Town of Warner – Zoning Board of Adjustment

Minutes of the Meeting and Public Hearing

  Wednesday, July 14, 2004 7:00 PM

Warner Town Hall , Lower Meeting Room

Members Present:           MarthaThoits, Martha Mical, Joanne Hinnendael, Evie Joss

Members Absent:            Kenneth Klinedinst

Alternates Present:          John Howe, Alice Chamberlin

Alternates Absent:            None

Presiding:                           Martha Thoits

Recording:                          Sissy Brown

I.                   Open Meeting at 7:05 p.m.

II.                Roll Call

III.             Approval of the Minutes of the April 28, 2004 Zoning Board meeting.

A motion was made and seconded to approve the minutes as corrected.  The motion passed by a unanimous vote.

Approval of the Minutes of the May 12, 2004 Zoning Board meeting

A motion was made and seconded to approve the minutes as corrected.  The motion passed by a unanimous vote.

IV.              Case 01-04:  Special Exception

Sailer & Hale Enterprises, LLC, 99 Mason Hill Rd. , Warner, NH 03278, requests a Special Exception as provided in Article XVII, Sec. C of the Warner Zoning Ordinance

Location of Property:       North Road , Map 14, Lot 18-1  C-1 zoning

Purpose:   Single family residence

Voting:  Evie Joss, Martha Mical, Joanne Hinnendael and Alice Chamberlin in place of Ken Klinedinst

Mr. Sailer said that the request for Lot 18-1 is similar to the request, which was granted, for a Special Exception for Lot 18 approximately 4 months ago.  The lot is 2.7 acres and the one next to it [ Lot 18] is 2.48 acres.  This would maintain the integrity of the road, which is primarily residential. 

Ms. Mical:  The one concern I have is that Lot 17 is the old town dump.  If we were to grant this, I would certainly require that we have legal documentation stating that the town is not liable for any contamination of anything on that lot.

It was stated that the dump was an all-purpose dump.  One opinion was that it was closed in the late 1960’s, and someone else disagreed, stating that it was in the 1980’s.  Ms. Chamberlin asked if there was any monitoring of the property, and Ms. Mical said that she thought that there might have been some wells, possibly in the vicinity of the current Market Basket grocery store. 

Ms. Chamberlin said that the term for the document is a Waiver of Liability.  Ms. Mical wants the Waiver of Liability in place and signed before final approval is given. 

Mr. Sailer:  Who would be responsible for having this drawn up?

Ms. Mical:  If the Town Attorney does it, you’re probably paying the bill for him to do it.  If your attorney drew it up, I’m sure our Town Attorney would want to look at it before it is agreed to.

Ms. Hinnendael:  Does anyone have any concerns about this road that looks like it goes into this property?

Mr. Sailer:  How come when we agreed on the boundary lines between Lots 17 and 18, it [the Waiver] wasn’t addressed then?

Ms. Mical:  Personally, I didn’t think of it until this afternoon.  I remembered that we had a dump up there some place. 

Ms. Joss:  The lot we approved before had this lot between it and the dump.

Ms. Mical:  What are you looking at that is a road?

Ms. Hinnendael:  It is shown on the map, and it says “dead end road.”

Ms. Thoits:  There was a road that went into the dump.  Is that it?

The Board looked at the map, and Ms. Mical asked Mr. Sailer where he came up with the information that it was a dead-end road.  Mr. Sailer said it came from the surveyor that surveyed the lot.  He had found it.  There was discussion about what the road might have been.

Mr. Sailer said that he would have his attorney draw up a Waiver of Liability for the Town’s Attorney to look at.  Ms. Mical said that she didn’t have a problem with that.  Mr. Sailer asked for guidance as to what the Board wanted, and Ms. Mical stated that she wanted something stating that says that the Town is not going to be liable if the well is contaminated or if the ground is contaminated at any time, or if anything else is contaminated up there – now and in perpetuity.  Mr. Sailer agreed.

Ms. Hinnendael:  Do they have to show the slope of the property when they get a Building Permit?  Do they have to show how close they are to Stevens Brook?

Ms. Mical:  On a Building Permit, if Stevens Brook is on their lot they would have to show it on their diagram/plot plan.

Ms. Hinnendael:  Because they have to be a certain distance from the brook.

Mr. Sailer said that it is approximately 250 feet from the house to the brook.

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

Hearing no abutters or any members of the public, the Public Hearing was closed and the Board meeting was reopened.

Ms. Mical made a motion to approve the application for a Special Exception to put a residence on Map 14, Lot 18-1, C-1 zoning with the condition that prior to starting construction, a Waiver of Liability will be received from the applicant and will be recorded at the Merrimack County Registry of Deeds.  The Waiver will be prepared by the applicant’s attorney and reviewed by the Town’s attorney before it is signed.

Before the motion was seconded, Ms. Thoits asked that Mr. Sailer and Mr. Hale read their answers to the conditions for a Special Exception, which must be met:

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.

Yes – Special Exception.

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

Residential use is requested and desirable to maintain the integrity of an area that, although it is zoned C-1 [commercial] is a majority of residences.

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

Residential use of this lot will not impair the integrity of the district.  It will enhance and maintain it.

D.  N/A

The motion was seconded by Ms. Hinnendael.  The motion passed by a unanimous vote. 

V.                 Case 09-04 [previously assigned 05-04 in error]: Variance:

John A. Kelley, Jr., 16 Depot Street , Warner, NH 03278

Property Location:  16 Depot Street , Warner, NH Map 31, Lot 7, C-1 Zoning [Ms. Mical said that it is located in the Business District, not the Commercial District]

Purpose:  To install a temporary carport on the parking lot

Ms. Chamberlin recused herself because her husband owns property abutting the property in question.

Ms. Thoits stated that those voting would be Ms. Joss, Ms. Mical, Ms. Hinnendael and Mr. Howe. 

Mr. Kelley said that the property is located on the corner of Depot Street and Kearsarge St. extension.  The property houses the Laundromat, and has two apartments on the second floor.  One of his tenants has health problems and they were made worse last winter by having to clean the snow off of his car, which resulted in his being incapacitated for two weeks.  He wants to put a carport in the parking lot for his tenant, and anyplace he could place the carport would be within the setbacks for the land.  So he is asking for a variance to the setback regulations.  The carport would be covering two parking spaces.

Mr. Kelley said that his first idea was to put a truly temporary structure, but then he got some brochures for carports that would be more aesthetically pleasing.  He showed two different design ideas to the Board. 

Ms. Hinnendael stated that there is an RSA that accommodates this situation; accommodating a handicapped person.  It is RSA 674:33.  The RSA states that the variance shall survive only so long as the particular person has the use of the premises.  Isn’t that what Mr. Kelley is asking for?  

Ms. Mical:  But I would not want to grant a variance on the condition that the carport has to be removed if something happened to Mr. Kelley’s tenant.   I would rather grant a permanent variance and not a temporary one based on the RSA.  No offense to Mr. Kelley, but he is getting older and if, in 10 years, Mr. Kelley can benefit from the carport it would be good to have it in place for his own use.  He is asking for a temporary structure, not a temporary variance. 

Mr. Howe:  Are there any other tenants?

Mr. Kelley:  I occupy the other half of the building.

Mr. Howe: Will there be any jealousy involved?

Mr. Kelley:  No.  My automobile will be outside of the carport, just as it has been for the last 20 years.  There is no jealousy.

Ms. Thoits asked Mr. Kelley to answer the conditions required for the granting of a variance.

