Roll Call Eric Rodgers will be voting.

February 28, 2007 – Ms. Hinnendael asked and the Board agreed to hold off on approving the minutes to re-listen to the recording and confirm a decision regarding Dunne.

March 12, 2007 – minutes of site walk at Route 103 and Melvin Mills Road, map 16, lot 56, MOVED, SECOND and unanimously APPROVED (Eric Rodgers abstained).

Applicant: Sugar River Savings Bank, 2 West Main St., Warner, NH

Property Location: 2 West Main St., Warner, NH, Map 31-Lot 26, B-1 zoning district

Proposed Use: addition to the existing bank for a community room and safe deposit box area with a safe deposit box room.

Variance for: Article X, C.2. yard requirements – requesting variance of 20.1’ from the 30’ edge of public right of way requirement; current building is 16’ from public right of way.

Eric Rodgers recused himself from voting as he is an abutter.

Acting Chair Mical: Voting members will be Joanne Hinnendael and Dennis Barnard, Ted Young, Ken Klinedinst and myself.

Ginger Marsh representing Sugar River Savings Bank presented the proposed additions inside the building and the reasons they are requesting a variance. Drawings dated January 9, 2007 by Lauer Architects were reviewed. Ms. Marsh pointed out where they are requesting the variance; the driveway will remain the same; the drive-up will remain the same; they propose expanding into the existing green, the parking lot will not change. The additional area is required in order to add a community room that will be available after hours. This will include outside access and access to the toilet facilities. The safe deposit boxes will be relocated and a private office space is part of the remodel/addition.

The requested variance is to allow expansion of the building to be within 9.9’ of the road versus the current 16’ – zoning regulations call for 30’.

Chair Mical read into the record a letter from Alan Brown, Public Works Director, as follows: I have looked at the proposed plans of Sugar River Savings Bank and have viewed it in reality. I do not have any objections to the addition being on the edge of the right of way which is about 9’6" from the edge of the road.

Ken Klinedinst inquired when the community room will be available to the public. Ms. Marsh responded it will be available by appointment during and after hours. The room will accommodate @ 30 people. No kitchen facilities will be available. The community room will be available as an alternative to meeting at the town hall or Bookends.

Ms. Marsh read into the record their written response to the variance conditions/questions.

A. No diminution in value of surrounding properties would be suffered.

No diminution of surrounding value, the building will be continued to be used as a bank.

B. Granting the variance will not be contrary to the public interest.

It will be to the public’s interest because we will be providing a community room with public access.

C. Denial of the variance would result in unnecessary hardship to the owner seeking it.

It would not allow for new office arrangement in the current building - without the addition the offices inside cannot meet the bank’s needs as it is currently open concept, no privacy.

D. By granting the variance, substantial justice would be done.

We would be providing another meeting room for public use.

E. The use must not be contrary to the spirit of the ordinance.

Due to the fact that it is not in close proximity of the abutters, the addition does not affect the abutters property.

Mr. Young inquired is the building material going to be the same as the rest of the building? Ms. Marsh responded yes. Mr. Young added the proposed addition is actually no closer to the road than the Putnam house was.

Ms. Hinnendael confirmed with Ms. Marsh, the driveway will not change, the access on Kearsarge Mountain Road is one way in.

Chair Mical closed the meeting and opened the public hearing.

Eric Rodgers, an abutter on Main Street, stated he has no objection to the variance.

Chair seeing no additional public comments closed the public hearing and reopened the meeting.

Mr. Barnard stated the requested variance seems reasonable to him. Adding he doesn’t see any hardship or obstacles with this expansion into the area now grassed.

Mr. Klinedinst commented that the meeting room is a good idea – providing another alternative space for meetings.

Ms. Hinnendael asked specifically what is the hardship issue. Chair Mical reread the written response. Ms Marsh added that the physical configuration of the offices is not meeting a need for some private office space or a coupon room. Ms. Hinnendael added that she much prefers the expansion to the idea of going up, which would be their only alternative to meet their office space needs – they are the only bank in town.

