Zoning Board Meeting Minutes -- 4/09/08

Zoning Board of Adjustment

Warner, NH

Meeting Minutes of April 9, 2008

Members Present: Martha Thoits, Chair, Dennis Barnard, Mike Holt, Janice Loz, and Alternate Gordon Nolen (Sitting and Voting for Eric Rodgers). (Jean Lightfoot recording)

Not present: Eric Rodgers, Alternate Rick Davies and Alternate Ted Young.

Ms. Thoits opened the meeting at 7:00 pm. The roll call was taken. She welcomed Gordon Nolen as the new Alternate Member and Janice Loz and Mike Holt as the new full members of the Board. She said there is a need for one more alternate member.

1. CONSULTATION

Applicant: Ronald Bourcier

Property Location: East Sutton Road, Warner, NH, Map 17, Lot 4-6, R-2 zoning district.

Consultation about possibility of obtaining an area variance for Article III, Definitions in regard to “buildable area.”

Ms. Thoits recognized Ronald Bourcier and Bethany Bourcier and asked them to explain what it is that they want to do. Mr. Bourcier said they were there to consult with the Board on what he believes would be an area variance. He provided a set of maps showing the lot he was talking about at 31 East Sutton Road. He explained that the lot was a result of the subdivision of lot 4 on Map 17 some years ago. He said that Lot 4-6 has about 6 acres. There is a brook that runs through the lot and a woods road. He had test pit data from the previous subdivision and he said it showed it was sufficient for a subsurface disposal system. He explained that the original plan for the lot was to have a house in the lower section nearest East Sutton Road. When they bought the property, he said they secured a dredge and fill permit to fill in and cross the wetlands so they could build their house further up on the hill and on the other side of the lot. That was done nearly 12 years ago. He said that he believes they can subdivide the lot and come up with 2 acres of buildable land that would be contiguous, but the lot would be odd-shaped. He said they would also be able to subdivide and have two buildable acres, but they would not be contiguous and this would have a more square sided lot. He said what they would like is to see if the Zoning Board would at least state that they think an area variance would be likely before he applies for it, so the subdivision would be possible, even if the two acres were not contiguous.

Ms. Thoits asked if by subdividing with the odd-shaped lot, the two acres would still not be contiguous. Mr. Bourcier said they would be contiguous, but the property line would not be straight. He added that the option with a straight property line would have an acre in the front and an acre beyond the wetland area, so they would not be contiguous. He said the lot was approved before the “contiguous” acres requirement was added to the Zoning Ordinance, so the originally- planned house site in the front of the lot was only about an acre and a half. Mr. Holt asked where the house was and clarified where the two acres for each option would be.

Mr. Bourcier asked if his proposal would be an area variance or a waiver. Ms. Thoits said it would be an area variance because the two acres would not be contiguous. She asked the Board Members if they thought he needed to put in an area variance request. She asked if the word “contiguous” was in the ordinance when the subdivision was approved because the original plan was for the house to be in less than two contiguous acres. Barbara Mackey said that it was not in the Zoning Ordinance at the time, which was 14 years ago. Ms. Thoits said, then, that since it was subdivided, there was an amendment to the Zoning Ordinance which required that the two acres had to be contiguous and it would not be allowable under today’s Zoning Ordinance. She asked what the goal for the plan is. Ms. Bourcier said the goal was to create a lot where their daughter could build a house if she wanted to. Ms. Thoits said that they would need to go to the Planning Board for the subdivision, but would need the Zoning Board’s approval of the area variance before applying for the subdivision.

Ms. Thoits said that if Mr. Bourcier were to put in for an area variance, it does not mean that it would be granted. She said he needs to understand that the Board would have to closely study the request and then come to a conclusion. She said if the variance request is put in, there is a chance it would be denied.

Mr. Holt asked if there was a hardship. Ms. Thoits said that is what would have to be decided if the variance request were submitted. She said the fact that the property was originally divided before the Zoning change might be a hardship, but that would have to be decided after having studied it. She added the hardship would be the most difficult thing for Mr. Bourcier to prove. Mr. Bourcier said he was hoping to get a consensus from the Board that it might be approved. Ms. Thoits said that the Board does not have enough information to give him a consensus on what its decision would be. He continued to say that he believed that a subdivision could be made using the irregular lot shape. There was further discussion between Mr. Bourcier and the Board about whether he should ask for a variance or a waiver. Ms. Thoits said it would be a variance and not a waiver. Ms. Loz said it was hard to give him any advice since she did not see all the maps beforehand, however, she recognized that no decision was to be made tonight. Ms. Thoits said he still would have to provide the more detailed information. Mr. Bourcier asked if he could come with a variance request without having to do a survey, knowing that he would have to have one for the Planning Board for the subdivision. Ms. Thoits said it would give the Zoning Board more information on which to base their decision if he had the survey at the time of the variance request because it would help his cause. He said he understood and said that the old subdivision plan had a lot of the information which he would get from the County Registry. Ms. Thoits said he had to have better defined documents when he comes for the variance request. This would be submitted with the application. Ms. Loz asked how buildable the lot is. Ms. Bourcier said it is very flat in the area where the plan is to build and it is away from the wet area.