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

I strongly feel that it would not devalue any surrounding properties, since it will be new and the upkeep will be our first concern because it will be in full view of our living area.

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

I believe that granting me this variance will not be contrary to the public interest since it will hardly be seen from the adjoining properties because of the hill, the trees and the bushes around it.

C.  Denial of the variance would result in unnecessary hardship to the owner seeking it. [The undersigned alleges that the following circumstances exist which prevent the proper enjoyment of his land under the strict terms of the Zoning Ordinance and thus constitutes an unnecessary hardship.]

I find an unnecessary hardship since there is a lack of land to place a structure of this nature on, after allowing for the setbacks in this area.

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

In addition, by granting this variance a justice will be done for a longtime Warner resident who is a handicapped senior citizen who will be granted the use of this facility.

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

The use will not be contrary to the spirit of the ordinance for several reasons:  It is only a temporary structure; it is for a worthwhile cause, giving aid to a longtime Warner resident who is handicapped; and it will not devalue surrounding properties in the area.

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

Ms. Chamberlin:  Will there be any cutting of trees on the property?

Mr. Kelley:  No.

Ms. Chamberlin:  Will the carport now no longer be a temporary structure?

Mr. Kelley:  I’m asking for some latitude for the structure.

Ms. Chamberlin:  The only problem I have with this is that I’m not sure the Board would want to find hardship in this situation – I don’t know that it meets the hardship test, and that’s why that provision is in the zoning, so that you don’t have to find hardship.  In this situation I actually think that it is a good thing in terms of allowing this kind of construction in these circumstances.  I don’t have any objections as an abutter and I don’t have any objections to a final approval. 

Ms. Thoits:  It is part of the reasonable use of his property.  He can’t put it anywhere else, and we certainly wouldn’t want him to put a structure like that out in the parking for the Laundromat because you need parking spaces for business.  He doesn’t have room, so that is a hardship for the reasonable use of his property.  That is an allowable hardship.

Sharon Nicosia:  I think that it is a noble thing that he is doing.

Hearing no further discussion, Ms. Thoits closed the Public Hearing and reopened the Board meeting.

Ms. Hinnendael made a motion to approve a variance for the installation of a 2-car carport.  The motion was seconded by Ms. Joss and passed by a unanimous vote.

VI.              Case 06-04:  Variance

Albee Realty Trust, c/o Parker Albee, Jr., 9 Baysite Lane , Falmouth , ME 04105

Property location:  155 +/- acres near Badger Hill Road, North Village Road, Map 9, Lot 44, R-3 Zoning

Proposed Use:  Physically separate lot into 2 lots of approximately 100 acres and 55 acres.  For beneficiaries of the Albee Realty Trust to own outright title.  Applicant realizes that property is on a Class VI road, and a building permit is not sought

Mr. Ed Waters, attorney for the Albee Realty Trust, was at the meeting representing the Albee Realty Trust. 

Mr. Waters:  This is an unusual situation.  Parker Albee is a longtime friend of mine.  Over the years, he acquired a great deal of property and eventually it was put into a trust.  About three years ago, about 300 acres of that property was sold off.  What is remaining in the trust is approximately 155 acres.  The beneficiaries of the trust are Mr. Albee’s children.  Although he is still alive, they own almost all of it.  Two of them – Parker and his brother Richard – would like to keep this property as property; not have it sold and converted to cash.  They would like to keep it in the family and what they wanted to do is to see if it could be subdivided into two lots.  Earlier this year, we did a conceptual consultation with the Planning Board for this very reason, and at the Planning Board it was determined that they couldn’t consider a subdivision because by definition, the lots would be on roads that can’t be built upon – this is a Class VI road.  They said that we would have to come to the Zoning Board and get a variance.  That’s why we’re here.  What they want to do is to keep it as-is.  There are no plans to build upon it or request a building permit.  They couldn’t get one anyway unless the town waived the rules.  They simply want to physically subdivide it so that they can pass it along to members of their own families.  It is an unusual situation.  The Planning Board said that we need to get a variance before we can come back and talk to them, and if we don’t get a variance then I guess that ends the process.  I told them, as an attorney, that the two people could have gone a different route and petition for partition as heirs, and that there would be no problem with that – it would be granted by a probate court.  But that brings up the same problem of a possible conflict between the town departments and probate courts. 

Mr. Mical:  If a court orders it, we obey. 

Mr. Waters:  That may be, but we made a decision and they said that they’d rather come to the town directly.  Mr. Albee and his sons have walked the land, and it has been a passive use at best. 

Mr. Howe:  Point of clarification.  Are we talking about two brothers?

Mr. Waters:  Yes, we are.

Mr. Howe:  And each would own a parcel individually – is that the point?

Mr. Waters:  Yes.

Ms. Chamberlin:  I’m not that familiar with the property – was the 300 acres that was talked about earlier part of this?

Mr. Waters:  It was a separate lot.  They were contiguous, and it didn’t require a subdivision because it was separate.

Ms. Chamberlin:  And is that still in the family?

Mr. Waters:  No, it was sold in 2001.

Ms. Mical:  And the town now has a conservation easement on it.  It is now owned by Duncan .

Abutter Bunny Van Valey:  (Showing a map to the Board):  We have a problem in that it was noticed as Badger Road rather then Gould Road .

Mr. Waters:  That was my mistake.

Ms. Van Valey:  There are abutters on Gould Road that have no idea about this hearing.

Ms. Thoits:  You should only be speaking during the Public Hearing portion of the meeting.  Thank you for showing your map, but we’ll save that until the Public Hearing.

[The audience was talking about the property and the map, and Ms. Thoits had to ask that they sit down and said that the meeting couldn’t be conducted with the people talking.]

Ms. Thoits asked the Board if they had any additional questions, and Ms. Chamberlin said she would ask her questions after the Public Hearing.  Ms. Thoits asked Mr. Waters to read his responses to the conditions that must be proven in order that a variance might be granted:

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

The present use of passive recreation would be continued by the applicant and no activities or uses are contemplated which would diminish the surrounding properties.  There would be not development of the property.

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

The public interest in R3 zones is to promote low density occupation inasmuch as there is no anticipate building activity and the matter is one of division of title.  The application would not be contrary to the public interest.

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

The applicant wishes to create sole title to two separate large tracts of land so that title could be perpetuated in the Albee family.  No change in use is contemplated and the application is a request for reasonable use.

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

By granting the variance, the Town would allow for members of the Albee family to perpetuate separate ownership of two tracts and perpetuating a use which presently exists.

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

The use would not be contrary to the spirit of the ordinance as no change is contemplated.  The variance is sought because the Planning Board has indicated that it could not grant approval on lots on a Class VI highway without a variance.

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

Abutter Barberie Van Valey (Bunny):  I live at the end of the road.  I think that it was very confusing to talk about Badger Road since that is the extreme end of the old road.

Mr. Waters:  That was just pointed out to me, and I confess my ignorance.  I guess Gould Road would have been a more proper designation.

Ms. Van Valey:  Yes, and it probably would have brought more people. 

Mr. Waters:  If it is the sense of the Board to table this, then I would certainly want the people who are entitled to get notice are noticed and heard.

Ms. Barbie Van Valey:  May I ask how they intend to get to the property?

Mr. Waters:  Well, it does abut Gould Road .

Ms. Van Valey:  Yes.

Mr. Waters:  I assume, but I don’t know for sure, that it is accessible by automobile.  If it isn’t, then they’ll walk in.  They have used it historically like I said – to walk on the property, have picnics there, and it is a very occasionally use.  I assume that it is accessible by car, but if it isn’t then they’ll walk in.

