Members Present: Ted Young, Tom Stiles, Martha Thoits, Ken Klinedinst

Alternates Present: John Wallace, John Dabuliewicz, Martha Latuch

Members Absent: Martha Mical, recused from discussion of this appeal as in previous hearings

Alternate Absent: Joanne Hinnendael

Presiding: Ted Young

Recording: Judy Rogers

1. I. Open Meeting- 7:00 PM, Thurs. 06, 2000, Warner Town Hall, Lower Meeting Room
   
2. II. Roll Call - 4 members and 3 alternates present.
   
3. Review a Motion for Rehearing

from: R. C. Brayshaw & Co., Inc.

for : ZBA Case 6-00

Chairman T. Young stated that this was a meeting of the Zoning Board to deliberate the appeal of a decision of the board. He said voting members would be: T. Stiles, K. Klinedinst, M. Thoits, J. Wallace, T. Young and other members may join in the discussion. Chairman stated that M. Mical would remain recused as she had in the past hearing.

Chairman:

- read the application for appeal from R. C. Brayshaw & C., Inc.

- received 6/26/00 for the decision of the board made on 5/31/00

- explanation of appeal attached to application (copy on file)

Richard Brayshaw was asked to present his case. Mr. Brayshaw said his wife Fran would present.

Mrs. Brayshaw:

- read item 2 of the motion for rehearing

• The adjoining lot (the railroad bed lot) the applicant seeks to merge can not be used for allowed uses under the ordinances
• property is R-2 zone
• lot is not authorized as a valid building lot due to insufficient frontage, section 15B, Warner Zoning Ordinance, states: "A non-conforming lot may be built upon for residential purposes only if at the time of the enactment of the ordinance …..the owner owned no contiguous lot and the frontage is at least 50 ft. …"
• the 1974 zoning ordinance states the same condition
• frontage of the lot was less than 45 ft. at time of enactment of the ordinance
• board can not assume a variance would be granted to build a residence on the lot
• lot may not meet the variance tests
• thin lot, close proximity to abutter Wagner property, access easement over lot for Wagner and likeliness that Wagner will challenge granting of a variance
• not being able to be reasonably certain that a variance for a residence would be granted, the board should conclude the lot is sufficiently impaired by its physical configuration so as to justify a finding of a physical hardship with the land
• granting of the variance requested is appropriate because it will have minimum impact on the existing situation (the board having previously ruled it will improve the existing condition.) and is less intrusive than the alternative of granting a variance for a residence

- item 3: odd configuration of the lot prohibits it from sustaining a well (letter attached from Christopher N. Carley, A1A, of C. N. Carley Associates, Architects & Planners, 72 North Main Street, Concord, NH)

-Mr. Carley is the Chairman of the Concord ZBA, very knowledgeable about wells and zoning

- Mr. Carley looked at the site and the plans previously done by David Vincent

- item 4: existence of a septic system on the lot prohibits it from having a house situated on it (ref. Mr. Carley’s letter)

• applicant obtained approval to merge lots in April 1998 so as to allow for the construction of the septic system, therefore, it lawfully exists on the lot
• read a notice, April 13, 1998: "You are hereby notified that action of R. C. Brayshaw & Co. to merge lots 20 and 21, map 37, on Newmarket Road, Warner NH, has been reviewed and acknowledged by the Warner Planning Board."
• Notice from the Zoning Board, saying it discussed the chronological order of the Brayshaw merger: request made in April 1998 to merge lots, Merger brought to April Planning Board, discussed and accepted, filed at the Registry of Deeds on 4/15/98 (documentation on file)
• Merger was an issue of remand, board can agree or disagree on whether or not it was perfected
• The impact of the vote was shown that as a board they were in agreement regarding the perfection/lack of perfection of the merger as a board answering the question of the remand
• The motion was made that the ZBA recognize the merger of the lots as stated on the R. C. Brayshaw Voluntary Merger and registered as being perfected, and unanimously voted as perfected
• Brayshaws contend that whether it was for an addition or a State approved septic system for their convenience, the land was merged at that time of their actions
• Town created one lot through the merger and the Brayshaws were legally allowed to put the septic system on the lot
• Merger paperwork not done properly by the Town, but was still accepted by the Planning Board and Zoning Board
• Brayshaws feel it was the Town that put them in the situation they are in
• Did a timeline on the litigation: at the time of the septic installation, the ZBA had received a remand from the court and decided the land was merged
• Septic was installed before an appeal was made – there was no litigation at the time
• Superior court accepted the Planning Board recommendations, not discarding anything
• Brayshaws feel the hardship created was not self imposed