Mr. Richard Cook reminded Ms. Thoits that the term “contiguous” was removed from the Ordinance. She told Mr. Bourcier that, given this, he does not need a variance and he only needs to go to the Planning Board for the subdivision. He thanked them and departed.

2. CONSULTATION

Applicant: Bethany Retreat, Joanne E. Engquist

Agent: David Miller, Robert Olson & Associates, Architects

Property Location: Retreat Road, Warner, NH, Map 13, Lot 30-2, zoning districts R-3 and OC-1

Consultation about proposal for construction of Bethany Retreat camp on property before purchase

Ms. Thoits recognized David Miller who introduced Joanne Engquist and Robert Olson. Ms. Thoits reminded the audience that this is a meeting of the Zoning Board and not a public hearing at which they may participate. She said if an application is submitted, there will be a public hearing on the application. A member of the audience asked for the participants to speak up because he was not able to hear them. Mr. Miller said they were here to seek guidance and information for a proposal for land that is currently owned by Peter and Elizabeth Lovejoy, specifically, Map 13, Lot 30-2. He said it has frontage on Retreat Road and is north of Davis Brook. He said, in addition to the proposal plans, they have the original subdivision plans which were approved last fall by the Planning Board. He said they want to explain the mission of the retreat and what it would mean for the proposed use of the parcel of land. He said the land consists of 2 zoning districts: the frontage on Retreat Road is in R-3 and the interior portion is in OC-1.

Ms. Engquist began the description of the plans for the retreat. She said she was not aware of any other place in the area that has a retreat center of the type envisioned. She continued, saying that she was not attempting to build a large facility that will have many people coming and going and a high volume use. She said her subtitle for Bethany Retreat is “Sourcing a Common Life,” inviting people to come to this quiet place. She said that she discovered and fell in love with the Town of Warner a while back. She said there is something about the character of the town that seems particularly useful as a place where she could gather mostly leaders of religious organizations, perhaps members of churches, people who work especially with youth and young adults, to come apart into a space that provides a gateway to the land and an opportunity to “return to the common.” She said that when she served a Lutheran parish in Maine, she honed her feeling about the value of “living light on the land.” She said her hope was to build a center where usually groups of 8-10 people in the course of a week or two weeks would come in, have some time to rest, go out and enjoy the land, and to walk. She noted that there is a planned parking area off of Retreat Road. She said that she hoped to be a good neighbor by allowing people to come and walk the land without having to park on the road. She said they have planned places for some platform tents and a couple of 4-season cabins where people, like artists and writers, might come to retreat with less programming.

Ms. Thoits asked where the cabins are on the plans. Ms. Engquist said they are on the second page. Ms. Thoits asked what the acreage of the lot is. Mr. Miller said it is 51.3 acres. He explained that the approved subdivision plan is on two sheets and is on the corner of Newmarket and Retreat Roads. He said they had used the subdivision plan to prepare their plans for the retreat. He said the frontage area is 395 feet. He indicated the parking area at the bottom of the hill and an access driveway/walkway going up to the retreat building, reception, a small chapel, a dormitory and a caretaker’s building with a barn on the outside for maintenance equipment. He continued to say there are numerous lumbering roads and trails that go through the interior part of the property behind the planned retreat building. He said they have tried to approximate on the plans the current trail system. There is an ever-ascending route up to the area where the cabins and tent platforms would be located. He said the cabins would be two bedrooms on either side of a common room and these would be the artist retreat cabins. Then, between them, he said there are three platform tent sites. The facilities would be a composting toilet. He said that the R-3 zoning district ends 500 feet from Retreat Road and the proposed retreat building proper and its access drive and parking are all within the R-3 zoning district. The interior walkways and cabins and tents are proposed in the OC-1 district.

Mr. Miller continued that it is their interpretation that the retreat building would be permissible by zoning right. But, they are here to ask the Zoning Board for their agreement on this. He said they thought a special permit would be needed for either the cabins or the tent platforms in the OC-1 district. He said they are seeking guidance from the Zoning Board on these issues.