Ms. Van Valey:  It is a long walk.

Mr. Waters:  That’s their problem.

Ms. Van Valey:  I’m just very concerned that there aren’t more people here tonight.  We didn’t learn about it in enough time to call around to everyone that abuts the property and find out what their feelings were.

Mr. Waters:  Like I’ve said, it was a mistake and a mistake made in good faith.  I will abide by the sense of the Board if they feel that the abutters on Gould Road should be notified.  I did the best I could, but I take your point. 

Ms. Mical:  I want to clarify one point – all of the abutters were notified by certified mail.

Ms. Van Valey:  Yes, I know, but we spoke to several and because it said Badger Road , they said, “Oh, well, that’s the other end,” so it really was very confusing.  It wasn’t clear.  I don’t know who wrote that, but…

Secretary:  It came off of the application.

Mr. Waters:  I wrote that.

Ms. Van Valey:  There is no such thing as Badger Hill Road .  I guess my only question is whether any of these people realized because of the designation rather than Gould, whether that is something that we should consider.

Ms. Mical:  We’ll take you comment.

Ms. Barbie Van Valey:  Does it show on a plan where it is going to be divided?

Mr. Waters:  [showing a map] This was done a while back and rather conceptually.  If the Board were to grant a variance, then we would have to prepare a detailed map and have a survey done to present to the Planning Board.  It might be 60% and 40% between the brothers.  It hasn’t been done with precision.

Mr. Howe:  Then how did you arrive at this division?

Mr. Waters:  I believe that a long time – years ago, before I became involved – the land was surveyed by Bob Bristol. 

Ms. Joss:  The map is dated 1981.

Ms. Barbie Van Valey:  I made this map at the library, trying to show all of the people around it.  The road goes right in front of our houses. 

Abutter Michael Amaral:  I live at 5 Gould Road .  We abut the property directly to the east.  It is a very significant piece of property in the Mink Hills. It has some of Waldron Hill and some great views.  It also is very ledgey and most of it is probably not suited for development.  It is hard to know how to feel about this proposal because even thought the stated intention now is to not develop the land, I assume that the Albees are not held to that and that in a year or two they could come in with a request to upgrade the Class VI road and follow that with a request for a building permit for residential development.  So it seems harmless on the one point, but it could be the precursor to future requests that I would be greatly opposed to.  So I would just like the Board to take those concerns into consideration.  I personally have never seen the Albees on the property.  If they’ve visited recently, I’d be surprised. 

Mr. Waters:  I don’t believe they have.  And that dovetails into what I was telling the Board.  All I can say in response is that isn’t their plan.  The road is a Class VI road and you correctly point out that the property is not amenable to development and they don’t want to develop it.  Assuming that three or four or five people down the road that it might be sold to wanted to do that, all of the town’s safeguards are here.  But what I’m doing and what I put into the application that was signed by Mr. Albee is that they just want to physically subdivide it so that they can pass it on to their children and they have no intention of developing it.

Mr. Amaral:  It would certainly add certainty, like some of the adjoining properties, to have a conservation easement on it.  Then abutters would certainly know that we’re not facing a possible development issue should the property change hands. 

Barberie Van Valey:  I know that there is a significant historical site right in the corner where it was split from the Davis farm, and I know that Rebecca [Courser] has put them on the GPS map.  There is quite a significant to that particular road because it is one of the earliest roads in Warner.  One of our houses would be run over if they wanted to develop it.

Ms. Mical:  But they could access it from the other end.

Ms. Van Valey:  They could, but it is a significant worry.

Ms. Mical:  I think that your point is that to widen or improve the road would cause damage to your property.

Ms. Van Valey showed a map she brought from the Historical Society and Library showing an historical cottage that is located on the property adjacent to the property in question. 

Abutter Lori Terwilliger:  As an abutter, it sounds like a perfectly reasonable request to want to subdivide and pass the land on to heirs. I know that the Mink Hills is an area that the town has identified as a place to keep as open conservation for the benefit of the town and that keeping it in open conservation makes sense as the town grows and other areas become more developed.  So I want to say that in light of thinking of the Mink Hills and keeping it whole, my main concern is that this separation sounds very reasonable – it is his land and he has been very generous; it’s not posted and anyone can go up there and hike and ski and snowmobile and whatever – so he has kept it open for the community.  But I’m just wondering about the future.  It doesn’t seem to be a good idea to encourage development up in that area that we have identified as the logical place to keep for conservation.  If the zoning were to be changed in the town and they subdivided and say that they wanted to build, would they be subject to the new zoning ordinances?  If, say, it changed from R3 to something else?

Ms. Mical:  Yes.  If they had not applied for a Building Permit, then yes, they would be subject to the new requirements.

Ms. Terwilliger:  Thank you.

Sarah Allen:  I’m on the Conservation Commission.  We talked about this today, and I think that my primary concern, as others have stated, is that on the surface it does seem like a simple subdivision, but there are issues associated with allowing subdivision on a Class VI road and what that precedent that might set for the future.  And because it is in the Minks, what that might mean for the Minks.  That area is a high priority for the Conservation Commission and one of our primary goals is to control development there. The Conservation Commission’s main concern is that if you allow a very large subdivision in the Minks today, it is going to make it more difficult to control any size subdivision in the future. 

David Hartman:  I’m not sure that it passes the hardship question.  I would think that the Board would want to look at the meaning of hardship, and that is that it is principally a physical hardship to the development of a piece of property.  We saw that in the previous application from Mr. Kelley, saying that it was a physical hardship because you couldn’t put a carport on the property without encroaching on the setbacks and that it was actually a hardship for the occupant in order to actually continue to occupy that dwelling.  In this case, it is a hardship that is connected to a theoretical – actually, it’s not theoretical because in order to pass on to heirs, they wish to have a parcel subdivided.  To me, that doesn’t qualify as a physical hardship to the property.  It is a wish that they want to happen, and in my view that doesn’t meet the standard of hardship.

Mr. Waters:  Briefly, I would have agreed before the Simplex case came up a few years ago.  In that case, they court directed the Boards to give more of an emphasis towards reasonable use of property.  In this case, I’ll concede that this is a very unusual case and there is no really physical or topographical such as was developed in case law in the past.  If it weren’t for the Simplex case, I probably wouldn’t be here at all.  But in light of that, the Board can consider reasonable use in the hardship context.

Ms. Joss:  It would seem that they could still enjoy a reasonable use of the property whether there was line in one place or another, right?

Mr. Waters:  Well, the use won’t change and you’re right – the use that they contemplate by owning a separate tract is the same as the use that they have put it to now and that they will put it to in the future.  It may be wordsmithing, but the hardship would be to physically segregate it so that they can pass it on to their heirs even though there is no change of use contemplated.

Ms. Barbie Van Valey:  It is zoned R3?  Which means 250 feet of road frontage?

Ms. Mical:  Yes, on a Class V road.

Ms. Van Valey:  Right.  So if by some chance they can go from this step to the next step, there could be ten house lots there and the town would end up having to maintain a road; make a road, and it seems that if you divide it now it has the potential of being divided again.  It’s just like the guys whose acreage is a little bit short but they get a variance.

Mr. Hartman:  I would think that, unless the Board already knows all about the Simplex decision, it would be a good idea to look at the Simplex decision and see if it actually applies in this case because again, I don’t see the hardship.

Ms. Mical:  Ms. Chamberlin, being in the legal field, knows about the Simplex decision, and I believe that the rest of us – maybe with the exception of Mr. Howe – happen to have been around when it happened, so we had the information at the time when the game changed.

