Open Meeting at 7:00 PM

Roll Call

Approval of the Minutes of the March 8, 2006 Zoning Board of Adjustment Meeting

A motion was made and seconded to approve the minutes of the March 8, 2006 ZBA meeting as corrected. The motion passed by a unanimous vote.

Ms. Mical made motion to move V.S. Warner to the first because the Fire Chief has requested that he be here for the hotel case, and he may have to leave if there is an emergency. The motion was seconded and passed by a unanimous vote.

Ms. Mical made a motion to vote on the Board officers at the end of the meeting. The motion was seconded and passed by a unanimous vote.

V.S, Warner, LLC: Special Exception and Variances

Applicant/Owner: VS Warner, LLC, 269 Hanover St., Hanover, MA 02339

Agent: James P. Bassett, Atty., Orr & Reno, PA, P.O. Box 3550, Concord, NH 03302

Property Location: Routes 103 and North Road, Warner, NH Map 14, Lot 13, Intervale/C-1 zoning district

Proposed Use: Construction a 4-story Hampton Inn hotel

Case #03-06: Special Exception

Special Exception under Article IV, Sec. I of the Town of Warner Zoning Ordinance – Height Regulations.

Case #04-06: Variance

Variance under Article XI, Sec. F of the Zoning Ordinance, maximum gross floor area allowed for shops, restaurants and other retail and service establishments

Case #05-06: Variance

Variance under Article IX, Sec. C-1.1.B of the Zoning Ordinance requiring a structure setback of 80’ from the property line. Applicant seeks a reduction from the 80’ property line setback to approximately 67’, 66’, and 43’ at the corners of the structure.

Jim Bassett with Orr & Reno represented V.S. Warner. Also in attendance were Michael Sullivan, a principle of V.S. Warner and President of Linchris Hotel Corp., Huseyin Sevincgil, an engineer with MHF Design Consultants of Salem, MA and Harry Wheeler, an architect with Group One Partners that has designed over 2500 hotels

Dick Brown, Fire Chief:

· Reviewed the original plans, didn’t like them because of the wood construction.

· Hotel is now proposed to be non-combustible materials, full sprinkler system, and fire alarm system.

· Satisfied with the 4 stories with the changes made in the application.

· Would be willing to waive the 35 foot height constriction.

Mr. Sevincgil presented a color version of the handout to the Board:

· Driveway off of North Road.

· Building location has not changed

· Modifications to parking along the front of the building.

· Brook along the westerly side of the property to retain trees.

· Retaining trees along Route 103 also.

· 98 parking spaces

Mr. Bassett: The change in the location of the driveway is the result of a meeting with representatives of the town and DOT that Mr. Sullivan attended. One concern was the visual impact of the proposed building, and work has been done to address the concerns that were raised.

Mike Sullivan:

· Superimposed picture on the site

· Three pictures: one heading east on Route 103, one is just beyond overpass at I-89 and one from the RAW properties across the road, looking at the right side of the building

· Trees behind McDonalds remain, which block left corner of the building

· The concern about the mechanicals being seen on the roof is unfounded.

· Mr. Wheeler, architect, pointed out that the false roof can be brought to the back of the building so you won’t see anything

Ms. Hinnendael: So this shows all of the parking spaces?

Mr. Sullivan: Yes. Those trees will remain. Some of them are not our trees; they’re not on our land.

Mr. Bassett: There was a discussion at the last meeting about whether or not we needed a special exception for the height restriction; whether we were talking about 43 feet or 75 feet to the top of the cupola. We set forth in our application that the height of the occupied area was 43 feet, so the special exception we would be applying for is for the difference of 35 feet to 43 feet. I don’t know if that is significant to the Board or if the Board had that looked into by counsel after the last meeting. We would need a special exception either way, but we believe it is only for the 8 feet distance rather than up to 75 feet because it is unoccupied and there is an exception in the ordinance about ornamental areas. In regard to the three specific criteria set forth in the ordinance, we address this in our materials:

A. The use requested is identified in this ordinance as one which may be approved by the Board in the district for which the application is made.

Hotels are a permitted use within the Intervale district, and the recent Exit 9 Design Charrette repeatedly identifies a hotel as a desired use, and specifically contemplates a 50,000 sf hotel. See Charrette at 20. Also, the requested use is consistent with the Master Plan, which recommends concentration of commercial development in the areas off of I-89 at Exits 7 and 9.

B. The requested use is essential or desirable to the public convenience or welfare.

The use is permitted in the district, and the Zoning Ordinance specifically states the purpose of the district is to encourage growth of business and commercial establishments. The addition of a hotel to the town will be beneficial to residents and visitors to the region. The participants in Exit 9 Design Charrette public sessions expressed much enthusiasm in response to the proposal or commercial development of a hotel near Exit 9. See Charrette at 17.

C. The requested use will not impair the integrity or character of the district or adjoining districts, nor e detrimental to the health, morals or welfare.

The architectural style of the hotel building and grounds will complement the character of the surrounding districts. The hotel will be operated by an experienced hotel management company, and will contribute to the vitality of the community. Sprinkler systems and other design elements will address fire and safety concerns. MHF Design Consultants, Inc. has previously submitted plans and information regarding fire suppression to Chief Richard Brown of the Warner Fire Department for his review.

D. CO-1 and OR-1 districts only: Not applicable.

Hearing no further comments from the Board at this time, Ms. Thoits closed the Board meeting and opened the Public Hearing for discussion on the height issue only.

Abutters: Janice Loz: Lives behind the police station. Stated concerns of the height of the Hampton Inn and what she would see. Concerned about trees being taken down behind the hotel and the buffer removed. Charrette states that it would be a good place for lower level buildings in that location, and the hotel in another location on the other side of Market Basket.

George Pellettieri: Chairman of the Warner Citizens for Smart Growth. I didn’t know that you were going to divide it up into individual issues, but our letter addresses all of the issues. I’ll limit my comments to the special exception.

· Town is very excited about a hotel and Exit 9/Intervale is an appropriate location for a hotel.

· Will benefit the town and the region

· Special Exception is specific to height. Height restrictions were established not simply for fire control, but have everything to do with the character and scale of buildings in the town.

· If you read our regulations, we take exception to the presentations that propose that the building is only 8 feet above the 35 foot height limit

· Concerned about the roof arrangement. I haven’t seen the new drawings.

· Roof and what is on it will be very visible from the road and the Split Rock subdivision

· Large scale structure is not in keeping with the character of the town.

· The regulations of the Intervale Overlay District specifically expect any structure there to be in keeping with the character of the community of Warner.

Michael Amarol: I have a question about our fire fighting capability and our ability to reach the roof of a structure if a fire broke out from the roof.

Chief Brown: That is addressed with the sprinkler system and non-combustable construction materials. The likelihood of a fire breaking out through the roof is not there if all systems are working properly.

Mr. Wheeler: Due to the grade change, the change allows the roof to be accessed with the ladder trucks.

Chief Brown: Trucks from surrounding towns would be here in 10 minutes in the unlikely event of a fire.

Question from the audience: In the picture you have there, is that sign on the front lit from the inside?

Ms. Thoits: That’s not a question pertaining to the height, sir. And that matter of the signage would be taken up at a later date by the Planning Board. It doesn’t come under our jurisdiction.

Answer: It starts above the 35 foot mark, so I thought it would have to do with the height.

Mr. Bassett said that Mr. Sullivan had some photographs that would address the concerns of one of the abutters at the last meeting.

Mr. Sullivan: After the meeting I met with Janice and her concerns about hat the impact of the hotel would be on her property and view. One tree was taken from the upstairs bedroom looking out down to the site. The purpose of taking these photographs is to give them to the engineer and try to have that picture of the hotel superimposed, and it was very difficult to do. As you can see, the trees there remain, and the engineer was unable to superimpose the hotel. The second picture is from our parcel from the other side of North Road, looking up at the residence, and at the lower left you can see the house. It was very difficult to do because of the trees. The impact is very minimal.