Ms. Hinnendael made a MOTION to approve this variance based on the answers to the questions, the approval of the Public Works Director and no abutter objections. Mr. Klinedinst SECOND the motion. No further discussion on the motion. Yes vote will grant the variance, no vote will deny the variance. Mr. Barnard – yes, Mr. Klinedinst – yes, Ms. Hinnendael – yes, Mr. Young – yes. MOTION APPROVED UNANIMUOUSLY.

The next step is to go to the Planning Board. Freeman acknowledged that she will be sending a letter of decision and the next step is to complete a request for a site plan review to come before the Planning Board.

Applicant: Trisha Dunne, 200 Bible Hill Lane, Bradford, NH

Property Location: Route 103 & Melvin Mills Road, Warner, NH, Map 16-Lot 56, R-2 zoning district.

Proposed Use: farm stand

Special Exception for: Table I, Use Regulations, Agricultural, item 2. Year-round farm stand for retail sale of agricultural & farm products in R-2 district.

Chair Mical stated before we go into a public hearing the board needs to make a determination whether the proposed building is a primary or accessory building.

Applicant requested Ms. Hinnendael recused herself, she removed herself from the table. Voting on this will be Ted, Eric, Dennis, Mr. Klinedinst and the Chair.

Points of discussion:

There is no other building on the lot.

The definition of an accessory building is a detached building, the use of which is customarily incidental and subordinate to that to of the principal building, and which is located on the same lot as that occupied by the principal building. (as in the zoning ordinances)

There being no other building on the lot, this structure cannot be considered an accessory building.

R-2 district is residential; a farm stand would be an accessory to a residence if there were one.

Mr. Rodgers made a MOTION to determine that if this is the only building on that lot, it cannot be an accessory building – because of the definition of accessory. Mr. Klinedinst SECOND.

Chair acknowledged Selectman Cook: I am looking at the definition of principle building "a building in which is conducted the principal use of the lot on which it is located" (from the zoning ordinances). Principle use is defined as means the main or primary purpose for which a structure or lot is designed, arranged, or intended, or for which it may be used, occupied or maintained . (from the zoning ordinances). This lot was intended as a residential lot. I don’t believe the intent is that the farm stand is the primary use and a special exception is allowed as an accessory to the primary use. Basically, what you are creating is a commercial lot in a residential district.

Ms. Hinnendael: As Mr. Cook said, this business is intended as the primary use and further this is a nonconforming lot in a residential district. Under Article XV, Non-conforming use, B."A non-conforming lot may be built upon, for residential purposes only, if, at the time of the enactment of this Ordinance… the owner owned no contiguous land…"

Mr. Klinedinst addressing Selectman Cook: In your opinion, if the farms stand was approved and built would that lot remain a residential lot? Mr. Cook responded if the primary use of the lot is residential, than the primary building should not be commercial. That is not the lots intent.

Mr. Young inquired what is the history of that lot. When was it subdivided? The history of this nonconforming lot is not known. Cook and Mical confirmed this is a lot in an R-2 zone, intended for residential use.

Board member inquired how big is the lot. Response @ 1/3 of an acre.

Chair reminded the Board they should determine accessory or primary before going to the special exception. For discussion, the chair reread the zoning definitions of principal and accessory buildings, principal use and accessory use. Mr. Klinedinst: following the definition of principal use of a primary building, the primary use of this building does not conform to what the lot is defined at in R-2. The principal use that lot is intended for is residential – cannot have a principal building on it that is not residential.

Mr. Pletcher: An observation, your definition of principal use does not make reference to the zoning ordinance. The determination of whether its principal use is residential is not defined by the zoning ordinances but by the owner. Mr. Cook disagreed, stating the principal use definition says the lot is intended and I believe the intent of the R-2 zone is to create a residential.

Mr. Klinedinst inquired if there was a precedence anyone was aware of. Mr. Young said the only one he recalled is when an owner purchased an abutting lot and put an accessory building on it. There was also a case where an accessory building was built prior to the residence. Mr. Young inquired what the permanence of this structure is. Response was that this would be a permanent structure.