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

Ms. Thoits stated that those voting on this application would be Ms. Mical, Ms. Joss, Ms. Hinnendael and Ms. Chamberlin.

Ms. Chamberlin:  The first point I’d like to make, which I think that everyone is aware of, is that not withstanding the points raised in the application, there is absolutely no legal point here that would keep them from coming back for a different use of the property or further subdivision.  So the fact that words like “in perpetuity” are used does influence our decision because it’s not binding, and I think that the public has pointed that out as well.  If I could ask the applicant, do you have any sense of the Albee family’s relationship, in terms of do these brothers communicate?

Mr. Waters:  Oh, yes, very much so.  What they are trying to do, and there are other assets in the trust and Mr. Albee has other sons – two of the Albee children would prefer to liquidate it and have cash.  Parker Jr. and his brother Richard would like to keep this in specie, and if that happens and they can keep it then there would be an internal credit with some other assets.  So they want to keep the value of this as land.  The two of them that want to do this, and the reason I’m here – in fact, all four of them get along – but these two for their own reasons would like to keep it in the family and keep it as land rather than sell it to someone else.

Ms. Chamberlin:  So one of the parcels is potentially going to be sold, once it is subdivided?

Mr. Waters:  Well, they aren’t sure.  There are two brothers who wouldn’t mind that happening and whatever cash is realized just divide it.  The two brothers – Parker Jr. and Richard – would like it to keep it.  Not as a memento, but because they like the land and though they don’t come here often they would like to keep it in the family. 

Ms. Chamberlin:  I haven’t been out there in a long time.  It is steep?

Mr. Waters:  It is pretty ledgey.  One of the reasons that it was kept out is that it had no value for timber.  Parker Sr. told me that it was pretty rugged.  He also told me that there were pretty views there.  Parker Jr. told me that he has hiked there with his son and said that it was quite pretty. 

Ms. Mical:  Right now, I’m not in favor of setting a precedent of subdividing on a Class VI road.  I’m very reluctant to set that ball rolling.  I understand their situation and we would certainly abide by a court’s ruling if you choose to go that route.

Ms. Thoits:  I tend to agree with Mr. Amaral and Ms. Terwilliger in that even though they don’t plan to anything, but down the road those heirs could say, “Hey, I’d like to build a house up there.”  That is why the state made this RSA that we can’t build on Class VI roads.  I don’t think it is the best idea.

Ms. Joss:  Do we have to make a motion to not grant the variance and vote on that?  Or does the motion have to be to grant the variance and then have it voted down?

Ms. Thoits:  No, we can make the motion to not grant it.  You just have to be specific as to why.

Ms. Joss made a motion not to grant the request for a variance because the application doesn’t meet the standards for hardship.  The land can still be enjoyed.  If the estate has to be settled, it can be settled through the courts.  Ms. Chamberlin seconded the motion.

Ms. Thoits said that she also felt that the request does not meet the spirit of the ordinance, because the ordinance is not to allow subdivision on Class VI roads and not to allow building on Class VI roads.  Ms. Joss agreed to amend her motion.

Ms. Thoits stated that a Yes vote denies the variance and a No vote grants the variance.  Votes: 

Ms. Joss: Yes; Ms. Hinnendael: Yes; Ms. Mical: Yes; Ms. Chamberlin: Yes.  The request for a variance is denied.

VII.           Case 07-04: Variance

Sharon Nicosia & Carrie DeBell, 254 Brown Road , Warner, NH 03278 request a Variance as provided in Article XVII, Section B of the Warner Zoning Ordinance.  Map 11, Lot 29, 254 Brown Rd. , R3 zoning.  Proposed Use:  Use of cottage on property as possible part-time seasonal rental.  2 permanent residences on 1 lot.

Members voting on this application:  Ms. Joss, Ms. Hinnendael, Ms. Chamberlin and Mr. Howe

Ms. Nicosia:  This is our 13^th month in Warner and we’re so happy to be here.  It’s a wonderful town, and it feels like home to us.  I don’t know if you’re familiar with the property, but it is the old Voight house, formerly owned by Ben Brayshaw.  When we made an offer to purchase the house in April, we were under the understanding that the cottage on the property could be used as a rental property or guest house.  Under that assumption, we paid probably a little bit more than we wanted to because we thought that was a possibility for us.  We came to see Martha [Mical] because we were having problems with the septic system at the cottage – it has a holding tank that fills up with water all by itself.  We knew we had a problem when we first purchased the property because the former owner decided that in the spring he put an outlet pipe into it to let it drain because he didn’t want to have it pumped prior to selling the property.  We had a septic person come out and he said that we needed to plug the hole and fill the top.  We did all of those things that needed to be done.  No one had lived in it; it was vacant all winter, and this spring it filled back up and we had to have it pumped.  So I came in to Martha to see if she had any septic plans.  The only record was for the house.  I called the state and there was no record for the cottage.  So we were under the assumption that the septic holding tank was just put in, but we don’t know that for sure.  The septic man said that we really need to put in a leach field, and that it was very unusual for the state to give a permit to put in only a holding tank, especially in the location where it is, and that a leach field would be more environmentally safe and better for the long time use of the property.  Then Martha said, “You can’t rent it out to anybody because you can’t have two residences on one lot.”  We had no idea.  The next day we were having the engineer come in and dig a test pit for the leach field.  So we put everything on hold, and here we are.  We love the tranquility of the dead end Brown Road and wouldn’t want to do anything to jeopardize the tranquility of that area.  But we had the idea that the cottage could be used as a seasonal getaway for teachers – we’re both teachers and we know how important it is during those vacations – summers and weekends – to get away and we thought it would be a very tranquil and peaceful place for teachers to get away.  You have a wonderful restaurant, a book store, some hiking and skiing.  We thought that it would be a very good thing for the community – to promote the tourism in Warner and for us to offer some peace and quiet for others who enjoy the country life.  The only other thing; and we spoke to Martha about this – we really don’t have any intention of having someone living there on a permanent basis because we like the tranquility of where we are.  The only exception would be that, God forbid, if a relative were sick and we needed to offer them a place to live we could offer it to them.  The cottage has a full kitchen and bath, and is probably just under 500 square feet.  As you know, the septic system presently doesn’t work.  We don’t want to put $3,000 to $5,000 into a leach field if we can’t use it other than to have family sleep there.  So that is why we’re here to ask for a variance.  There is a loft bedroom and a living area.  We’ve gone on vacations before, up in the White Mountains , and this cottage is much better than some seasonal cottages that we’ve rented to get away from it all, and it offers a very peaceful setting and we think it would be great.

Ms. Nicosia passed pictures around.

Ms. Mical:  A little bit of information:  What they keep calling the cottage is the original house that was built when he came to Warner.  He lived in it until he built what you and I would call the real house.  So for probably 20 years, the cottage was the potting shed.  It was not until Mr. Brayshaw owned the property that it suddenly became a cottage again. 

Mr. Howe:  With a holding tank.

Ms. Nicosia:  Yes.

Mr. Howe:  The Brayshaws are awfully good with holding tanks, aren’t they?

Ms. Mical:  No comment.

Mr. Howe:  Exactly.

Ms. Chamberlin:  Could I get some verification and guidance as to where we are on the use tables, and what people’s recommendations are in consulting our ordinances?  I’d like some guidance here.

Ms. Mical:  What they’re asking for is a variance to Article IV – the one that says you can’t have two residences on one lot. 

Mr. Howe:  But you can, according to the Selectmen’s letter here.

Mr. Mical:  No, the Selectmen’s letter says that it can’t be rented out. 