Mr. Bassett asked for an additional copy of the material that Mr. Pellettieri presented to the Board. He was given a copy of the letter. He had a couple of statements addressing the group’s concerns:

· In the ordinance, the definition of height is actually the average finished grade measured within 5 feet of the building and the highest point of the building.

· As was pointed out, the fact is that the building is built into the hill so there is a considerable part of the property that doesn’t even need any type of special exception; doesn’t come close to 35 feet.

· Pages 6 and 7of the Zoning Ordinance – ZBA able to grant a special exception – "No structure shall exceed 35 feet unless approved by the Board of Adjustment. The Board may authorize a Special Exception to the height regulations in any district if: 1) All front, side and rear yard depths are increased one foot for each additional foot of height; and fire protection is adequately provided for, or 2) The structure is any of the following and does not constitute a hazard to an established airport, television and radio towers, church spires, belfries, monuments, tanks, water and fire towers, stage towers and scenery lofts, barns, solos, cooling towers, ornamental towers and spires, chimneys, elevator bulkheads, smokestacks, conveyors and flagpoles.

· The discussion with the Board last time was that the cupolas were considered to be ornamental.

Ms. Mical: From the ground at the front of the building to the peak that says Hampton Inn in it, what is the height? I want to take that cupola off of there and just go to the peak of the roof.

Mr. Wheeler: 63 feet.

Ms. Mical: They’re saying that it is 43 feet to the top of the section that is white to where the black roof starts.

Chris Connors: If you approve this height exception, does this automatically approve the design of the roof or does the Planning Board take that up separately?

Ms. Hinnendael, Ms. Mical and Ms. Thoits said that the Planning would do the site plan review.

Ms. Thoits: We’d be approving the height. The Planning Board would deal with the design and Site Plan review.

Ms. Connors: I have some pictures for the Board. I did a tour of Connecticut and Massachusetts along highways and I couldn’t find any that were 4 stories and all had full roofs. These are Holiday Inn Express and a Hampton Inn. I thought these designs would fit in and actually help with the height issues. All had full roofs.

Mr. Sullivan: Structure that we have proposed is because of the site configuration. We could spread it out but we would lose the trees on the site. We thought this was the most appropriate way to go.

Rick Davies: Is there an established starting elevation for this building? I think that you would want to base a height variance on a starting elevation. The other concern is about the character of the town. For Warner, the hotels I’ve seen around -- you can get a more colonial design and accomplish the same thing by building a three story hotel. One that I passed out last time looked a lot like the Indian Museum on a larger scale. You were talking about the height regulations on Page 6. Maybe this is a procedural point of view, but how can you approve this height question if you haven’t approved a variance for the side setbacks? That is a separate item.

Ms. Hinnendael said that she was going to bring that up after the public hearing.

Charlie Goodwin: When I think about Warner, I think of something that has a rural or village character. Talking about height and scale, the proposal substantially exceeds any idea of a rural character or a village character. I’ve been bothered by the scale since the proposal first came up. I say this with hesitation because I think this company is a quality company. I like these people; they’re detail oriented. But it is the wrong proposal for the lot – it is a small lot, and it is very close to the road. If it were set back like the proposal in the Charrette, it would step back.

Stacey Cooper: I’m concerned about the number of trees remaining intact and how effective the buffer will be. If you build a four story building and you clear the lot that much, I’m concerned that you’re creating a very narrow buffer around the building that is susceptible because once trees are that exposed the chances that they will remain as a buffer is very minimal because they’re not used to that kind of exposure.

Mr. Sevincgil: The trees will remain in a triangle area over to McDonalds. The trees will remain around the site in the buffer area, about 80 feet, and any trees outside or our property and the road, which is about 25 or 30 feet from the edge of the road, will remain. A lot of those that are removed will be replaced with trees that will grow up in time. As far as the elevations, we’ve indicated that the finished first floor would be at an elevation of 449. We’re working with the grades now since we moved the drive to North Road. The second floor elevation facing North Road will be at 462. If you were standing at Split Rock, you’d be looking at the finished floor of the third floor. The next road up has an elevation of 478.

Barbara Annis: Seeing that we’ve gotten off of the subject of the height, I would like to point out that there is a misconception that was out when the Charrette was done about having the hotel out behind the Market Basket. Our current zoning doesn’t allow more than one building per lot.

Ms. Hinnendael: Couldn’t they get a variance? That’s what variance is for, isn’t it? I think that when people planned for a Charrette, if people wanted this type of a plan then they wouldn’t mind if a variance were granted to put a hotel out there.

Ms. Annis: At the work sessions when we were discussing increasing the size of buildings or adding on, I was told that they could subdivide the lot.

Ms. Mical asked the applicants to pass around copies of the superimposed photos taken to the audience.

Michael Amaral: I do environmental review for a living so I see these sorts of things all the time. When they say that they’re maintaining a tree buffer along those sides of the building, that means that they are going to cut all of those trees down, grade that land and do a little bit of planting of saplings and put bark mulch down. That won’t be a buffer in our lifetime. The other thing I heard is that if we reduced the height the number of rooms would have to be reduced. The number of beds per lot isn’t our concern; it is the developers.

Mr. Sullivan: We did look at reducing the number of rooms on the lot. We were looking at a smaller hotel at first, but 88 rooms is the feasible number. It is market driven. That’s why we made the decision that we did.

Seeing no more hands, Ms. Thoits closed the Public Hearing and reopened the Board meeting.

Ms. Hinnendael: If we approve the height special exception, that doesn’t mean that we have to approve the gross area.

Ms. Thoits: We’re doing them one at a time just like it was three different applications.

Mr. Rodgers: My main concern was what the Fire Chief had to say. I don’t personally have a problem with this because he is the expert.

Ms. Mical: Have you considered a mansard roof, where the roof comes down over the first floor and only the windows show? That would reduce the impact of the height?

Mr. Wheeler: We did look at that. One of the negatives is that the mechanicals. Looking at the images shown tonight, more of the roof would become visible and the exhausts and other things would become more visible. We’re using the roof as a screening element.

There was a discussion about the trees remaining. A thick buffer is in the Charrette – this design doesn’t allow for a buffer on North Rd.

Ms. Mical: How big a buffer is it on North Road?

Mr. Sevincgil: About 30 feet from the edge of the road to where the wall will be.

Mr. Bassette: The way the discussion is going, it is going to be important to determine the height is for which we’d need a special exception. The ordinance talks about the average being the vertical distance being measured within 5 feet of the building, and if that is the way that is measured, it is only 37.5 or 38 feet as a special exception over the 35 feet. The Board needs to decide what the height is that we’re discussing and if a setback variance is needed at all. If we’re looking at a 38 foot average height we wouldn’t need a special exception for setbacks.

Ms. Hinnendael said that she went to Littleton and looked at the Hampton Inn. The lobby is beautiful, but it is huge. A least in Littleton, you have the length of the road as you approach it. I’m concerned that it is too big for where it is. I would like to see a hotel in town, but the one in Littleton is enormous. It is the first thing people will see when they get off the highway.

Ms. Mical: But in Littleton, it sits up on a hill, doesn’t it?

Ms. Hinnendael: There’s actually a road in front of it.

Ms. Thoits: I think you’ve made your point and I don’t think we need to sit here and discuss the Littleton hotel.

Ms. Hinnendael: But it’s the one that they’re proposing.

Ms. Thoits: OK, but I don’t think we need to discuss it here.

Mr. Sullivan: In Littleton, the ground floor is about 40 feet above the road. There is an Applebee’s restaurant and then the hotel sits up above that. That is why it looks so large.

Ms. Mical made a motion to approve the special exception for height with the condition that the height from the bottom of the front to the top of the false roof can be no higher than 63 feet. Ms. Joss seconded the motion.

After discussion, Ms. Joss withdrew her second to the motion.

Ms. Hinnendael made a motion to deny the special exception for the height because the building is not in character with the surrounding area. It will impair the integrity of the surrounding area.

Ms. Thoits read the definition of Height from the Zoning Ordinance: Height means the vertical distance between the average finished grade within 5 feet of the building and the highest point of the building.