Item 5: no other safe way to locate the addition exclusively on the adjoining lot

• access to the public way from the side of the lot away from the railroad bed creates an unsafe condition
• Mr. Brayshaw had previously presented to the Planning Board, that the truck traffic would be backing up on the Brayshaw property, not Newmarket Road, with the proposed expansion
• Alternative, if any, would have the trucks backing onto Waterloo Road uphill – this can be shown if a rehearing is granted
• Trucks can not go to the back of the lot without infringing on Mr. Wagner’s land
• Do not see any other safe alternatives for a loading dock or storage area than that proposed

Item 6: applicant wishes to clarify any questions the board has on the merger of the lots

• applicant interprets the Superior Courts ruling as identifying the lot on which the station is located as being commercial in nature by virtue of its grandfathered status even though it exists in an R2 zone
• Court identified the railroad bed lot as residential because it is in an R2 zone and has not been previously a part of the grandfathered commercial activity on the printing business
• Therefore, the court considers a variance necessary for the railroad bed lot to be used in the printing business
• The commercial purpose proposed by the applicant is to have the proposed addition located partially on the railroad bed lot
• Court has ruled that it is necessary to obtain a variance to use the lot for commercial purposes
• Applicant has sought such variance by pending application
• Applicant interprets the courts order as assuming that if the Warner ZBA granted the variance, such decision would allow the Planning Board to merge the two lots
• Court recognized the non-conforming use under latches
• Best option to resolve the merger issue, is to request a variance to allow the court to recognize the merger of the two lots
• This is what the applicants seek

At this time, Mrs. Brayshaw asked if she could obtain a copy of a letter Mr. Wagner passed out prior to the opening of the meeting. (copy on file)

Mrs. Brayshaw continued her presentation referring to Mr. Carley’s letter:

• Mr. Carley contends that the lot does not have the minimum footage from property lines and leach fields and this is strong enough to be a single reason a residence can not be built on the railroad lot
• Mr. Brayshaw added that abutters are ‘antagonistic’ and would not be agreeable to giving permission for easements
• Not the job of this Board to say a variance can be granted in the future for a residence
• Board members may not be the same
• Brayshaws need a guarantee that future variances will be granted because building is in violation of the Town ordinances – there is not enough road frontage
• Mr. Brayshaw said it was highly prejudicial that a variance would be given

Chairman closed the presentation and opened the meeting to discussion of the board.

J. Wallace asked and was shown by Mrs. Brayshaw, the 1974 ordinance stating the frontage of a nonconforming lot for residential building must be 50 feet and current zoning states the same.

Chairman read the Notice of Decision, Case 6-00, 5/31/00:

M. Thoits said the presentation of a problem created by the location of the well, constitutes new evidence that the board should review. She said in order for the board to accept an appeal, the applicant must present new evidence not presented at a previous hearing.

M. Latuch said she had not thought about the timeline of events and the impact of the installation of the septic system in regards to the requirement that the hardship not be caused by the applicant. She said that the Brayshaws acted on the information they had at the time and should not be punished: they did not create the hardship themselves. She said she would like to see the timeline.

T. Young said the Brayshaws are correct in stating that at the time they built the septic system, they believed they had a legitimate merger

K. Klinedinst said he agreed with the introduction of the well as new evidence in addition to the leaching field.

T. Stiles said:

- board must consider: the original zoning ordinance required 150 ft. frontage on a residence and anything that was a lot prior to the original zoning, would have been allowed under a non-conforming lot

- "dimensional" requirements are different from "use" as stated by the supreme court

- to grant a use variance, an applicant must render the property unusable for any other reasonable purpose

- that is what the board is confronted with at this time, versus a dimensional variance, a much easier variance to contend with (45 ft. vs. 50 ft)

- the lesser amount of footage does not change the use of the property

- there is a distinction between dimensional and use issues

- the fact that it is a contiguous piece of property that currently has a well, would make it difficult to sell

- he can not create a use on the property – that is the responsibility of the applicant

- it is a residential lot and whether or not a building can be built on it is a need for a dimensional variance and he only knows the ramifications of that as stated by Mr. Carley in his letter

- there is a different requirement for a hardship for a dimensional set back and use change variance, from the Supreme court standpoint

Mr. Brayshaw said it was not up to the board to decide that. He said the railroad bed is a nonconforming lot and a nonconforming use has to return to its original use after 1 year. He said there was a period of time when it would have reverted back and it falls under the new dimensional requirement of 150 feet frontage.