Mr. Howe:  But it doesn’t say that you can’t have it.  It does not say that.  It gives these ladies exactly what they paid for.  It says it right here.

Ms. Mical:  But they want to rent it out.

Mr. Howe:  But they don’t want to rent it out.

Ms. Thoits:  Yes, they do.

Ms. Nicosia:  We do want to rent it out.

Mr. Howe:  Seasonally.

Ms. Nicosia:  Yes, seasonally.  But not full time.

Mr. Howe:  But does it way you can’t rent it out here?

Ms. Nicosia:  It says “guest quarters” and that’s not quite the same thing.

Mr. Howe:  It says here that it’s not to be used as a permanent residence and it says guest quarters.  Well, that’s paying guests.

Ms. DeBell:  The interesting part, too, is that when we bought the house…

Mr. Howe:  It seems to me that this whole thing is grandfathered, right here.

Ms. DeBell:  … there were two mailboxes there, which led us to believe that you could have someone living there for any length of time you wanted.

Mr. Howe:  Brayshaw to Brayshaw.

Ms. Nicosia:  In April, when we looked at the property – we purchased the house in June – there was somebody living there.  Then after we purchased it, or maybe in May, the person that was living there moved out. 

Ms. Thoits:  Living in the house that you bought?

Ms. Nicosia:  No, in the cottage.

Ms. Thoits:  And there was someone in the house, too?

Ms. Nicosia:  Yes.

Ms. Mical:  That’s what precipitated the letter [from the Selectmen].

Ms. Thoits:  The letter was back when Mr. O’Connor was a Selectman.

Ms. Nicosia:  It’s a hairy situation, to say the least.

Ms. Hinnendael:  How big is that lot?

Ms. Nicosia:  4.2 acres.

Ms. Mical:  Does that include the little section that isn’t on the map?

Ms. Nicosia:  I don’t know – that’s a good question.

Ms. Mical:  It is possibly more than that.  There’s a little piece that is across the stone wall, and it is a little piece that didn’t get put on the map.

Ms. Hinnendael:  It sounds like you need a lawyer.

Ms. Nicosia:  We just want to do the right thing.

The Board looked at the map for the location of the map, and Ms. Nicosia showed Mr. Thoits the location of the lot, the portion not on the map, and the location of the house and cottage.  There are probably 200 feet +/- between the house and the cottage.

Ms. Chamberlin:  I’m trying to sort this out, and I’m not familiar with some of the precedents of this issue.  But as a hypothetical, can somebody build a guest cottage without subdividing?

Ms. Mical:  No. 

Ms. Chamberlin:  I just wanted to be sure.  Do we have a definition of guest?

Ms. Mical:  No.

Ms. Chamberlin:  Guest, meaning whether they’re paying or not?

Ms. Mical:  No. 

Mr. Howe:  We don’t even have what a carriage house is. Or a bed and breakfast.

Ms. Chamberlin:  But we did approve a house on Kearsarge Mountain Road – one bedroom – as a bed and breakfast, did we not?

Ms. Mical:  But that was a house.

Ms. Thoits:  That was two separate adjoining lots.

Ms. Mical:  Two separate lots; two separate houses.

Secretary:  Two separate owners.

Ms. Mical:  Yes, two separate owners, in reality.  She owns one house and he owns the other one.

Ms. Hinnendael:  So this is approved as a cottage that they can have guests in, right?

Ms. DeBell:  But it doesn’t define guest.  So I guess the question is – God forbid, if someone were to get sick and have to move in there for a year or two to care for them;  we don’t want to put all of the money into getting the septic fixed and then in six months we have to move them out. 

Ms. Nicosia:  We really don’t want anyone to live there permanently.  I love my family dearly, but it would take away the tranquility of that area.  But seasonally, we could share the beauty of the area with people that would appreciate it.  That’s what I’m saying.

Ms. Mical:  I know that variances go with the land.  Can we make them not go with the land?

Ms. Thoits:  You can put conditions on it, but it still goes with the land.

Mr. Mical:  But if the condition is that any future owner would have to come to the ZBA for another variance.

Ms. Chamberlin:  The two questions are whether or not someone could live there on a permanent basis and also whether it can be used as a rental.  Is there a difference there that influences our thinking about what we would be giving a variance for?  What would really be permitted?

Ms. Mical:  When they came in, I recommended that they go for a variance because my feeling was to go for the whole thing, and then you’re covered.  Then if something happened to somebody [and they had to live in the cottage] it’s not an issue because they went and received a variance for the whole thing.

Ms. DeBell:  When the house was originally appraised before we bought it, the comps that they used for the appraisal were all houses in Warner that had a cottage or rental property attached to it.  So we’re also in the position that if we can’t rent this out and it really is a garden shed, then we’ve paid far too much money for this house.

Mr. Howe:  It seems to me that what you’re talking about is reflected in this letter.  It says that “…your assessment will be updated to reflect a cottage instead of a shed and this will be reflected in your next tax billing.”  The next tax billing was what, $25,000?

Ms. Mical:  No.  This was written in 2001 to Mr. Brayshaw and because his assessment card had it as a potting shed, when he went before the Selectmen they said he could have somebody – a guest – use it as guest housing.  It would be like you putting on a new bedroom.

Mr. Howe:  It is a guest cottage instead of a shed – that’s exactly what it says.

Ms. Mical:  Right, but like you putting on a new bedroom; yes, we’re going to up your taxes because you put on a new bedroom.

Mr. Howe:  But it is absolutely black and white – it refers to it as a cottage, not a shed.  This letter describes the whole thing for these ladies; it is just what they want.

Ms. Thoits:  I don’t think so. 

Ms. Mical:  This is just stating that for taxes, it will be assessed as a cottage and not as a potting shed.  That is what that sentence is talking about.  In fact, somewhere…

Ms. Thoits:  [reading from the letter from the Selectmen] “It is not to be used as a permanent residence by any one individual or group of individuals on a permanent basis.”

Ms. Nicosia:  Can I ask the question:  Is a seasonal part-time rental considered a permanent residence?

Ms. Mical:  I would say yes.

Mr. Howe:  I would say no.

Ms. Nicosia:  Because it’s not the same person staying there the whole time.

Mr. Howe:  Absolutely.

Ms. Thoits:  I would say yes, too.

Ms. Nicosia:  I guess what we’re looking for is the whole ball of wax.

Mr. Howe:  I think that we should be talking about the hardship that has been visited on these ladies by this piece of work.  They bought something that everybody is telling them that they didn’t buy.

Ms. Thoits:  But that is a court issue.

Mr. Howe:  A court issue?  They can’t sue the Selectmen?

Ms. Mical:  No.  They can go after the real estate agent and the previous owner, and the Selectmen for upholding it. 

Ms. Nicosia:  It would cost too much money to go that way.

Ms. DeBell:  I didn’t even know that was an option – that you could go after the Realtor.

Ms. Mical:  Am I correct, that they are required to disclose things?  And they had a copy of the letter.

Mr. Howe:  That’s only the last couple of years.

Ms. Mical:  They just bought it.

Ms. Hinnendael:  They’ve had it for a year and this letter is dated 2001.

Ms. DeBell:  It is referred to as an in-law cottage, and to me usually in-law’s come and they don’t leave. 

Ms. Mical:  I agree.

Ms. Thoits:  It seems to me that because the Selectmen did something that’s not legal, that doesn’t make it right and that doesn’t make it grandfathered and we can’t approve something that’s not legal.

Ms. Mical:  That’s why they’re asking for a variance.