Mr. Barnard: I think that they are well within their means with what they have, and the fire department has come here and talked about the sprinklers and all of that seems to be going in the right direction. I think if you take away the roof, you’re going to see all of the mechanicals. I think they’re trying to do the best they can with what they have to work with.

Mr. Barnard made the motion to approve the request for a special exception as proposed because they have met the criteria for a special exception. The proposed 4-story hotel will have a height of 43 feet to the top of the roof structure and 75 feet to the top of the cupola. Ms. Joss seconded the motion.

Ms. Thoits called for a vote:

Mr. Pellettieri: Point of order, Madame Chairman. One of the variance questions coming up this evening very specifically relates to the height of the building.

Ms. Thoits: We’ve already discussed that, Mr. Pellettieri, and we decided that if we deny that variance they’d still have to work something out.

Mr. Pellettieri: I understand that, but if you approve their special exception without identifying what the height of the building is, then you can’t rule on the variance request.

Ms. Hinnendael: It is the 43 foot roof line, which is the top of the white on the building.

Ms. Mical: Could we put what Joanne just read into the motion?

The Board agreed that was to be in the motion. It was added.

 

Ms. Joss: Yes; Ms. Mical: Yes; Mr. Barnard: Yes; Ms. Hinnendael: No; and Ms. Thoits would vote Yes.

Case #04-06 Maximum Gross Floor area

Mr. Bassett: There was a discussion at last meeting as to the interpretation of the ordinance regarding square footage. We originally proposed 70,000 square feet and we’ve redesigned the building to be 62,000 square feet. We would like to go forward but it depends on the Board’s interpretation of the ordinance.

Ms. Thoits: We did consult with counsel.

Ms. Mical: I suggest that you go ahead with your variance request.

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

The hotel’s architectural features and design will reflect the character of the town and enhance the commercial district. The building will be in scale with existing development. The surrounding properties will not be adversely affected, and in fact, the increased business generated by the hotel will likely increase the value of surrounding properties.

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

The addition of a well-designed hotel to the town will benefit residents and visitors to the region. The Exit 9 Design Charrette repeatedly identifies a hotel as a desired use, and specifically contemplates a 50,000 sf hotel. See Charrette at 20. The use is permitted in the district and the Zoning Ordinance specifically states the purpose of the district is to encourage growth of businesses and commercial establishments.

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

It is not clear whether the requested variance is a use variance or an area variance. However, the applicant can satisfy the hardship requirement under either standard.

Applying the unnecessary hardship test under Simplex, the zoning limitation on square footage interferes with the applicant’s reasonable use of its property, particularly given the fact that a hotel is a permitted use in the C-1 district. The unique conditions related to the property, including its small size and its unique and trapezoidal shape, create an additional hardship. Further, the granting of the variance would enable the construction of an economically viable hotel which would not only not adversely affect the character of the area, but which would substantially enhance the character of the area. Other factors, such as architectural details and the façade – all of which will be subject to Planning Board review – are much more significant than the square footage of the hotel in terms of the impact of the proposed use on the character of the area. There is no fair and substantial relationship between the square footage restriction, the general purpose of the Zoning Ordinance, and the purpose of the commercial district in which the property is located. Finally, granting the variance would not injure public or private rights.

The applicant also satisfies the unnecessary hardship test under Boccia. In fact, for all the reasons that the Supreme Court affirmed the granting of area variances for a 100-room hotel in Boccia, the variance sought by the applicant also should be granted. The variance requested is necessary from a practical perspective to implement the proposal for an 88-room hotel. Further, if a hotel is to be constructed in the C-1 zone (as envisioned by the Zoning Ordinance and the Exit 9 Design Charrette), the economics of constructing and operating a hotel requires that a variance from the square footage limitation be granted. There are no other available alternatives, and the restriction imposes a significant financial burden on the applicant.

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

Granting the variance is necessary in order to make it economically viable for the applicant to use the property for a use permitted in the zoning district and repeatedly identified by the town as a desirable use in that district. The Zoning Ordinance specifically states the purpose of the district is to encourage growth of business and commercial establishments. The addition of a hotel to the town will be beneficial to residents and visitors to the region. The participants in Exit 9 Design Charrette public sessions expressed much enthusiasm in response to the proposal of commercial development of a hotel near Exit 9. See Charrette at 17.

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

The use is in keeping with the intent of the ordinance: that the Intervale District be developed as a commercial and social hub for the community. See Article XI of the Zoning Ordinance. The Exit 9 Design Charrette endorsed the concept of a hotel in the commercial district. See Charrette at 17.

The Board discussed the letter from Don Gartrell with his opinion of the gross square footage question asked by the Board after the last meeting.

Ms. Thoits closed the Board meeting and opened the Public Hearing.

Janice Loz: I’m an abutter, and I’m concerned with devaluation of the property, and if it would effect the value of the property in a negative way. I’ve spoken with some of my neighbors, and the surrounding property owners are concerned about this. I would ask the Board to consider this.

Mr. Davies asked the Board to read the statement in the letter to the Board from the town’s attorney, stating that members of the public haven’t been able to see it.

Ms. Hinnendael: I think that Don’s letter was to the Zoning Board as attorney/client, so I have a problem that we’ve shared that with the applicant.

Ms. Mical: Since we’ve shared it with the applicant, right or wrong, we should share it with the public.

Ms. Thoits: Actually, the applicant has a right to see it.

Ms. Hinnendael: Not if he is advising us as a client.

The Board discussed whether it was attorney-client privilege. Ms. Mical said she didn’t have a problem reading it to the public. Mr. Rodgers read the paragraph in question out loud:

In short, I think the question should be addressed as a variance and decided under the applicable test for an area or dimensional variance.

Mr. Davies: I guess to follow up on that, reading on Page 3 of the Zoning Ordinance, under gross floor area, it says it is the sum of the horizontal area of the floor or floors of a building. It is pretty cut and dried in my point of view.

Ms. Thoits: That’s why he’s asking for a variance.

Mr. Davies: Right, but it is a question of interpretation.

Ms. Thoits: In the Charrette we say we’d like a hotel. No hotel is going to be only 20,000 sf. You could maybe put 6 beds in it.

Mr. Davies: If I could just follow through with the rest of my point here. The maximum is 20,000 sf. I assume that is not something that the attorney has any question with –the town counsel. But the point is that there are other hotels out there that are 50,000 sf. or less. They’re looking for 70,000 sf and that is over and beyond what is out there. It is unnecessary.

George Pellettieri: I’ll refer again to my letter which addresses those areas. Those facilities that are down there – the Market Basket and the other facilities – were put in place prior to the changes in our regulations. One of the reasons that the regulations were adopted by the town was because of the very fact that is what is happening down there. To say that just because those things are down there and that is an example of what we want to have is not the case. The Town voted in the changes in regulations to prevent further development of that type, and the 20,000 sf restriction is – the intent of it, regardless of the specifics – the intent of it is to eliminate large scale structures which are not in keeping of the character of the town. Additionally, the overlay district identifies the gateway to the town. and is, therefore, the gateway to the village. Yes, it is zoned commercial, but it in intended to be the gateway to a New England village. A 50,000 sf hotel that was considered by the design team for the Charrette was placed, as has been pointed out, on a site – regardless of the specifics of the site – on a site that was not visually prominent. Again, I’d like to point out that the Warner Citizens for Smart Growth are not in any opposed to the idea of a hotel. This is an appropriate area for it, but it is very much a question of scale. Even a 50,000 sf hotel, which would be 20,000 sf less than the applicant is asking for would be substantially smaller. Counsel has referred to several superior court cases in the State of New Hampshire – Simplex and Bocchia – and there are other meetings and other cases that have evolved since those that further define the definition of hardship. Several of those have to do with self-created hardships. It would have to be something unique to this site that is creating a hardship for the applicant. The applicant purchased this with the idea of putting a hotel here and that is a reasonable commercial use; however, it is again a question of scale. We don’t feel that this is a unique setting or special condition of the property that would warrant the question of a special exception.

Ms. Joss: Mr. Pellettieri, do you know any hotel that is interested in building a 50,000 square foot in that area?