He showed a larger plan of the retreat building site, indicating the parking area and the driveway/walkway up from the parking area. He said the buildings would be located on a relatively level portion of the site. He showed a picture showing the proposed building site looking back toward Retreat Road with a measuring tape in it.

Ms. Thoits asked how people were going to get to the cabins and tent sites from the parking area. Mr. Miller said there would be an improved trail, not a road, so it might be an all-terrain vehicle that would be using the trail. He said they are not proposing to cut a new trail, just to use the trail that is already there. He said the improvements to the trail would be the normal erosion and storm water runoff that takes place along trails. Mr. Holt asked if it were a class VI road. He said it is very rough out there right now. He asked what the significance was of the distance being measured by the tape in the picture. Mr. Miller said they were measuring for the 500 feet to get from Retreat Road to the end of the R-3 zoning district. Mr. Holt asked what the purpose of the parking lot was. Mr. Miller said the objective is to get the visitors in off the roadway at the base of the hillside so there is no parking on the shoulders or at the side of the road. Mr. Holt asked how supplies, suitcases, backpacks, etc. are to get up to the buildings. Mr. Miller said there would be a driveway with a turnaround area and a handicapped parking space at the top. Bags and materials, deliveries to the kitchen or to the maintenance would come up a driveway that is widened so a vehicle could pull over. Mr. Holt asked how trailer trucks could get up there to deliver supplies. He asked what the dormitory would house. Ms. Engquist said that it is anticipated that it will be built in phases. The dormitory within the retreat building would be the most usual space for program guests, representing the 6-10 people mentioned earlier who would come in for a period of a week or two. She said it is anticipated that most of those people would be able to bring their own things up to the building. She said there might be an electric vehicle that could move people back up if they could not walk up. She continued that this follows the notion of getting people “back to land.” She said they do not want to disturb the town’s space, as well, but want to have the access that allows people to come by foot into the land. She said that “putting the foot on the path” is different from walking in the city. Mr. Holt said it is quite steep. Mr. Miller said there would be two ways up to the retreat house – one by vehicle to the turnaround and the other is to walk. Mr. Holt said he was trying to understand how all the cars would be accommodated. Ms. Thoits asked what the objection is to the cars being in the parking lot. Mr. Holt said that what is said now could change. He asked Mr. Olson if they had done retreats before. Mr. Olson said they had done a lot of work with religious communities. He said the particular blend for this retreat is new to them.

Mr. Holt asked if it would be non-profit. Ms. Engquist said yes. She added that she had applied for the 501(c)(3) status, but the papers had been lost and have been resubmitted. She said that the plan to keep the size limited is essential to the concept itself, so to increase the size would defeat the purpose of the retreat. She said the plans do include some common rooms that are larger, but the thought was that perhaps in partnership with someone else or a town church, there might be the possibility of having concerts or other gatherings that would highlight the community, as well. She said the plan would not include increasing the overnight guest capacity, because they are trying to limit the size of that. Mr. Holt said the road is very narrow and he said he cannot see how trucks are going to be moved up through there, bringing supplies, etc.

Ms. Loz asked about emergency access. She said she had tried to drive down the road today and could not because it’s quite wet and narrow. She also noted there is a covered bridge on Newmarket Road, which she wondered if the fire equipment could go through. Mr. Holt said he saw a ten-wheeler coming down and it took up most of the road. He asked if the road is class VI or V. Mr. Cook said it is Class V, a town-maintained road. Ms. Thoits said that trucks cannot go over the covered bridge. She said she thought they have to go down on Bean Road. She added that this time of year there are weight restrictions on the roads because it’s spring. Ms. Loz said that getting out to the cabins would be a problem, as well. Ms. Engquist said that if emergency access to the cabins is a big concern, that part of the plan could be removed. She said she understood that the structure would have to meet the codes for emergency vehicles to come. She added that, in terms of supplies, she did not think the large vehicles asked about by Mr. Holt would be necessary.

Mr. Nolen asked what size the dormitory is envisioned to be. Mr. Miller said there are 8 single bedrooms with shared baths and a common room at the end, with 4 rooms on each floor. He said it is spread out because of the retreat concept of “coming together” and “being apart for reflection.” Ms. Loz asked if there were any worship spaces in the OC-1 district. Ms. Engquist said no. She added that the only reason for the cabins and tent sites would be for people who want to come for a retreat and could come down into the retreat building if they choose. Mr. Holt asked if there would be staff 24-7 and 12 months a year. Ms. Engquist said yes, anytime it is open. She said she could see it might be possible that it would close if it were determined that they could not safely operate during a particular month. She said her hope is that she would be the caretaker and living in the caretaker’s home. She said the chapel is small and the intent is not to create a church itself. She said her intention would be to go into town with many others to a church in town. She said her intent is not to make a church, but to make a space where worship may happen.