Ms. Thoits:  I’m sorry that they made this faux pas, but we can’t…

Ms. Nicosia:  I think that this was decided the way it was decided because of some things that happened with the relationship between the former owner and the Board [of Selectmen].  I’m reading between the lines, and maybe that’s not what happened, but when you read some of the minutes and other stuff, you wonder what really went on three years ago.  It sounds like a cottage was built without permission, and now we have it and what do we do with it?  We might as well rip out the kitchen and the bathroom and use it as a shed – because why pay taxes on something we can’t use?

Mr. Howe:  That’s not fair and it’s not a level playing field.

Ms. Nicosia:  And we really love it here.

Ms. Chamberlin:  The town has no regulations and no enforcement of any regulations in distinguishing these mother-in-law apartments that people are renting out, right?  Other neighbors have come in and gotten a Special Exception for an apartment…

Ms. Thoits:  But they added it to an existing building.  Like we had someone up the street that built a mother-in-law apartment, but it’s connected.  The difference is that you can’t have two separate buildings on one lot.

Ms. Chamberlin:  So there’s no real relevance on whether they’re going to rent it or use it for a relative.

Ms. Thoits:  No matter what, it is a dwelling and you can’t have two dwellings on one lot.

Ms. Nicosia:  That’s how it was when we bought it.

Ms. Hinnendael:  But the tax things say “single family tenant” and “single family”. 

Ms. Nicosia:  Yes, that is our tax bill.

Ms. Mical:  But those are also standardized for the city.  The way the regulation about not having two dwellings on the same lot came in was because we had a family that built a cottage for the daughter and suddenly the parents decided to move and then they came in and you had two buildings on the same lot and they requested a subdivision because the daughter wanted to keep her cottage.  That is the background of why you can’t have two buildings on one lot.

Ms. Thoits:  It’s a problem.  If no Board member has anything further, I will close the Board meeting and open the Public Hearing.

No one in the audience spoke.

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

Ms. Chamberlin:  There are a couple of things on the application that concern me. 

Ms. Thoits said that perhaps the applicants’ responses to the conditions required for a variance would answer those questions.  She asked that they be read into the record.

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

Allowing us to rent the cottage should not affect surrounding properties in any way.  The closest home to the cottage is 3/10^ths of a mile away.

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

Our renting the cottage may actually enhance “public interest” as we would be promoting Warner tourism.

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

The cottage was appraised by our bank as being a rental property.  Our purchase price was based on that appraisal.  If the cottage is not a rental property, then our home is valued at far less than we paid for it.

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

Granting of this variance will allow us to enhance this part of our property, which includes replacing the unapproved and ineffective septic hold tank with a leach field.

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

The ordinance states,” Only one permanent residence per property.”  We are asking for the ability to rent out the cottage on a part-time seasonal basis; e.g., Warner Fall Foliage Festival, winter/summer vacations.  We are trying to promote all of the wonderful activities Warner has to offer; e.g., cross country skiing, Mt. Kearsarge , etc.

Ms. Nicosia:  In addition, we would like to add that we’re asking for a permanent variance because we need the whole ball of wax.

Ms. Chamberlin:  My biggest problem is with “C”.  I don’t think that any of that is related to granting a variance and the basis on which we can do it.  That is not our hardship.  That is what I would like some response to.  And “B”…

Ms. Nicosia:  What about the environmental impact of the surrounding property, with this holding tank not functioning properly?  That is certainly not in the best interest of Warner to have that situation. 

Ms. Thoits:  Were you going to say something about “B”?

Ms. Chamberlin:  I think that it is open to question whether then having a rental is promoting Warner.  But I’m more concerned about “C” and the issue of their hardship relating to the appraisal.

Ms. Thoits:  Actually, that hardship is monetary, and an applicant can’t use a monetary hardship as a basis for the granting of a variance.  It’s not allowed.

Ms. Nicosia:  What about all of the hard work we’ve put into refurbishing this cottage before we realized it’s not what we thought it was?

Ms. Mical:  Would the Board consider it a hardship if the applicants had been deceived prior to the purchase?

Ms. Hinnendael:  I think that they have the right to do something legally.  It’s like if you bought a house and it was contaminated with something, then the sale goes down the tubes and you hire a lawyer and you end up winning; but you lose in the end because you lose a great house,

Ms. Joss:  I think that they have a real problem, but I don’t think it is with us.

Ms. Thoits:  I think that the real problem is with the Realtor and the seller.

Mr. Howe:  But wait a minute.  If the Realtor has this letter in their hand, they’re saying that it is legal.  The Realtor has every right to say that the cottage is legal because the Selectmen said that it was legal.

Ms. Thoits:  [to the applicants] Did you ever see this letter?

Ms. Nicosia:  Not until we came to the town…

Ms. Hinnendael:  The Realtor probably never saw this letter.

Ms. Mical:  The Realtor had that letter before they purchased that property.

Ms. Nicosia:  I guess that I don’t understand what harm it is to the community to have a seasonal rental cottage? 

Ms. Thoits:  It harms the rest of the community because it’s not allowed in that zoning district for you to have two houses, two dwellings, on one property.  That’s saying that the abutting property owners can have two houses on their properties.

Ms. DeBell:  But we didn’t build it – it was already there. 

Ms. Chamberlin:  I guess this gets back to my original confusion.  If we don’t grant this variance, they’re in possession of this letter that states that they can have a cottage but not a permanent residence.  What use are they being prohibited from?

Ms. Mical:  Currently?  With this letter, but biggest use that would be prohibited is if their mother got sick and needed to come and live with them.  I’m not sure the letter addresses “rent”.

Ms. Thoits:  No, it says ‘permanent residence.’

Ms. Mical:  Right.  So that would be the sick relative or homeless relative that needs a place to stay.  Or anyone that needed a place to say.

Ms. Chamberlin:  Do we have a definition for ‘permanent’?

Ms. Mical:  No, I don’t believe so.

Mr. Howe:  It does specify ‘guest quarters’.  We just gave them that up on the hill – a b&b to be used as a guest house.

Ms. Hinnendael:  But that was on a separate lot.

Mr. Howe:  That’s not the same thing at all.  That was one house on one piece of property that was changing into a bed and breakfast.

Mr. Howe:  I’m just reading the letter; I’m not trying to create law here.

Ms. Nicosia:  I don’t know whether this is relevant, but there is property up on Schoodac Road that was for sale about the same time that we bought our house, and it has an in-law apartment that is separate from the house.

Ms. Mical:  Right.  That was actually a barn.

Ms. Nicosia:  Do two different people live in each of those?

Ms. Mical:  I don’t know what they’re doing right now, but they did at one time, yes.

Ms. Nicosia:  At one time, they did because I did visit someone in that cottage.  So I thought, “It’s in Warner; it’s two separate buildings.” 

Ms. Hinnendael:  I probably voted no on that one.

Ms. Mical:  That was on the property before the zoning came into effect.

Ms. Thoits:  If it was in place before the zoning ordinance, it is grandfathered.

Ms. Hinnendael:  Can this be considered a lodging house or bed and breakfast that is allowed by a Special Exception that is allowed under Retail and Services in the use table?

Ms. Chamberlin:  That would be allowing the use without creating a precedent of granting a variance for two residences on the same parcel.  Is that what we’re trying to achieve?

Ms. Thoits:  I think what our problem is that we know that they can’t have two residences on the same property, and we feel really sorry for them because they’ve been deceived.  I wish we could figure out a way to help them because they have been deceived.

Ms. Mical:  If you go somewhere and ‘lodge’, you expect to pay, and that would cover the rental issue.