Mr. Pellettieri: We’ve haven’t researched that. We’ve brought to the Board’s attention a number of immediate and farther distance hotels that are much smaller in scale and more appropriate for the setting.

Ms. Joss: Yes, I understand that, but if they aren’t here applying to build their hotel there, it doesn’t seem applicable. We all know they’re out there, but they aren’t asking us to build their hotel in our town.

Mr. Pellettieri: I understand that and I’d like to reiterate what we’ve stated earlier. This is an excellent applicant before the Town. We think that they are making an attempt to work with the town, but the question here is a question of scale.

Von Collburn: I think if you vote for the variance, you will be voting against what the townspeople voted for some time ago

Ms. Thoits: I don’t understand, voting against the townspeople.

Mr. Colburn: As he said, they voted for a new voting law that would limit buildings in that district.

Ms Thoits: And that’s the reason we have variances. Every time we grant a variance, we’re voting against what the townspeople voted for. That’s why we have variances.

Mr. Colburn: But this one is a big variance. 40,000, 50,000 sf? That’s huge.

Ms. Thoits: You couldn’t build a hotel in that 20,000 sf., sir.

Mr. Colburn: I agree, but maybe it doesn’t belong there, then.

Mr. Bassett: I would like to comment on a number of issues that have been brought. I’ve spoken with Mr. Sullivan and obviously there is great sensitivity to the number of square feet that we’re seeking a variance for, and he is willing to limit the request to the actual conceptual presentation here which was just shy of 62,000 sf. So while the flexibility would have been preferable, we’re willing to forgo that. I would like to ask Mr. Sullivan to explain the economics of the hotel and what they’re experience and thinking is because we want that to be available to the Board. This case is strikingly similar to the Bocchia case which actually involved a hotel and involved someone who wanted to put in a hotel and the precise arguments that are being made in that case, which were that they can have a smaller hotel if they weren’t trying to make so much money. And the supreme court treating that as an area variance, which is perhaps is the way this Board is going to treat it tonight – evaluated the decision and upheld the granting of the variance by the Board, and I think that is also the appropriate result tonight because it is very similar.

Mr. Sullivan: I mentioned before that when we looked at reducing the number of rooms, economically it didn’t make sense for us and if we were to reduce the gross square footage from what we need, which is 62,000 – the attorney suggested that we asked for 70,000 sf for flexibility – essentially what you’re doing is reducing the room size by about 20%. In order to have both short term and long term economic viability of the product, what you need is a room that is comfortable. You said that you went to Littleton – the lobby isn’t big and the guest rooms were a good size, and that’s what we want to provide; however, by reducing the room size by 20%, it may be that in the future additional competition coming in, whether it’s up or down the street, and our guests leaving here to go there because the rooms are more comfortable. We certainly don’t want to build a building that is bigger than necessary. We want to keep our investment at a reasonable level; however, at the same time we have to keep in mind our customer and our customer very much likes the product that we have in Littleton and from our experience in the hotel business, the size of the room that we’re proposing is a typical size guest room.

Ms. Mical: I have a question for Mr. Sullivan. Compare the size of the rooms to the Holiday Inn on the Cape in Falmouth. Are saying that these rooms are smaller than the rooms down there?

Mr. Sullivan: As they are proposed, no. They are approximately the same size.

Ms. Mical: Thank you.

Hearing no further comments or questions, Ms. Thoits closed the public hearing and reopened the Board meeting.

Mr. Rodgers: My only comment is that this is one of only two commercially zoned areas in town. I live in a commercially zoned area. I have Warner Power abutting my lot and I have a lovely view of that, and I have Harry’s Garage on the other side. I understand when everyone talks about diminishing values in property, but there’s a McDonalds, there are two gas stations, there’s a grocery store. If we’re going to do this, it needs to be in this area of town.

Ms. Thoits: It needs to be in a commercial zone, I agree with you.

Ms. Mical: I do think we need to address this as an area variance because legal counsel has advised us of that.

Mr. Barnard made a motion to grant the variance and limit the size of the building to a total of 62,000 square feet because they need 88 rooms and they don’t want to make them too small. The height is another issue, but I think that they’ve done their homework on this and I think that they’re within reason.

Ms. Mical asked Mr. Barnard if he would be willing to tack on the 62,000 sf . He’s saying that the room size that they’re proposing is the 62,000 sf.

Ms. Thoits: No, he’s saying that he would have to reduce the size of the rooms if they went with 62,000.

Mr. Sullivan: No, the 50,000 would be an approximately 20% reduction in the room size. 62,000 is fine.

Mr. Barnard said that he would go along with that, and amended his motion. That’s fair. Ms. Thoits said that she agreed

Ms. Joss seconded the motion.

Ms. Hinnendael asked if the Board thinks that they’ve created their own hardship by putting this hotel on this lot. Ms. Mical they did well because the back half of the first floor – because they’re trying to accommodate us or the town by keeping the building tucked in as much as possible – is not useful for rooms because you have to have rooms with windows. I would like to state that I do feel that they did answer all of the questions of the variance and that they’ve satisfied all five criteria. Ms. Thoits agreed that they had satisfied all of the five criteria needed for the variance.

Ms. Thoits called for a vote. A yes vote will grant them an area variance for the 62,000 square feet hotel. A no vote will deny that.

Ms. Hinnendael: I think that is contrary to what we want in this area.

Ms. Thoits: You just have to say yes or no, Joanne.

Ms. Hinnendael: No; Mr. Barnard: Yes; Ms. Mical: Yes; and Ms. Thoits would say yes.

Case #05-06: Variance for Setbacks

Ms. Mical: The necessity of a setback variance depended on the measurement used for the height of the building. If it is measured according to the definition, which uses the average, what is the height?

Mr. Bassett: If the Board is accepting our interpretation, which is the height is that the height is 46 feet as measured from the front of the building up to the top of the inhabited area – there are 30 feet on the uphill side, there are 43 feet on the downhill side, and if you average that it’s about 36 feet 6 inches. The minimum is 35 feet, so arguably we would need 1.5 feet. But then if you apply that to the setback requirements, I believe that if you use 36 or 36 feet as the average we don’t in fact need a setback variance.

Mr. Sevincgil: The three areas that we need variances for are this corner of the building where we’re at 43 feet from the North Road property line and the setback requirement is 40 feet. In the back, we’re at 71 feet so we would not need a variance here. On the left side, we’re ok with where the building is, and along Main Street we’re providing 67 feet so we wouldn’t need a variance there.

Ms. Hinnendael: There’s brook that goes along that side of the property. How close are you to that?

Mr. Sevincgil: The closest is here, about 6 or 7 feet, but we would be redirecting the brook.

Ms. Mical: I guess the question is, is that brook on the 7 ½ minute USGS quadrangle maps and it is questionable if that that brook would be on the map.

Mr. Sevincgil: I don’t think it is. Actually, when we did the survey a few years ago, we had a wetlands scientist back there and he didn’t view that as wetlands because it wasn’t flowing at the time. At a later time, there was a very minimal amount of flow. It is runoff from the hill.

Ms. Mical read from the Zoning Ordinance under General Provisions: J: Warner River, bodies of water and waterways: … All buildings, including storage tanks, shall be set back a minimum of 75 feet from the Warner River, ponds greater than 10 acres and all other perennial waterways and streams as shown on standard 7 ½ minutes USGS quadrangle maps. In addition a minimum of 50% of the existing natural vegetation shall remain as a buffer.

Ms. Hinnendael made a motion that the applicant doesn’t need a variance on the setbacks. Ms. Mical seconded the motion. The motion was seconded and passed by a unanimous vote.

-----------------------------

 

Ms. Mical made a motion to move the Mock subdivision application to before the Cingular application. Ms. Thoits said that the Cingular people were here at the meeting before anyone else and would defer to them to be fair. It was decided that most of the people in the audience were at the meeting for the Cingular hearing. It was agreed to continue with the agenda as is.