Mr. Klinedinst suggested that the Board hear from the applicant whether it is intended as permanent and accessory versus primary use.

Thomas Dunne: I thought that was what the special exception was for, so I could put up a farm stand without the residence. Chair responded, in an R-2 district even with a house there, you would need a special exception for a farm stand, temporary or permanent. The issue of accessory or principal use came up during discussion at the last meeting.

Chair: The Use Table in the back of the Zoning Ordinance state what is allowed in an R-2 district? Chair read from the "Agricultural" table, R-2, in the ordinances:

1. Agriculture, aquaculture, horticulture, commercial forestry, and floriculture except a stand for retail sale are permitted.

2. Year-round greenhouse or stand for wholesale and retail sale of agricultural, aquaculture or farm products requires a special exception;

3. Temporary (not to exceed erection or use for a period exceeding three months in any one year) greenhouse or stand for sale of agricultural or farm products raised primarily on the same premises is permitted.

MOTION on the table: If it is the only building on the lot, it cannot be an accessory building. Yes vote it is the principle building, if no it is the accessory building. SECOND. Mr. Barnard – yes, Mr. Klinedinst – yes, Mr. Young – yes to the fact that this building will be the principal building, therefore it now needs a special exception, Mr. Rodgers – yes, Ms. Mical – no. MOTION CARRIED. This farm stand is considered the principal building, use of the lot.

Chair asked the applicant to present his new drawing and case for a special exception.

Mr. Dunne referenced a new drawing (described here by the note taker) depicting a 12’ x 24’ building with off road parking to the right and left of the building; a stump wall, blueberry bushes and semi-dwarf fruit trees, entrance /exit is one way, circular from Mills Road.

Chair Mical read into the record documents received from the applicant. The Belize document was not signed or dated. Letter dated 3/18/07 "I Heidi & Robert Greene do not have a problem with a farm stand being built at the corner of 103 and Mills Rd." These folks are abutters across 103 from the property. Also across 103 from this property, an abutters letter dated 3/19/07: "I Christopher W. Mock do not have a problem with a farm stand being constructed at the corner of Route 103 and Melvin Mills Road". Letter from NE Tele & Tel c/o Verizon New England has no problem as an abutter with a farm stand being built at 103 and Mills Road, Warner, NH. It is signed with no reference to who signed it. Also read into the re-record is a letter from Richard Donovan (was read at the last meeting also). Mr. Donovan’s letter to the ZBA, dated 2/18/07:

"As I will be traveling on business and unable to attend the February 28^th meeting of the ZBA, I would like to share my concern about the proposed special exception application to allow for a farm stand and the year round retail sale of agricultural and farm products in an R-2 zone on Melvin Mills Road. My wife Linda and I own the land across Melvin Mills Road from the lot in question. Obviously, we understand that this is a "lot of record" which allows for a structure.

Having received information about the intended size of the farm stand structure, we feel quite sure that a site visit by the ZBA Board is warranted (to measure setback requirements). If the setback from the neighboring bound is taken into consideration (stone wall) and the setback from Melvin Mills Road is honored, there should not be enough space to allow for the width of the proposed structure. The lot is .3 of an acre and narrows very quickly from north to south. To accommodate parking on the site and to allow for a structure will create such an intensive use of the site as to change the nature of the entrance to Melvin Mills and frankly, the rural nature of our neighborhood.

For anyone who is driving west on Route 103 and turns left into Melvin Mills, one quickly realizes that traffic from Sunapee, heading east, flies over the knoll and arrives at Melvin Mills Road very rapidly. The attraction of a farm stand and last second left-hand turns (often into a setting sun) is a safety factor that DOT might want to consider.