Ms. Nicosia:  So if our in-laws come, we just charge them rent?

Ms. Chamberlin:  I need some clarity.  The variance, we know, runs with the land.  I was confused the last time, but does a Special Exception also run with the land?

Ms. Thoits:  Yes, it runs with the land.

Ms. Joss:  But you can put conditions on it.

Ms. Mical:  You could put the condition on it that it cannot be expanded and you could also put the condition on it that the next owner must come back to the Board.

Ms. Thoits:  Where does it say that you can put that condition on it? 

Ms. Mical:  You can add conditions.

Ms. Thoits:  Yes, but I’m not sure we can put that condition on. 

The Board looked through reference materials for an answer to the questions.

Ms. Thoits:  I think that we need to consult Don [Gartrell, the town’s attorney].  I think we need to show him the letter and the application.  I don’t think we can go any further.

Ms. Chamberlin:  And I think that if the Board would consider the Lodging and Bed and Breakfast as a solution, the application would have to be re-noticed.  I’m not sure that would be a solution, either.

Ms. Thoits:  We need to ask Don if this could be considered under the use table as Lodging or Bed and Breakfast.

Ms. Chamberlin:  I think that the other part of it that we need to ask Don about is that we don’t think that we can grant a variance, given the information that we have.

Mr. Howe:  Why do we think that, Alice ?

Ms. Chamberlin:  I don’t think there is a hardship, and I don’t think that this letter grandfathers it.

Mr. Howe:  Then I disagree with you because I think that the Realtor, having this letter in hand, sold it to them in good faith based upon what’s in that letter.  That letter came from the Selectmen – not from the Planning Board, not from the Zoning Board, but from the Selectmen.  It seems to me that they have every right to demand that the conditions of that be met, and that they have every right to ask us for a variance if that’s what we have to do.  But certainly I don’t think that we need to go to a lawyer and ask a lawyer if that letter was written.

Ms. Chamberlin:  But that letter says that it is not to be used as a permanent residence.

Mr. Howe:  What it does say is that the cottage doesn’t meet the criteria for a permanent residence and that although the cottage may be used to house people, it is not to be used by any one individual or any group of individuals on a permanent basis.  That doesn’t mean that it cannot be used on an occasional basis, as they want.

Ms. Thoits:  But not on a permanent basis.

Mr. Howe:  For guests.  And guests could be paying guests. 

Ms. Hinnendael:  They can’t be paying guests because we have an ordinance in here for lodging in the use table.  That’s why I suggested maybe going to the Retail Services and get a special exception for lodging because it may be easier for them to get than a variance. Then they would be able to use both buildings.  But I think that we need to clarify that with Don.

Mr. Howe:  They’re asking for what they can get.  If that’s what you’re telling these people, that we’re going to ask Don, then I think that is what we should do. 

Ms. Hinnendael made a motion to delay a decision on the application and to ask Don Gartrell [town attorney] if this could be considered for a Special Exception under the use tables.  Ms. Mical asked to amend the motion to add that if the applicants choose to come back for a Special Exception that they not be charged for the application – only fees for abutters and legal notices.  The motion was seconded and passed by a unanimous vote.

Ms. Mical asked if the Secretary could ask the questions.  The Secretary said that she would forward the information to Don Gartrell.

Ms. DeBell:  Depending on either way we go with this, I think that a definition of Guest Quarters needs to be defined.  Does that mean that a friend or family member can stay there and they can’t be charged rent?  Another question is that if it is seasonal part-time rentals, does that mean a week at a time?  I think that those need to be clarified for you and for us so that we’re all on the same page.

VIII.        Case 08-04: Variance

Dimond Flag Station, LLC, c/o Allan Jones dba Knoxland Equipment, Inc. Construction Division, 132 Cross Road , Weare , NH 03281 requests a Variance as provided in Article XVII, Section B of the Warner Zoning Ordinance.  Land east of Exit 7 on I-89, north exit ramp on south side of Rt. 103, Map 3, Lot 32, C1 zoning.  Proposed Use:  Only Terex sign available is 2 ft. x 8 ft., 2 sided internally illuminated sign; ordinance calls for 24 square feet, externally illuminated sign.

Mr. Jones showed pictures of the sign to the Board.  He also showed the Site Plan to the Board showing the locations of the signs.  There will also be additional signs that have been approved.  The sign he is asking for at the ZBA meeting is the only one that identifies the type of equipment that is for sale.  

Ms. Hinnendael asked why he needs a variance, and he said that he needs a third sign that is internally illuminated and is a little bit larger than that allowed.  Mr. Jones said that his argument is that there is more than one lot in his ownership where the business is located.  The ordinance refers to signs per parcel or lot, and does not refer to ‘per business’; he has 4 lots.  He stated that this is the only illuminated sign. 

Ms. Thoits asked Mr. Jones to read the responses to the conditions that must be proven in order that a variance might be granted:

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

I do not feel that a different size Terex sign (back lighted) near the corner of Exit 7 north ramp and Route 103 zone C-1 would affect the value of the only two residents in sight of it.  In addition, there are already other back lighted signs in the area closer to the residence than the Terex sign will be.

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

All I want is to be able to use the current Terex Company logo sign that’s the only one available at present time. It is a very attractive professional sign.

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

It would be damaging to the business if we couldn’t display the logo of our main line of equipment at this location.  Terex is number three in the construction world and we are proud to be its dealer.

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

This would mean that the proper logo would be shown for Terex Construction’s only New Hampshire dealer, which would mark us as an authorized Terex dealer and help us sell the equipment.

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

This is a commercial zoned district and it should look the part and the business should look professional and progressive.  This means up-to-date signage.

Ms. Chamberlin:  To the Board:  What is the ordinance in regard to the internally illuminated signs?  Did all of those signs received variances?

Secretary:  They changed the Site Plan Review Regulations and under the sign regulations, they no longer want internally illuminated signs.

Ms. Mical:  They passed his Site Plan.

Ms. Hinnendael:  But I was at the meeting, and it was because he was going to come here to get the sign approved. 

Secretary:  But they didn’t approve an internally lit sign – they haven’t done that since they changed the Site Plan.  Like when Aubuchon came in; they had to use externally lit signs.  They have those little lights shining down on the letters.

Ms. Chamberlin:  Because they’re directional.

Secretary:  Right.  And they don’t want any lights from the inside out anymore. 

Ms. Mical:  But have we changed our zoning ordinance?

Ms. Hinnendael:  I don’t think it is addressed.

Ms. Mical:  In the commercial district, signs shall be permitted totaling not more than 64 square feet in surface or image area per establishment.  Such signs may have continuous, non-flashing external illumination provided that no such light illuminates the boundary of any residential property located in any other district after 11:00 p.m.

Ms. Chamberlin:  So that’s an externally illuminated sign.

Ms. Hinnendael asked if the Building Code had anything to do with signs, and Ms. Mical said that she didn’t think that it addresses signs.

Ms. Thoits closed the Board Meeting and opened the Public Hearing.  Hearing no public comments, Ms. Thoits closed the Public Hearing and reopened the Board meeting.

Ms. Chamberlin:  This pains me a lot because I don’t really have a problem with this sign, but I think that it is contrary to the Site Plan Ordinance that was passed regarding internally illuminated signs.  I think that if we are having to grant variances, this should go back to the Town and we should get it in our zoning ordinances that it is not allowed.

Ms. Mical:  But until it is not allowed in our zoning ordinances, we can grant a variance.

Ms. Chamberlin:  I don’t have a problem granting a variance on the size, because it is a pretty small sign.  But the illumination is a different issue because the town is trying to take signs in a different direction.