New Cingular Wireless PCS, LLC: Special Exception and Variance

Applicant: New Cingular Wireless PCS, LLC, 580 Main St., Bolton, MA 01740

Agent: Jeffrey L. Roelofs, Anderson & Kreiger LLP (attorney), 43 Thorndike St., Cambridge, MA 02141

Property Owner: Justin Solomon, 278 Kearsarge Mt. Road, Warner, NH 03278

Property Location: 69 Waldron Hill Road, Map 10, Lot 31, R-3 Zoning District

Proposed Use: Wireless telecommunication facility. A camouflaged "alternate tower structure" with a maximum height of 100 feet above ground level, consisting of a monopole designed as an artificial tree (monopine) and sited in a wooded area several hundred feet from the nearest property line and 1285 feet from the nearest public way to further camouflage and conceal the antennas and portions of the tower. Up to 12 panel antennas mounted in three sectors of 4 antennas each, at an antenna centerline height of 98 feet above ground level, tower mounted amplifiers for the antennas located behind the antennas, a fenced equipment area at the base of the tower, a wireless communications equipment shelter and other associated ground equipment at the base of the tower, coaxial cables that will run from the antennas, down the tower, to and across an ice bridge covered by a cable tray to the equipment shelter, where they connect to the communications equipment, and standard electric and telephone utilities to be run overhead. Cingular also proposes to construct a gravel drive to access the facility (which drive will be the subject of a wetlands filing with the NH Dept. of Environmental Services).

Case #01-06: Special Exception

A Special Exception is required to construct a new tower in the R-3 zoning district per Town of Warner Wireless Telecommunications Ordinance section 1003.2.

Case #02-06: Variance

Variances sought to the Wireless Telecommunications Ordinance sections 1003.01(e) – requiring lease area with radius of 125% of tower height; 1003.02(b) – limiting tower height to 20’ above average tree canopy; 1003.2(c) – prohibiting tree cutting/removal/damage within 200’ radius of fenced facility; 1003.02(d) – requiring legal capacity to control tree cutting/removal; and 1003.02(e) – limiting tower height to 100’ below the nearest ridgeline

In place of Mr. Roelofs, Mr. Doug Wilkins represented Cingular at this meeting. Jonathan McNeal was in attendance as well as Mr. Leary from the State of New Hampshire.

Mr. Wilkins: After the last meeting the Board had a number of questions. I realize that a supplemental submission is just arriving on your desk now and you may not have had a chance to look at it and the general public hasn’t had a chance to look at it. If you would like a continuance, that is something that we understand.

In response to the issues brought up last time:

Sheet Z2 of the plan, we’ve added a number elements that Board was interested in seeing

Added information about the road easements, culverts, wetlands flags, and will work to get the appropriate approvals for the crossing of wetlands.

Limited tree survey was done at the tower location. Tree heights range from 76 feet, 66, and 85 feet.

The tree canopy is somewhat of a judgmental thing. The tallest trees will block the signal. If you take an average of those, you get 66 feet. You can see with your ordinance you’re not going to get much co-location unless you start at 20 feet above tree canopy. In our proposal, we did our radio frequency analysis at 100 feet and you can see that it just barely covers these spots.

Sheet Z3 of the plan, more information about tree cutting is provided. Shaded areas show proposed tree cutting.

Sheet Z4 also shows proposed tree removal and this depends on getting equipment up to the site safely. As you can see, it shows that all tree cutting is minimal and only as necessary for construction.

Shown grading information and contours have been put on the plan on Sheets Z5 and Z6.

General approach is to cut a 25 foot wide space. They will cut less than a 25 foot wide area if they are able to.

The road is curved, so as you look up at Waldron Hill Road, the view of the tower would be shielded by the contours.

Above ground versus underground utilities was questioned. The plan shows where they run underground and above ground and it is designed to minimize the view of the utilities.

Balloon test done on April 1^st. Packet of photos given to the Board and to the audience showing the photos of the balloon and photos of the tower superimposed on the photos as it would appear when built. Photos taken from several areas around town, as asked to do by the ZBA at a previous meeting.

Someone was under the balloon with a walkie-talkie to communicate with the person with the camera, so that he could tell the photographer when to take the picture – at the time when the wind was not blowing the balloon and it was straight up overhead.

Ms. Mical: the balloons stuck out like a sore thumb from many locations. From Kearsarge Mt. Road, it was very imposing and very obtrusive – it was right in front of you. I went up on Burnt Hill, it wasn’t as imposing. You could see the balloons, but they had the hill behind them. I went into several people’s door yards and go out of my car and looked, and from three locations on Waldron Hill, it would really impact the people their yards. Because we have other locations that are approved but not built, I think this is so much more obtrusive than the balloons tests that were done on the other sites. I’m not in favor of this tower.

Ms. Hinnendael: I took a picture from Waldron hill and it was very obvious. These people are taxed because of their views and it would impact them.

Ms. Joss: If someone were to get hurt up there on the Class VI road, would you also take them out by snowmobile?

Mr. Wilson: We do plan to make road improvements, but it will remain a Class VI road because we don’t want to have the town bear the burden of it. Safety is an issue and that is something that we would make sure of. It is our responsibility to make sure that our employees are safe if they’re sent up there. We’re not trying to pass any burdens onto the town.

Ms. Joss: I wasn’t thinking that you were passing responsibility on; I was thinking more that if somebody up there needed an ambulance, it is a Class VI road.

Ms. Mical: What they would end up doing is if it is winter, the fire department will fire up the snowmobile and they will do everything they can to get to the person. Does it delay them? Certainly it does.

Mr. Rodgers: Didn’t they say something about propane up there, too?

Ms. Mical: Yes. And they also have a generator.

Ms. Hinnendael: They also said something about removing a stone wall. Is there a state law about moving stone walls?

Ms. Mical: There is some type of state law about moving stone walls, but I’m not sure what the law is.

Ms. Hinnendael: I noticed some ads in the Intertown Record and I’ve never seen them before. Sissy said she thinks that they have something to do with historical information.

Mr. Wilson: This is in connection with an historical review. It is not in relation to this particular proceeding with this Board. But we have to, by federal law, analyze any historical impacts because the FCC won’t license us if we don’t go through that process.

Ms. Joss: I have a question about putting a second carrier on this tower. Do the surrounding trees just grow to a certain height and then stop? I mean, is that the nature of trees? When the trees grow, what happens?

Mr. Wilson: Realistically, if some is going to co-locate they need to be underneath the existing carrier. So they’re going to take into account future growth and take into account that the signal is going to be absorbed by the surrounding vegetation. So that’s why we’re proposing a tower 20 feet above the existing tree canopy.

Ms. Hinnendael: You’re proposing 100 feet, and that has to be 30 or 40 feet over the existing trees.

Mr. Wilson: We acknowledge that we’re 100 feet above, and that’s why we’re asking for a variance. That is also why we’re proposing a monopine. I know that the Board is interested in a tapered monopine, so that it doesn’t look like a bottle brush.

Mr. McNeal: We can do something like the Exit 7 tree if that is what the Board wants.

Mr. Wilson: We’re really trying everything we can to make this tower as unobtrusive as possible, given that the other tower hasn’t been built. You have to have something to cover this area and up until now the other option isn’t coming forward.

Ms. Hinnendael: In one picture you’re showing 75 feet as the height of one of the trees, but in another picture it is in an area where you’re going to cut them down. I want to see what trees will remain.

Ms. Mical: Did you do more than the three trees that you listed?

Mr. Wilson: I don’t believe so.

Mr. McNeal: I am aware that the Board has seen better tree studies, specifically on the Parade Ground Cemetery site. I’m somewhat familiar with that site because we were approved to co-locate on that tower, too.

Ms. Joss: Do you know what the terrain is 50 feet on either side of that 24 foot wide road?

Mr. McNeal: It is all trees.

Ms. Joss: I also have a question about the RF emission studies. You’ve heard the abutters bring up the issue of the study being paid for by your company. I’m wondering if there are any independent studies done, and if you know what the oldest RD emission frequency studies are. People want to know the long-term effects.

Mr. Wilson: We do an RF emission study on each site to compare what will be produced to the regulations. It is a small fraction of the FCC limit. There is a safety margin built into the FCC limits. Given that we’re just a fraction of that limit, that is an extra safety margin. This is regulated federally, not at a local level.