Living in Melvin Mills for the past 35 years we have been fortunate for the protection of R-2 zoning. Frankly, a retail stand directly across from our property looks like a commercial application disguised in agricultural clothing. Why are there no similar uses happening or allowed at the entrances to Roby Road or Waterloo Road? Linda and I are good neighbors and we treasure the rural environment that still exists in our part of Warner. We suggest that the project either be "right-sized" or moved to a more suitable location. Thanks for your attention. – signed Dick Donovan."

Tom Dunne requested to respond to Mr. Donovan’s letter, stating that he did per Mr. Donovan’s request downsize the building.

Chair Mical noted the original drawing the building was 14’ x 28’ now 12’ x 24’. Mr. Dunne received a driveway permit from Alan Brown.

Mr. Dunne: At the site visit I did have it flagged out. The building does meet all the setbacks. After hearing the board’s thoughts at the site visit, regarding parking, I modified the parking and created the one way in – one way out. I am in the process of trying to acquire the lot next door from NE Telephone. The trees that would be cut down are proposed to be replaced with fruit trees.

Chair asked Mr. Dunne to explain the stump wall. He responded that the stumps remaining from cut trees would be lined up forming a wall.

Mr. Dunne reiterated his intent to build a permanent, year-round structure to provide fresh food to the public.

Mr. Klinedinst inquired if the drawing was to scale? Mr. Dunne responded that it is not.

Mr. Klinedinst inquired if the reduction in the size of the building addresses Mr. Donovan’s concern? Chair responded that Mr. Donovan stated he believed that the proposed building would not meet the setbacks (the original size). As staked out on the site walk it was 50’ from Route 103, 50’ from Melvin Mills Road and 35’ from the abutter’s stone wall – which does meet the current setbacks. Chair responded to Mr. Klinedinst’s question where does Mr. Donovan live? – he owns the property across the street and his house is slightly down the road.

Chair closed the meeting and reopened the public hearing – calling for any abutters that wish to speak.

Linda Donovan stated she does not wish to see a commercial venture in this rural, residential area. Further stating her feeling that it would ruin the character; she is very concerned about traffic. Other abutters that have no objection are on the other side of Route 103.

Larry Pletcher: I grow organic produce and the president of Northeast Organic Farm Association – I am speaking for myself not an organization. The master plan in Warner talks about preserving and fostering agricultural uses. Speaking from experience it is very difficult to get people who want to preserve land and actually do some farming. One of the reasons is we are losing infrastructure; we don’t have a Crisenti’s or a place where small growers can take things to be sold. I think this is perfectly consistent with rural use and agricultural use as it gives small growers in Warner and neighboring areas an opportunity to sell their produce and encourage continued agriculture.

Ms. Hinnendael: On the original application, it was stated that he would only cut the required trees to build the structure. At the site walk, Mr. Dunne stated that he would be clearing the entire lot and putting in fruit trees. The cutting changes the application completely, especially in this residential area. I also have strong concerns about safety of people turning off 103 onto Melvin Mills Road. I have no problem with someone having a seasonal farm stand if you have a farm on site. I feel very strongly that this is an inappropriate spot for this commercial venture. Ms. Hinnendael inquired if this passes, will it have to go before the Planning Board for site plan review. Chair Mical responded yes.

Chair acknowledged that this new plan is a change from what was initially presented. Non-residents requesting to speak were denied.

Mr. Cook reiterated his belief that a primary building that is not a residence should be allowed in an R-2 zone.

Jere Henley: I live within a ¼ mile from a farm stand and have not noticed significant traffic; people stop, buy their corn and move on. If the driveway permit was granted, I assume the Highway Department or the State looked at the safety issues before they granted the permit.

Ms. Hinnendael: I believe a driveway permit is granted to allow access to the property, I don’t believe traffic is taken into consideration. Chair Mical commented it is her belief that the Highway Department was aware of the proposed use for the property before the driveway permit was granted; though has not seen it in writing.

Linda Donovan: We have a master plan outlining commercial areas of our town. If this is a commercial venture it should be in one of the commercial areas. What is being proposed to sell on this lot is not grown on this lot – I am not against agricultural. This is commercial and needs to be labeled commercial, not disguised as agricultural.

