…
Mr. Proulx:
And the Selectmen are still living up to it.
Ms. Joss:
It seems to me…
Ms. Hinnendael:
Well, you went to the Selectmen. Don
has told us not to hear this case.
Ms. Thoits:
He says we don’t have the authority.
Ms. Hinnendael:
So you either try…
Mr. Proulx:
He’s afraid of litigation.
Ms. Hinnendael:
Well either try again with the Selectmen or all we can say is go to
court. I mean, there’s nothing
else we can say.
Mr. Proulx:
I can’t… How do I get
past the Selectmen with a conflict of interest?
Ms. Thoits:
It’s been this long; wait until after March.
Mr. Proulx:
He’s still going to be on the board – no one else is running against
him.
Ms. Thoits:
But there are going to be two other ones.
There are gong to be three Selectmen, not just one.
Mr. Proulx:
I thank you all. I can
appreciate what you’re working with, and I hope that you can appreciate where
I’m coming from.
Ms. Joss:
I can, and I think…
Mr. Proulx:
As a private citizen, I don’t think…
Ms. Thoits:
I agree with you that it’s bad, but he told us that we cannot hear it
– that we do not have the authority to hear it.
Mr. Proulx:
Again, that would be a case in court by itself.
Mr. Thoits:
Just for curiosity…
Mr. Proulx:
It’s under that process. I would like to show you one thing.
This is an interesting piece of paper, and it’s exactly what Mr.
Brayshaw thinks of this Board. And
that’s Mr. Gartrell’s decision from back then.
And what you’re telling me now is that he’s changing his mind.
[He presented a document to the Board – the Secretary did not see the
document].
Ms. Hinnendael:
Are these extra copies?
Mr. Proulx:
Would you like to keep that?
Ms. Hinnendael:
Yes, because I have to go.
Mr. Proulx:
You weren’t under Brayshaw.
Ms. Hinnendael:
I came in as alternate. I was
an alternate for the last of the case.
Ms. Thoits:
[after reading] That’s an interesting statement.
Selectman Brayshaw commented that the conditions that were placed on
them were from an inexperienced Zoning Board.
Mr. Proulx:
And he had no intentions of ever complying with those stipulations.
Ms. Thoits:
The Zoning Board…
Mr. Proulx:
Was you.
Ms. Thoits:
The Zoning Board was on there for a long time before this case.
Ms. Hinnendael:
That’s right. Ted Young was
the Chairman. John Dabuliewicz, Tom
Stiles…
Ms. Thoits:
Tom Stiles had been on it for years.
Ms. Mical:
It was said to them that by simply filing that site plan, that is their
agreement to all of the stipulations.
Mr. Proulx:
I have another one by attorney Donovan, that they would live by all of
those stipulations and all of those limitations.
Ms. Hinnendael:
But we’re not the enforcers.
Mr. Proulx:
The enforcers are corrupt.
Ms. Mical:
Then vote them out of office.
Mr. Proulx:
But isn’t that interesting?
Ms. Thoits:
Yes, it is interesting.
VII. Adjourn
A motion
was made and seconded to adjourn. The
motion passed. The meeting was
adjourned at
Minutes
approved: March 16, 2005