Ms. Thoits: Have you talked with the people that are building the tower on Parade Ground Cemetery Road?

Mr. McNeal: Yes, we were scheduled to go onto that tower in 2003.

Ms. Thoits: We have a letter that was written to Mr. Kirchner, who owns that property yesterday. "SBA Towers is very interested in building the tower on your land. We are completing the deal with IWO Sprint and hope to finalize within the next couple of weeks. As soon as we get assignment from them on the ground lease, we can have Jon Springer proceed with final paperwork and hopefully build during the third quarter of this year. Sooner if all goes right, but we have it scheduled for quarter three." So with our ordinance that you have to co-locate and you’re already allowed on that tower, and that tower is built, is this tower not moot?

Mr. McNeal: Since we were approved on that tower in 2003, we’ve been trying to get the original owners to build it. We’ve offered to build it ourselves. Nothing has been consummated as far as I know. Someone says that they’re going to buy it and build it but nothing happens, so I can’t count on that. I would take SBA at their word if they say that they’ve applied for a building permit, but I don’t think they’re at that point yet.

Mr. Wilson: To answer your question, it’s not moot but if they’re talking about something that is going to happen in a couple of weeks I have doubts about that.

Mr. Thoits: I think it would be wise to continue this until next month because if it is something that is supposed to happen in a couple of weeks that would give us the whole month.

Mr. Wilson: We don’t have a problem with that. We’re not trying to push something through if that’s really going to work. We’d have to do analysis to see if that would work for us.

Mr. Howard Kirchner: I spoke with that man yesterday. IWO has been basically taken over by Sprint and that has caused some delays. SBA is the tower company that builds towers. IWO ran into cash flow problems and such and I signed over the rights for them to turn this over to another tower company. SBA is very interested in building the tower. They are very interested in Cingular and if they had assurances from Cingular that would make it even better. But they are at the mercy of Sprint at this time.

Ms. Thoits said that we should wait until next month to see what happens within the next two weeks. Mr. Wilson said that he would like to hear from people is they have any further questions or concerns because they would then be able to move forward with this process if the SBA tower doesn’t happen.

Hearing no further comments, Ms. Thoits closed the Board meeting and opened the Public Hearing.

Diane Jamison: Regarding the underground lines, how many feet in are they going to come from Waldron Hill Road?

Mr. Wilson: This is approximate, but it looks like over 150 feet but short of 300 feet.

Ms. Mical: Is it right after the pond?

Mr. Wilson: It is just before the stream.

Ms. Jamison: If it’s not going to be plowed, how will the propane be delivered in the winter? And how will a fire from the tanks be handled? How will you get fire trucks up there? Also, photo locations 3 and 4 show different locations from the balloons and tower. The balloon is shown out by itself above the trees, and the superimposed tower is hidden in the trees and has been moved over into the trees in a different location that the balloon.

Ms. Hinnendael: Yes, I noticed that.

Joe Mendola: When I first got the notice, it said that if I had a response to the Board by the date, which I did, it said that it would be read at the meeting and it hasn’t been read yet. I see new faces here.

Ms. Thoits: I have it here to read into the minutes tonight. After the questions, I have two letters to read into the minutes.

Mr. Mendola: Thank you.

 

Bob Humphrey: I contend that this tower is unnecessary. I also contend that cell phones are unnecessary. I have to go down this road every day, and I agree that they have blurred where the tower would be in those pictures.

Chris Connors: I actually do photo rendering for a living. If someone didn’t see the balloons, it can be very deceiving, especially the ones from downtown. There were very prominent. There is going to be a very large clearing around this tower, so while the trees are there for a background now, once cleared -- if they don’t have a background -- the towers are very visible. If there is a possibility of having a tower built elsewhere would be preferable.

Mark Lennon: I’m a member of the Planning Board and was on the Planning Board when the wireless ordinance was written, and I think it would be absolute folly for the ZBA to grant a variance on the height. The first thing I’d say is when the Planning Board selected 20 feet above the surrounding tree canopy, if you go back into the minutes that was selected after a lot of deliberation specifically contemplating the fact that require that there be more smaller towers rather than larger towers and that was clearly the preference of the people that spoke about putting towers in Warner. The principle reason is that 20 feet above the existing tree canopy sort of doesn’t bother the eye. There are very few pine trees that stick up 30 or 40 feet. So I would definitely say that 20 feet was selected with care and with specific instances such as this considered. I’d also point out that since the ordinance was passed, three other applicants have come before the ZBA and the Planning Board and not a single one of them had a problem with the 20 foot requirement. They said that they could live with that limit. There was a question about what happens when the trees grow up, and I think the response was that if the trees grow up, you can ratchet the tower up 5 feet 10 or 15 years down the road. But I would suggest that the trees aren’t growing that fast. I would also suggest that if you look at the variance criteria, this request does not satisfy a single one of the five variance criteria so I think that it could easily be put down on those grounds alone. If Cingular is willing to move to the other tower, they can live with a shorter tower and it isn’t that important. If the Zoning Board approves this variance, you will be setting a precedent and opening a box that you can’t shut again.

Ms. Thoits read letters into the record:

March 7, 2006, Joseph Mendola, 83 Waldron Hill Rd., Warner, NH

Planning Board, Zoning Board of Adjustment

RE: Case #01-07 Variance for Cingular Wireless Tower

Dear Board Chairperson:

I live at 83 Waldron Hill Rd. and my wife and I are not in favor of granting variances for locating the Cingular Wireless tower behind my house for the following reasons.

1. The tower would be diminutive to the value to the value of our neighborhood that would allow a commercial activity to operate with utility truck visits through the backyards or our residential neighborhood. No one wants to live in an area where their children would have relatively easy access to a dangerous commercial activity.

2. Granting the variances would be contrary to the public interest because the Town deemed it proper to keep the dimensional requirements within the limits it set out in the zoning bylaws. Otherwise, they would have made the dimensional requirements allowable.

Denial of this variance would not result in an unnecessary hardship to this property because the whole tower concept is not consistent with an activity of this kind in a residential neighborhood. This land is desirable for residential housing not towers that require a larger height or wider clearance that is allowed in the town ordinances.

4. Granting the variances would not result in substantial justice. There are places in the commercial areas in town that are more appropriate for this commercial activity. By placing the tower in this residential neighborhood would make this neighborhood a less desirable place to live and consequently the existing residents will be treated unjustly.

5. This use is contrary to the spirit of the ordinance because the town intended this tower placement to be in an area where there is possibly one house per multitude of acres not a more densely populated residential area like Waldron Hill Road.

Sincerely, Joseph Mendola

Also from Mr. Mendola:

Re: Case #01-06 Cingular Wireless Tower

Dear Board Chairperson:

I live at 83 Waldron Hill Road and my wife and I are not in favor of locating the Cingular Wireless tower behind my house for the following reasons. It makes no sense to locate this commercial activity in the back yards of this fairly dense neighborhood where our children play.

I presume that the Town allows this type of use in the Residential R-3 zone with a special exception to make sure that this commercial activity is not developed in a neighborhood that has a number of single family residences in a close area as is the case with Waldron Hill Road. We have children that play in these backyards and we do not need to have utility trucks making numerous visits to this site. Nor do we need to provide a temptation to young curious minds to explore what is on the other side of the fence that would guard the electrical equipment for this tower. This commercial use would be better located in a commercial zone or in an R-3 zone that has a house every 25 acres or so. That is a more rural area not a residential neighborhood.

This use is not essential to the public. The desirability to may be the case. But this activity can still be accomplished in a less densely populated area than Waldron Hill Road.

This use will impair the integrity of this neighborhood because nobody would really want to move to a street that has easy access to a cell tower by its children. Nor would one want to move to a neighborhood that had intervals of utility trucks coming to this site.

In summary, this commercial activity of cell tower placement and maintenance is best located in a commercial zone or a more rural area than Waldron Hill Road. Thank you for taking our concerns into account when making a decision on this matter.