Chair closed the public hearing and opened the meeting.

Mr. Klinedinst asked Mr. Pletcher how many farm stands are in Warner. Collective response was that there are probably 3 seasonal farm stands.

Chair reiterated Mr. Dunne has applied for a special exception for a year-round, greenhouse or stand for wholesale, retail sale of agricultural, aquacultural, farm products. He did not go for the temporary stand because it reads the products must be raised primarily on the premises. He does not qualify for a temporary farm stand as the products are not grown on site.

Mr. Klinedinst inquired do we have any wholesale farm stands? Board member commented that wholesale implies distribution center. Wholesale brings in an entirely new element, trucks in and out.

Mr. Rodgers: I don’t believe this is a good idea, in part due to the objection by abutters or people who live on that road. We do have commercial districts. There is plenty of open space in the commercial districts that would allow you to do what you want to do. The traffic issue, if the traffic laws are not appropriate they need to be addressed where appropriate. Mr. Klinedinst agreed with Mr. Rodgers thoughts adding putting a commercial stand in a residential lot is not advisable.

Mr. Young: This is not a description of a personal farm stand. He proposed to be open 12 months a year, if he is open year round, goods are being trucked in, this is no longer local farm stand – seasonal or part time may be appropriate to sell locally grown produce. One of the largest farm stands around is Spring Ledge, they close in the winter.

Chair Mical: When Mr. Dunne first applied he did not qualify for a temporary farm stand as noting was being grown on the lot. Mr. Young and Mr. Barnard both suggested a temporary farm stand for produce grown on site would be appropriate.

Mr. Rodgers made a MOTION to deny the special exception for the proposed use due to its commercial/retail nature in an R-2 residential district. SECOND by Mr. Young. Yes will deny the special exception – No will grant the special exception. Board voted unanimously to DENY the special exception.

Chair Mical: Your special exception has been denied, you have 30 days to appeal it. You have the option of coming back with a different request; a temporary farm stand is permitted in an R-2 district for 3 months a year for products raised primarily on the premises. Board member added that the farm stand must be secondary to the primary use of the residence. If you wish to pursue that, you would go directly to the Planning Board for a site plan review. There are minimum building requirements, must have a state approved septic system and meet all required setbacks.

Lloyd Vose of RCS Designs requests an informational meeting regarding the required setbacks for a nonconforming lot. This project is a proposed lot line adjustment toward building a single family home on map/lot 15, 47-5 (Dennis Larocque) with some portion of land from map/lot 15, 46-3 (Norman Larocque).

No one appeared.

Mr. Cook asked the board to clarify a receivership issue. The town owns a lot with a mobile home on it. Working with the estate of the former owner, the question came up when the lot changes hands, does the right to replace the mobile home within the 180 days stay with the owner at the time it was removed, or go with the property. Does the 180 days to replace the mobile home end with the transfer of the property? Removing the mobile home increases the value of the lot.

Ordinance Article XIII D. states in part "A manufactured house lawfully existing as of the effective date of this Section on land outside of a manufactured housing park or subdivision, or a replacement thereof if such housing unit is destroyed by fire or casualty or is in a state of disrepair and its replacement is located on the land within 180 days after such fire or casualty, may be maintained as a non-conforming use, provided that when such use shall be discontinued by the removal of such housing unit for a period in excess of 180 days, the use of such land shall thereafter conform to the provisions of this ordinance."

Board concurred in discussion that if the mobile home is removed, the lot sold, the new owner cannot replace the mobile home as it did not exist when the lot was purchased. Right to replace stays with the party who removed it.

MOTION made by Hinnendael: Direction is, if the Selectman removes the mobile home, because they now own the lot, and the lot is sold, the new owner must comply with the town ordinances for that lot. Yes vote means if the property is sold without a mobile home on it, one cannot be replaced. MOTION PASSED unanimously – the right to replace the mobile home removed due to disrepair stays with the owner that removed it – not transferable.