Mr. Howe:  I agree.

Ms. Chamberlin:  I also think that he also should be asking for a third sign.

Ms. Thoits:  I agree with him that this is a commercial zone and I think that we’re a little bit whatever on this type of issue.

Mr. Howe:  I agree with you, but on the other hand Alice makes a valid point.  If I understand it, it was for exterior illumination, not interior illumination and it seems to me that we might have a problem in the future.

Ms. Mical:  It says ‘may have’ non-flashing external illumination.  It doesn’t say anything about internal illumination at all.

Secretary:  The Site Plan regulations is where that comes up.  In the Site Plan regulations, it says, “No internally illuminated signs shall be permitted by the Planning Board.”

Ms. Thoits:  They’re no permitting it – that’s why he’s here.  It’s a matter of opinion, I understand that, and I understand that they wouldn’t let Aubuchon do it, but I think that those little dumb lights over Aubuchon’s things look worse than it would have to have a sign like Market Basket’s.  That’s my opinion and we’re all entitled to our opinions.  It is my opinion that this is a commercial district and this is a small sign and I think that it’s not going to be intrusive.  That’s my opinion.

Mr. Jones:  The only thing that I want to say is that there are two other commercial businesses on the street and they both have internally lit signs.

Ms. Mical:  Hamilton Builders put that sign in last year.

The secretary gave the minutes of the Planning Board meeting to Ms. Thoits for reference regarding the approval of Mr. Jones’ Site Plan.  Ms. Hinnendael said that she was shocked when she went by the site and saw the amount of trees that had been cut down; that she had been to all of the Planning Board meetings and thought there was supposed to be more of a buffer left.  Mr. Jones said that the buffer is 15 to 30 feet wide.

Ms. Thoits called for a motion.

Ms. Mical made a motion to grant a variance for a third sign – a 2 ft. x 8 ft., 2-sided internally illuminated Terex sign as presented.  Ms. Joss seconded the motion.

Ms. Joss:  I was going to ask if the sign is going to be along the site where it has been clear-cut, along the interstate?

Mr. Jones:  It is going pretty close to the ramp. 

Ms. Hinnendael:  Would you consider turning the sign off at 8:00 p.m. ?

Ms. Mical:  Or at closing time?

Ms. Jones:  This is a business.  The idea is advertisement even if we’re not there.  If the other companies turn off their lights at 8:00 p.m. , I will too.  But otherwise I think that would be showing partiality. 

Ms. Hinnendael said that she thinks it is a matter of light pollution.

Ms. Mical:  This is out on 103.

Ms. Hinnendael:  I know where it is, and I think that it is a good business, but I do have a problem with the sign.

Ms. Mical:  I realize that the sign was designed for internal lighting, but what if you lit it externally?

Ms. Hinnendael:  He is going to have his equipment lined up along the highway, and that is advertising enough.

Ms. Mical:  You can see it from 103, but not on the interstate.

Ms. Hinnendael:  Yes you can.  I drive it everyday.

Ms. Thoits:  But the equipment is not lit.

Ms. Chamberlin:  I would like to make a general point about directional lighting and light pollution.  The test is not whether you can see the sign.  Cumulatively, internally lit signs impact a neighborhood. 

Ms. Mical:  So can externally lit ones.

Ms. Chamberlin:  Yes, depending on how they are done.  But good directional lighting of signs doesn’t, and I think that is what we should be aiming for in the town.

Ms. Joss:  What was your answer about turning off the sign at 11:00 p.m. ?

Mr. Jones:  It is very important to my livelihood to be able to display this sign.  I would like to be able to leave it on.  It is in a commercial zone and I want to be successful there.

The concerns of the town were expressed to Mr. Jones, and the fact that they arose because of what is happening at Exit 9. 

Mr. Howe:  How many lumens are in this sign?  This is very important to know. 

Mr. Jones:  I don’t know.  It is lit by fluorescent lighting.   Traditionally, they have two or three bulbs in them.  The fluorescent light bulbs last longer.

Ms. Mical:  For reference purposes, our Police Department sign has 4 fluorescent bulbs in it.

Ms. Hinnendael:  But this sign is going to be 15 feet in the air,

Mr. Howe:  Could we ask him to reduce the bulbs/wattage if it is deemed to be too bright after it is installed?

Mr. Jones:  I would be glad to do that.

Ms. Joss: Could we make the motion that it be granted provided that every night it be turned off by 8:00 p.m. ?

Ms. Mical:  Could we reduce the number of bulbs at night?

Mr. Howe:  We don’t want him to not be able to advertise.  But it should be right and not impinge on others’ rights.

Mr. Jones said that he has the same light at his Weare location and that someone could drive by there and see how it looks at night.  He said that he was sure that the policemen would appreciate any illumination on the corner of that road. 

Ms. Joss said that wanted to rescind her second because the light will be on all night.

Mr. Jones said that he could put it on a timer and have it turned off at 11:00 p.m.

Ms. Joss said that thought that the illumination was such a big issue for the Planning Board and the town that she didn’t want to reinstate her second to Ms. Mical’s motion to approve the variance.

Ms. Mical said that she didn’t think that the residents in that area have any problems with the existing lights. None of the abutters are in attendance and they were all noticed.  A member of the audience said that people in Warner do have concerns about the light pollution in town.

Ms. Chamberlin said that thinks that a compromise of turning off the lights is acceptable to her.

Mr. Howe said that a light meter should be used to check the lumens, which is more important than the length of time that the light is on.

Ms. Mical amended her motion to add the condition that the light will be shut off at 11:00 p.m. each night.  The motion was seconded by Ms. Chamberlin.

Vote:  Ms. Joss: Yes;  Ms. Mical: Yes;  Ms. Hinnendael: No;  Ms. Chamberlin: Yes

The motion passed by a majority vote.

IX.              Conceptual Consultation

Jeff Evans, Landmark Land Services for Claire Talbot, 381 Kearsarge Mountain Road .  Possible variance for a Lot Line Adjustment for property fronting on North Road

Mr. Evans presented the case to the Board and said that Ms. Talbot wishes to do a lot line adjustment to leave a lot of approximately 5.7 acres on North Road from a lot of 22 acres.  The backland would be attached to Runaway Farm so that she can sell it as a horse farm and not development property.  The Planning Board had continued its hearing on the application to do further research, and had suggested that a variance might be a solution for the applicant.  Mr. Evans said that he had concerns about what he considered conflicting information regarding the town’s ordinances.  He said that if somebody took this to court and they could meet all of the DES requirements and the setbacks, they would win.  He said that the Planning Board invoked the word contiguous.  Ms. Mical said that she disagreed and that it doesn’t have to be contiguous land, but that the total number of minimum required acres is necessary. 

The Planning Board had concerns that the lot would not have enough buildable land because of the large percentage of the land that has slope exceeding 25% and the wetlands on the property. 

Ms. Thoits agreed that the best answer would be to add enough land to the lot to meet the existing lot requirements, as suggested by the Planning Board.  Mr. Evans said that her concern in doing so was that the riding trails that extend into that portion of the land would be interrupted.  Ms. Thoits recommended that the deed to the property include easements or whatever would be necessary to keep the access open to the horse trails.  The Board questioned how the hardship requirements could be met with an application based on what had been presented to them.

Mr. Evans thanked the Board for its time and said he would consult with his client.

X.                 Communictions & Miscellaneous

XI.              Adjourn

The meeting was adjourned at 10:45 p.m.

Minutes approved:      September 8, 2004