Sincerely, Joseph Mendola

March 4, 2005

Victor M. Kumin, 40 Harriman Lane, Warner, NH 03278

Town of Warner Zoning Board of Adjustment

Re: Case 01-06 and Case 01-07

Maxine Kumin and I are joint owners of the property abutting to the east of the proposed wireless telecommunication facility, which we have owned since 1963. We are not fundamentally opposed to the construction of antenna towers in Warner. We own cell phones and the current service from our property is limited by weak antenna strength and a nearby antenna would of course improve our wireless communication capability. However, we do not yet know what re the reasons for the request for the variances and on the basis of what we now know we are opposed to construction of an antenna tower facility on the proposed site.

Granting the variances requested in Case #01-06 would in effect invalidate the relative provisions of Wireless Communication Ordinance 1003 not only for this case but for all future applications in Warner because of the precedent it could set. The applicant apparently seeks to avoid the specific requirements of the ordinance including: lease area, tower height above adjacent tree canopy, tree removal limitations, legal control of tree cutting, and tower height in relation to the nearest ridgeline.

Our property extends from the property of the site to Joppa Road and contains what perhaps is the nearest ridgeline. No data has yet been submitted relating to the impact of the nearest ridgeline. Granting the requested height variance would cause visual impairment both in the adjacent area and at a distance. The visual view impact from significant portions of the town north of the proposed site we believe would be adversely impacted including those from major portions of Kearsarge Mountain Road and Burnt Hill areas.

Also, we oppose granting the requested special exception because it could set a precedent for permitting construction of future towers on R-3 zoning land anywhere in town, which is currently prohibited by Ordinance #1003.2.

Lastly, it is our understanding that permits have been granted for construction as yet not implemented of antenna towers on two other areas of the town, one on the Kirchner property adjacent to Kelly Hill Road and the other on the Pletcher property adjacent to Kearsarge Mountain Road. I believe that this applicant may have been the applicant for the former site or one of its beneficiaries. In any case, we do not understand why three new towers in the proximity of each other are needed.

Sincerely yours, Victor M. Kumin, Maxine Kumin

The hearing is continued until the May 10^th Zoning Board meeting.

Case #6-06: Variance

Applicant/Owners: Gloria Mock and Trudy Von Ahnen, 22 Denny Hill Road, Warner, NH 03278

Property Location: Old Pumpkin Hill Road, wooded lot, Map 19, Lot 1, R-3 zoning district

Purpose: Subdivision of lot with frontages on Class V and Class VI road

Mrs. Gloria Mock presented the case.

· Ms. Mock explained the plan to the Board – there will be a lot line adjustment on two lots not related to this application, and that this variance would allow for the subdivision of one lot into two lots where one lot doesn’t have the required frontage on a Class V road – there is more than enough frontage but not all on the Class V road.

· Frontage: 118.2 feet on a Class V road, and 421.4 feet on a Class VI road

· Property will still remain in the family

· The abutting property is where the camp is located

Mark Lennon asked if the abutters in the audience could come up and look at the plans so that the Board wouldn’t have to repeat what they were saying. Ms. Thoits suggested they wait until the Public Hearing is opened.

Ms. Mock:

· The only families that they are concerned about or that would be affected by this subdivision are the Wyman’s and the Karrick’s. Derek Pershouse lives down the road as well as the Whites. All are in attendance.

Ms. Thoits read a letter from Allan Brown, Public Works Director:

Re: Mock Subdivision

On the northerly bound of Map 19, Lot 1, there are 441.3 feet of Class V road frontage in the northerly direction on Old Pumpkin Hill Road.

Ms. Thoits read a letter from the Laura Buono, the Town Administrator for Warner:

4/12/2006

Re: Class VI Roads

I am writing to advise you of concerns which have been brought up to me with regard to the possibility of the Zoning Board approving the subdivision of lots with frontage on Class VI roads or with inadequate frontage on Class V roads for building purposes.

The creation of such lots cause a problem if and when the property owner requests a building permit due to the fact that the Selectmen have a Class VI Road Policy in place that states "No structure shall be placed or constructed on any Class VI Road without the said road being brought up to Class V specifications." As you can imagine, it can be quite a surprise to the property owner to find out they have the burden of upgrading the road.

I have attached a copy of the entire policy to this letter for your reference and consideration when the Zoning Board is dealing with such scenarios. Thank you. Very truly yours, Laura Buono

Class VI Road Policy

The policy of the Board of Selectmen, being the local governing body of the Town of Warner in regards to the construction of any structure or placing there of on any tract of land situated on Class VI Roads, shall be as follows:

1) No structure shall be placed or constructed on any Class VI Road without the said Road being brought up to Class V specifications. The road must be approved by the Public Works Director, then accepted by the Board of Selectmen after holding a public hearing and conferring with the Warner Planning Board. The cost incurred to make any and all improvements will be solely at the expense of the proposed landowner seeking consideration, and subject to an approved plan by the Town Public Works Director. Only after said Road is completed, and the Town of Warner Public Works Director has reviewed and signed off on the road, will the Town of Warner then issue a building permit application. No segmented portion within a Class VI Road may be upgraded to meet these criteria. This policy will be strictly upheld without exception. Board of Selectmen: Martin Nogues, Chairman, John Brayshaw, Robert O’Connor, Nancy Martin, Planning Board Chair, Allan Brown, Public Works Director

Ms. Mical: I will ask you to make a note that there are 118.2 feet of frontage on a Class V road on this application.

Ms. Thoits read one more letter into the record, received by an abutter:

April 11, 2006, Mary Mead, 461 Pumpkin Hill Road, Warner, NH

To the Warner Zoning Board, Re: Case #6-06 Variance (Mock property)

It is my belief that the variance as requested on this property should not be granted as it does not meet any or all of the provisions for variance as set forth by the zoning laws.

Zoning Ordinances have been adopted by the town in the best interest of the town. As the town works to control growth and retain its unique charm and character, one that is in the best interest of property owners and the community, it is imperative that variances be granted judiciously and ONLY in situations for which all of the criteria are met. This variance does not meet that threshold.

It is a valuable property that will in all likelihood, based on current market conditions for such land, benefit the current owners, by legal right and luck, handsomely. Sincerely, Mary Mead

The Board asked Ms. Mock to read her replies to the conditions of granting a variance into the record:

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

Property is zoned rural/residential. It is a possible 2 lot subdivision only. The property is surrounded by woodlands, and a cemetery abuts the property.

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

It fits in with the rural character of the land.

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

No fair and substantial relationship exists between the general purposed of the Zoning Ordinance and specific restriction on the property. We are settling an estate and satisfying the wishes of a will. We wouldn’t be able to use the property for residential use. Future driveway and house would be off of the Class V road frontage.

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

See above.

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

It would still maintain a rural character.

Hearing no further comments, Ms. Thoits closed the Board meeting and opened the Public Hearing. She invited the abutters and others to look at the plan of the proposed subdivision.

David Karrick: I think that there are two issues here. One is granting a variance to do the subdivision with one of the pieces of the subdivision not having enough road frontage on a Class V road. Personally, I’d have no objection to that variance being granted since I was granted a similar variance when I built my house on the same road. The other issue is an issue that you alluded to, and that is a rule related to building on Class VI roads. If you grant the variance to Gloria and her sister in this case, the fact to whether a building permit is granted or not is something that can be taken up at a later date. As I see it, it doesn’t relate to whether this variance is granted or not.

Ms. Thoits: I think that is what the Town Administrator is pointing out. If that was indeed sold to someone and then…

Mr. Karrick: And then it’s their problem, right?

Ms. Thoits: But is that fair to let them think they can build a house there and then have the town tell them, "No, you can’t build a house there because it is on a Class VI road."

Mr. Karrick: Does somebody tell them? Is somebody keeping it a secret from them – that they would have to deal with this?

Ms. Mical: Would a Realtor lie?

Ms. Thoits: By law, they wouldn’t but we had a very sad case where they did, so…

 

Mr. Allie Mock said that Mr. Karrick has 123 feet of frontage on a Class V road, and this lot has 118.2 feet: He went down and then he went in and he built on the Class VI road.

Mr. Karrick: That’s right.

Mr. Mock: So I don’t see how… We’re going the same route.