Ms. Loz asked about the zoning related to multiple structures on one lot. Ms. Thoits said they can have more than one structure, but not two residences. She said it appears that the retreat building is one contiguous building with a separate storage building that would be allowed. Ms. Loz said she was thinking more of the cabins in the OC-1 district. Ms. Thoits agreed that might be an issue. Mr. Barnard said there is no way a fire truck could get to the cabins. Ms. Thoits agreed and said the fire chief would need to be asked about that. There was further discussion about heating and power for the cabins.

Ms. Loz asked if they planned on renting out the facility to other organizations. Ms. Engquist said that the application to the State said their intention was to offer the facility on a fee basis, but not to turn over the space to other organizations. Ms. Thoits asked if Ms. Loz would ask the questions posed in a letter to the Board by Mr. Robert Gainor and Ms. Jennifer Mitchell. Ms. Loz said the letter posed questions that the Board found to be useful and proceeded to ask the questions that had not already been posed to Ms. Engquist. She asked if there is a cap as to how many people will be staying at the retreat at one time, both overnight and during the day. Ms. Engquist said yes and added that they will need more information from Planning and Zoning in terms of the sites that they can build. However, she said the approximation that she has discussed so far is accurate. She said she thought there had been discussion about creating a facility that could accommodate 30 people for a day use, but not for overnight. Ms. Loz asked how different it would be for overnight. Ms. Engquist replied it would be the 8 people plus the people in the cabins or tent sites. She said, for example, if they had a speaker or program that they had heard people from around town might be interested in, there might be a public event at the end of the gathering that would accommodate more than those taking part in the retreat program. She said there might be 6 or so of those during the year where people could come in, but the principal idea is not to say that retreat programming is having alternate housing in the campsite or cabin. It is phasing that as a possibility, but the fire and emergency concerns may be limiting that as a possibility. Mr. Miller added that the size of the lot is what offers the opportunity for other uses beyond just the retreat building.

Ms. Loz asked how many parking spaces would be required and what the traffic impact would be. Mr. Miller said they don’t know yet. It would depend on what the Planning Board and other town officials decided. Ms. Thoits said if they get to the Planning Board stage, the Planning Board will tell them how many spaces they have to have. Ms. Loz asked if they were planning on building a trail network and if so, how extensive it would be. Mr. Miller said they are not building a trail network. They are planning on using the trail network that is currently there. Finally, she asked if they have any plans for future expansion. Ms. Engquist said no and added that that was why they presented both of the pieces now, even though the principal piece of interest is the retreat building in R-3.

Ms. Thoits asked what the side building is. Mr. Miller said it’s a storage building for tools. She asked if there were any other questions or thoughts. There were none.

Mr. Miller asked if their understanding of the Zoning Ordinance is correct that the retreat building in its location as shown in R-3 would be an activity that would be permitted by the Zoning Ordinance. Secondly, he said it was their understanding that if the idea of tents or cabins were to go ahead, they would require a special permit because they’re in OC-1. Ms. Thoits said they would have to go to the Planning Board for the front part (R-3). She agreed that the only thing that the Zoning Board would be concerned with would be the cabins and tent sites. She said the Board’s biggest concern about those sites right now would be the fire and safety issues. She said it would have to go before the fire chief. Ms. Engquist said they would not want to do it if it wasn’t a safe plan. Ms. Thoits suggested that they talk with Mr. Brown and show him the plan because that is a big issue. She said she thought it would not be such an issue for the police as it would be for the fire department. She said that without the fire chief’s approval, she could see no way that the Zoning Board could begin to accept the plan for the cabins and tent sites. Ms. Engquist asked if they talk with him and he says it really isn’t a safe plan, and they don’t proceed with that, is it Ms. Thoits’ advice that they go directly to the Planning Board for the R-3 section. Ms. Thoits said yes, since there is no setback or road frontage variance required based on the plans presented. She reiterated that for the cabins and tent sites in OC-1 they would need to come to the Zoning Board for a variance. Mr. Olson asked if it were a traditional summer camp with no heating, and was just literally tents, would that be covered under a special permit, with no open fires and no heating. Ms. Loz said you still have multiple structures in OC-1 and that’s not permitted. There was further discussion about what parts of the ordinance applies.