T. Stiles said a use and a dimensional requirement are different in the way they are affected by the ordinance: a use would revert back to its original intended use for that district and dimensional requirements would revert back to the ordinance pointed out in Mr. Brayshaws request, if there was a building there, it was torn down and he wanted to build a new building.

Mr. Brayshaw said the well on the station lot can not be used for the other lot. T. Stiles said he is not saying that the well is an issue for the board, but, it not being the boards responsibility to check, he thinks there are other R2 district allowed uses for the railroad bed property listed in the zoning use table. (Warner Zoning Book, Use Regulation Table)

Tom Brayshaw asked T. Stiles who agreed, that any use for the railroad bed property would invoke objection from abutters which, Mr. T. Brayshaw stated, makes the outlook bleak that a future variance would be granted.

T. Stiles said the Brayshaws do not necessarily need a variance for a "use" on the lot, it can be used for other purposes stated in the zoning use table that list a "P" (permitted use) in the R2 column.

Chairman asked that members address the board and refrain from a debate of issues.

T. Young said:

- this began as a potential of the lot that the variance is requested to go onto

- Mrs. Brayshaw brought up the fact that the merger was nullified by Merrimack County Superior Court and registered at the Registry of Deeds

- believes the merger should not have been nullified but the only way to resolve the merger is to return to court and speak to the judge

- however, that time has past and the Brayshaws are requesting a variance

- a simple explanation of a variance is, "Denial of the variance would result in unnecessary hardship to the owner seeking it"

- reading from minutes of the 5/31/00 meeting, " T. Young said he’d like to suggest the board vacate from their previous decision to grant a variance because Mr. Brayshaw could build on the other side of the building remaining on the station lot.."

- the judge stated that the building was granted nonconforming use under latches

- trucks could be backed up to other side of the building even though it does no good for the abutters, the Wagner

- court agreed with the boards decision to allow an expansion: Mr. Brayshaw has a commitment from the court that he may add on without building onto the railroad bed lot

- variances are granted when there is no other recourse

- usually due to an inconvenience of the land

- if there was no way there could be anything built on another side of the building, the board would look better upon a variance for the railroad bed lot

- Mr. Brayshaw has stated on more than one occasion that he could build on the end of his building

- do not believe the nullified merger constitutes an unnecessary hardship

Mrs. Brayshaw asked where the loading dock would go? T. Young said there is a loading dock on the end of the building now. She responded that due to the property line, a loading dock would not fit there if the building was expanded in the back. T. Young said that Mr. Brayshaw had presented a plan that an expansion in the back could sustain a dock. Mrs. Brayshaw said that on closer inspection, now being careful not to infringe on the abutters property with what currently exists, there is no way for trucks to safely approach a loading dock if an extension were added there.

M. Latuch said the topic has strayed away from the original request for an expansion to the possible uses of the railroad bed lot. She said it is not the burden of the board to determine use of the lot but to decide if the addition may extend onto the railroad bed lot.

Mr. Brayshaw said trucks have to pull into the parking area now. Mrs. Brayshaw said they are trying to prove hardship and show evidence that there is no other use for the land while the board has said there are other uses for the lot.

T. Young said the basis for the hardship is not on the railroad lot, the Brayshaws can build on the station lot. Mrs. Brayshaw asked about the truck traffic safety issues of doing that. T. Young said there previously was stated that there was room for a 16 ft building.

M. Latuch asked to be shown on the map, where the loading dock was and Mr. Brayshaw was asked to step forward to the table and point out that location.

John Brayshaw said that they want the building to look cosmetically pleasing, to remove the containers and to be uniform with the area since they take pride in the building. He said there may be different options, but they want the building to be aesthetically pleasing, lessen the interference with neighbors and keep trucks in the front of the building away from the closest abutter, the Wagners

Mr. Tom Brayshaw explained that with an extension in the back, trucks would need to turn around and back down the road where now they can turn around in the parking lot behind the building.

Paul Proulx asked for a point of order: How can they listen to an argument when the RSA allows discussion on the points that are lawful and unreasonable in the motion. He said it is not the purpose to re-discuss the entire case.

Members reviewed the building/property map and alternatives of building elsewhere on the current building while staying on the station lot.

J. Dabuliewicz said he was not sure the statement in Mr. Carley’s letter that a well is required to be 75 feet from a property line, was correct. Mr. Brayshaw said that approval from your abutter is required if it is within 75 ft. Mr. Dabuliewicz said there is a septic distance requirement but he would check the other requirement.