Mr. Karrick: It’s possible that my house was built prior to this ordinance being passed.

Ms. Mical: No, it’s been around for a long time.

Mr. Karrick: I started building over 10 years ago.

Mr. Pershouse: I would like to address the topography of the area and the general character there. I’m not sure how many of you Board members know the end of the road by David’s house, but right at the point where David built out the road to meet his driveway requirement at that time, right or wrong; right at that point is a serious drop-off. It is also a very pleasant and very nice entrance to the part of the road that isn’t improved. It goes down to the cemetery and it is something I would like to see maintained as it is, which is a barely passable Class VI road. If it came down to granting approval for the variance, I think it would really enhance and maintain the character of the road – recognizing that there is a Class V and Class VI law. I think that there are extenuating circumstances and I think that all of the neighbors agree with the general concept that it is a very nice area and we don’t want to see it change. We can argue about it later when somebody wants to build on it.

Ms. Mical: It may be too late at that point. I think you need to realize that.

Mr. Pershouse: Oh, yes.

Ms. Mock: We’re trying to get this settled, as I have stated. My family has paid taxes on it for many, many years. My husband and I have built. I have always lived in this town – I was born and brought up in this town. It’s a shame that some of us can’t do what we want to do. We’re not hiding anything. We’re showing you as it is. As I’m saying, who knows what tomorrow is going to bring and if it would be built on.

Mr. Karrick: When I built my house, I bought two lots and if somebody is looking at these lots with the idea of buying the lots and you’re not allowed to build on the lot which is partially on a Class VI road, there’s nothing stopping them from buying the adjoining lot in order to build.

Ms. Thoits: Unless someone else bought that lot first.

Mr. Lennon: I’m of two minds on this. I like Allie and Gloria; they’ve been great neighbors and they still are. I certainly understand the need to extract value from the land instead of paying taxes on it and it being a sinkhole. I’ve invested in a sinkhole myself.

Ms. Mock: Your kids like to use it, right?

Mr. Lennon: Well, yes. We jump our snowboards there. One half of me says absolutely. The other side says that I would be concerned about setting a precedent, although there aren’t a lot of other situations in town where this would come up. I would be concerned about having a lot that would invite development on a Class VI road. Secondly, I’m not a Realtor, but I suspect that there is plenty of value to be extracted from that hilltop whether it is in two lots or one. There are folks that would pay a premium to have one big lot like that instead of the smaller lots. So I can’t really say I’m for or against it. As a Planning Board member, I’m not sure that it meets all of those criteria for a variance. I think if I were in your shoes I’d have trouble granting a variance for that reason. But in terms of developing the town, big 5 acre lots are not inconsistent with what the Planning Board sees for that hill.

Peter Wyman: I agree with everything that David and Derek have said. I’m also a big believer that if you own a piece of property and you bought it for a dollar or a million dollars, what you do with that property should be your right. And the fact that the abutters have no issue with it and the fact that we don’t want the road extended – if the alternative is that they would have to extend the road, we don’t want that. We don’t want the road extended and like that it is a dead-end road. All of the abutters are in favor of this. I would rather you grant them the variance then have them upgrade the road.

Ms. Mock: We don’t want to extend it, because we have 118.2 feet.

Ms. Thoits: Do you have a building up there?

Ms. Mock: No. But my parents have had all of this for years and years. This property is all woods.

Mr. Wyman: I would rather you grant them the exception for 118 feet of road frontage and give them their lot, which I think that they deserve, then have them extend the road to 250 feet so that they automatically get it anyway. We don’t want the road extended. It would e much better to have the lots as they are.

Mr. Karrick: Leave that cemetery in peace.

Mr. Pershouse: Would it be possible to put a condition on the decision so that the road would not be improved to meet lot requirements?

Ms. Joss: We could add that to the granting of the variance with the condition that that road not ever be upgraded.

Ms. Mical: You can’t do that because there are other land owners down that road that may some day want to upgrade the road.

Ms. Hinnendael: Technically we could have them move the lot lines to angles, but the Planning Board doesn’t like those types of lots.

Mr. Pershouse: You don’t need to, because there’s plenty of road frontage the way it is.

Ms. Hinnendael: That’s right. We’re only talking about a 59 foot variance.

Mr. Pershouse: Another topographical issue – that lot has a spectacular view of the mountain. It’s wooded now, but it’s a whole view if you look to the north. An ideal building site on that lot, if it were granted, is situated on the Class V portion of the lot.

Ms. Thoits: In other words, the Class VI portion isn’t where you’d want to put a house anyway.

Ms. Mock: No.

Ms. Annis: Just a comment. I know that the other lot has enough road frontage so that it could be Mickey Mouse'd so that the second lot would have enough road frontage. But I believe that the Planning Board did not want that.

Ms. Thoits closed the Public Hearing and reopened the Board meeting.

Ms. Mical made a motion to Approve the request for a Variance to the Town of Warner Zoning Ordinance, Article VII, C.1.a: Low Residential District R-3, Frontage, requirements, allowing the creation of a lot having 118.2 feet of frontage on a Class V road and 421.4 feet of frontage on a Class VI road. The decision was based on the fact that the applicant answered the conditions necessary for the granting of a variance to the satisfaction of the Zoning Board and their determination was that there will be no diminution in value of the surrounding properties. In addition, the Board determined that a hardship would be created if the Variance were not granted because estates do have to be settled. The motion was seconded by Mr. Barnard.

 

Hearing no further comments, Ms. Thoits called for a vote stating that a yes vote would grant Mrs. Mock and her sister a variance allowing them to subdivide their land and a no vote would deny that:

Ms. Hinnendael: Yes; Mr. Barnard: Yes; Ms. Mical: Yes; Ms. Joss: Yes, and Ms. Thoits said she would vote yes.

 

They Board reminded the Mocks that they now need to go to the Planning Board for the subdivision application process.

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Ms. Hinnendael made a motion to postpone the election of officers until the beginning of the May meeting. The motion was seconded and passed by a unanimous vote.

Conceptual Consultation

Peter Wyman – Pleasant Pond

Mr. Wyman:

· In the ordinance for the town, there’s an ordinance under Manufactured Housing that says that I can’t put any manufactured homes within 150 feet of a town road or another residence.

· 32 mobile homesites at the mobile home park

· 54 campsites at the campground

· A variance is in place that allows an additional 25 sites.

· I would like to remove 9 campground sites and put 3 mobile home sites in their place.

· The campers are now 70 feet from the town road

· Do I need a variance to put a mobile home 75 feet from a town road v. the 70 that is there now or the 150 feet as the ordinance states?

· The campers are old and the mobile homes will be new.

· The reason would be to change that section to the mobile home park

· As it is now, it is impossible to regulate who comes and out.

· The old campers would be moved to other sites and the mobile homes would be visible from the road.

· I will go from 54 sites to 45 sites and move the campers to other sites.

· I do have mobile homes that are 45 feet from the road in other sections of the park

· Is the pre-existing structure of the campers sufficient to put the mobile homes there?

Ms. Hinnendael said that she would like to see the plan laid out.

Ms. Thoits said that the fact that they’re not going exactly where they are now makes a difference.

Ms. Mical said that there is an ordinance that says that if you have a house that is already too close to the road, you can put an addition on that house as long as you don’t go any closer to the road. He’s actually going back 5 feet. In reality, there are mobile homes on that site that are 45 feet from the town road.

Mr. Wyman stated that he would like to put in brand new septic tanks and new leach fields to put these in. Presently, there are 11 lots that run off of one septic tank and one leach field. That is grandfathered in by the state. I would improve that by putting in new septic tanks and new leach fields. These would be doublewide mobile homes.

The campers are now 70 feet from the road. Do I need a variance to put the mobile home 75 from the road in the same place? I’d be removing 9 lots.

The Board discussed the difference between adding on to an existing structure and replacing old campers with new trailers. The Board felt that a variance would be the best way to approach this case.

Adjourn

A motion was made and seconded to adjourn. The motion passed. The meeting was adjourned at 10:45 PM.

Minutes approved: May 10, 2006