Ms. Thoits quoted from the regulations, “Educational purposes, which are religious, sectarian, denominational or public,” require a special exception. So, she said, a special exception is required for the retreat. Mr. Miller asked if it would be considered to be a religious purpose under number 1. Ms. Engquist said her understanding was that the religious school is what is meant by number 2 which was quoted by Ms. Thoits. She said she thinks that if the State grants the 501(c)(3) status, it will be a church or other religious purposes. Ms. Thoits agreed and said they would not be teaching things, so it would come under the “other religious purposes.” Ms. Loz asked if all activities would have a religious tone to them. Ms. Engquist said no, but there are many activities that take place in a church that don’t have a religious tone, like a birthday party, perhaps. She said the primary business must be what has been actually authorized by the State.

Ms. Engquist asked if it is the Zoning Board’s opinion that the retreat comes under number 1, and therefore, for the retreat part only in R-3, they do not need a decision from the Zoning Board because it is permitted. Ms. Thoits said it is her opinion that it is permitted and asked Mr. Cook if he disagreed. Mr. Cook said he could not speak for the Board of Selectmen, but he did agree with Ms. Thoits’ interpretation. Ms. Thoits said they should go to the Planning Board about the retreat building and for the OC-1, she said to talk to Mr. Brown and get his approval before coming to the Zoning Board for the approval of the cabins and tent sites. She said if he does not approve the plan, she is quite certain that the Zoning Board would not accept it because of the safety issues.

Mr. Miller thanked the Board and they departed.

3. ELECTION OF OFFICERS

Ms. Thoits asked for nominations for Chairman and Vice Chairman. Mr. Holt NOMINATED Martha Thoits to be Chairman. Mr. Barnard Seconded. Ms. Thoits was elected unanimously to be Chairman.

Ms. Loz NOMINATED Dennis Barnard to be Vice Chairman. Mr. Holt Seconded. Mr. Barnard was elected unanimously to be Vice Chairman.

4. REVIEW OF RULES OF PROCEDURE

Ms. Thoits asked if anyone found anything in the procedures that needed to be changed. She said they were completed in 2005 and were amended in 2006. Ms. Loz asked about Mr. Davies suggestions for changes that he had written. Ms. Thoits said that Mr. Davies had raised an issue over what constituted a quorum and she said what he had quoted does not apply to a quorum for the meeting. She said the quorum is determined by the number of board members you have. She said that Mr. Davies had said he likes the idea of 4 being a quorum. She asked if anyone thought the 4 needed to be changed. The board members said no. She then said Mr. Davies had asked in his letter what happens if both the Chairman and Vice Chairman are absent. She said she didn’t think there was a need to have anything in the procedures about that. It was agreed that the meeting would be cancelled and postponed until the next month or appoint a chairman.

Mr. Holt asked about soliciting candidates to serve on the Board. Ms. Thoits said she thinks that it is up to the Selectmen to appoint. But, it is all right for a member to ask someone if they’ve ever thought of serving on the Zoning Board. She encouraged the members to say something to someone whom they think might be good on the Zoning Board. She said to tell them to go to the Selectmen’s Office or on the website and get an application and submit it to the Selectmen. He said he was sure that there must be a number of people in Warner who would like to participate but don’t know how to get involved. Ms. Thoits asked Martha Mical if she had any ideas on how to reach out to people as Mr. Holt suggested. Ms. Mical suggested putting something in the town newsletter, the next issue of which is due out in June and is mailed to everyone. There was a discussion about other outlets for publicizing the need for volunteers to serve on the Zoning Board.

Mr. Holt MOVED to accept the procedures as adopted on June 8, 2005, for another year. Mr. Barnard Seconded. The motion was PASSED unanimously.

5. MINUTES

Ms. Thoits asked if the Board Members had any changes to the March 19, 2008, minutes.

Mr. Holt MOVED to accept the March 19, 2008, minutes. Ms. Loz Seconded. The motion was PASSED unanimously.

6. COMMUNICATIONS

Ms. Thoits said there is a meeting in May on “Current Issues in Storm Water Regulation in New Hampshire” and asked if anyone was interested in attending. No one said they wanted to go.

She asked Mr. Nolen if he was interested in going to the April 26 Land Use Conference. Mr. Nolen said he would not be available on that day, so he cannot go.

Mr. Nolen MOVED to adjourn. Mr. Holt Seconded. The motion PASSED unanimously. The meeting was adjourned at 8:45 pm.