T. Young said he did not think there was any regulations that said a well could not be located on another lot. He said the board has been called upon to grant a variance and a condition of that is proving that denial of the variance would impose unnecessary hardship on the owner seeking it. He said it can be contingent on a financial situation only that no other portion of the property can be used for the project.

Chairman stated to the Brayshaws that a previous hearing about locating a caboose on the property was not relevant here.

K. Klinedinst said that the decision of 5/31/00 stated that the lot could be used for other purposes but asked if any suggestions were offered. T. Young said he believed that suggestions were made that it could be built on but will now agree that the lack of sufficient frontage for the railroad lot was evidence the board overlooked.

K. Klinedinst said he sees the abutters appealing that the lot can sustain a house while the Brayshaws appeal because they disagree. He said he is not sure that that would not be the pattern every time the Brayshaws came to the board with a request. T. Stiles said each request needs to be dealt with individually.

K. Klinedinst said that although the appeal is based on the opinion that a house can not be built on the lot, the denial of the variance was based on the fact that there are other allowed uses for the lot. T. Young said in order to grant a variance, the lot would have to be proven to be not uasable for any other intended use. He stated parking as an example of a use.

M. Thoits said it could not be used for parking because that would be the same as adding the extension. She said she does not know what else the lot can be used for.

K. Klinedinst said according to the zoning use table, an auxiliary building or shed is an example of an allowed use.

T. Young said the board has stated that there will be no further building upon the property other than what the board originally allowed. Members stated that stipulations were overturned with the judge’s decision and the board denying the variance. T. Young said the board is holding to the judge’s decision that the Brayshaws may build onto their building, no stipulations as to the location. He said the decision to not allow further building, would hold. He said on the proposed expansion, there was square footage stated and if Brayshaws build in another location, he was not sure the board could hold them to that square footage.

T. Young said Mr. Brayshaw has stated previously that he could adequately build on the end of his building to accomplish his goals. He said that is an issue because a variance is granted and hardship is proven when there is "no other alternative". He said the Brayshaws were given permission to build from the court.

M. Thoits said that the Brayshaws are saying now, in their application for a rehearing, that building in an alternative location would create loading, unloading and truck difficulties.

T. Young said the Brayshaws have also stated that building in an alternative location would further disturb the close abutter, the Wagners. He said the board has stated at previous hearings that an alternative location would not be the best for the Wagners but Mr. Wagner has stated that he did not mind that and has appealed.

M. Thoits asked if the trucks would have room to be driven in and unloaded if the Brayshaws build in another location on the station lot. T. Young said that they are being unloaded currently. M. Thoits asked if that could still occur if an extension was added. She said the inability to move trucks in and out of the property, creates a hardship.

Mr. Brayshaw pointed to the current loading dock on the plan and the truck route to avoid passing on Mr. Wagners property. He said he parks a minimum of cars in the back parking lot to allow the trucks to turn around.

Mr. Proulx called for a point of order: The meeting was scheduled to discuss lot 20, the discussion has changed to lot 21 and the topic should stay on track.

T. Young reminded the audience this was a discussion of the board members.

J. Dabuliewicz said in the annotations of the statute regarding a variance, the supreme court has said, "The criteria for unnecessary hardship to warrant the issuance of a zoning variance was not the uniqueness of the plight of the owner, but the uniqueness of the land causing the plight," He said the board is getting off track when it discusses the difficulty of using the station lot and not whether a variance should be granted for the other lot to allow the addition to be built on.

T. Young said that in discussing the station lot, they are discussing the hardship and the need to move the addition onto the railroad lot. J. Dabuliewicz said the judge’s decision holds despite the opinion that most people think he did not decide correctly about the merger. He said the fact remains that no one appealed the judge’s decision.

Mrs. Brayshaw asked why the Town did not appeal the decision since the judge was overturning a decision of the board. T. Young said that the Brayshaws had the opportunity to appeal.

Calling for and hearing no further discussion from the board, Chairman called for a vote. He said a "Yes" vote was in favor of rehearing, a "No" vote was to not rehear. He stated that if the applicant is denied a rehearing, being the aggrieved party, may appeal to Merrimack Superior Court. He said he did know the recourse of the abutters and suggested they consult their attorney.

Calling for a vote:

M. Thoits: Yes J. Wallace: Yes T. Stiles: Yes

K. Klinedinst: Yes T. Young: No

3. Communications and Miscellaneous

After discussion, members decided to retain the current clerk as their zoning clerk.

Motion to adjourn. Seconded. All in favor. Meeting adjourned at 8:30 pm.

__________________________________ Minutes Accepted.