Open Meeting at 7:00 PM

Roll Call

Approval of the Minutes of the October 12, 2005 Zoning Board of Adjustment Meeting

A motion was made and seconded to approve the minutes of the August 10, 2005 ZBA meeting as amended. The motion passed by a unanimous vote.

Central New Hampshire Regional Planning District (CNHRPC)

Mike Tardiff, CNHRPC -- Review of proposed zoning ordinance changes

Lucy St.John spoke in place of Mike Tardiff, who had an illness in the family. She handed out some changes that had been put based on information from the Planning Board and with these changes; she included some suggested changes that would pertain to the Zoning Board as well, regarding special exceptions and variances. She said that her understanding of why she was at the meeting was to go over those changes. She said that the information was not in final form.

Town is engaged in a Corridor Study, which is almost complete

There will be a final report of the study soon

In conjunction with that, worked with the Planning Board to develop some proposed changes in the zoning ordinance that would address changes to the Commercial District and the Intervale District

Suggest changes on lighting and noise and the PUD, which is Planned Urban District

Said she could go over some of those things at this meeting, but her understanding was that she was at the meeting to concentrate on proposed changes regarding the ZBA

The proposed changes are elaborations on what is already in the zoning ordinance and clarification

The discussion on variances and the criteria on granting variances

Detailed criteria on when a special exception is granted, as well as specific information on granting special exceptions on gas stations, car washes and other uses that are in the document

This is a draft form, and the Planning Board will be having additional meetings to discuss proposed changes.

She asked the Board where they wanted to go with this discussion; whether they wanted to read over the materials and have her come back at another meeting or if they had questions at this meeting, etc.

The Secretary said that the document that had been given to the Board before the meeting was dated July 2005, and that the document presented at this meeting was dated October 2005. Ms. St.John said that another option would be to go over the materials and present questions to the Planning Board. Ms. Thoits said that the Board should talk about the document. Ms. Hinnendael asked if the ZBA was to put these changes on the warrant article in March, and Ms. St.John said that yes, these were some proposed changes that might not even get that far. Ms. St.John reiterated that most of these changes came about as a result of the Access Management/Corridor Study.

Mr. Klinedinst: Are these the changes in their entirety?

Ms. St.John: Yes. These are the changes; the existing ordinances are not part of this. Pages 16 through 23 are the Zoning Ordinance. The Planning Board goes over the proposed changes and decides what to put on for a Public Hearing.

Ms. Hinnendael: Is this something that came about because you reviewed our zoning ordinances and suggested changes, or did the Planning Board come up with some of these?

Ms. St.John: My understanding is that we did some work with you with the Access management study, and in conjunction with that, whenever we look at the zoning ordinance, we say that there are some other pages that could be clarified. We do that with a lot of other towns that ask us to look at their ordinances and see if there are areas where we can provide a little more clarification. This is not a review of your total zoning text, but areas relating to special exceptions and variances. Most ordinances are so general, and we’re tried here to provide some more detail.

Ms. Hinnendael: I think that there was some discussion at the Access Management public hearing by the gentleman from CNHRPC that Warner has some really good zoning ordinances, but that there were areas that could be tweaked to make it easier for the ZBA.

Ms. St.John: That’s what this is.

Ms. Thoits: Where it says Organization and Rules of Procedures, I thought procedures were something we adopted, like at the beginning of the year or something. You’re talking about putting them in the ordinance?

Ms. St.John: You can have your Rules and Procedures separately. Basically what this is saying is to be sure that on an annual basis the Board looks at them in case they need to be tweaked.

Mr. Klinedinst: What’s driving these changes?

Ms. St.John: Basically, as was said, we were asked to assist in the Access Management Study and in conjunction with that, knowing that typically many towns’ Planning Boards and Zoning Boards ask for assistance to add some clarity to the ordinance. It’s not like we came in and said that Warner needs help. Anytime you write something, you can always go back and make changes.

Ms. St.John said that she will be meeting with the Planning Board again at their work session on Monday, November 21^st.

Mr. Klinedinst went over some of the changes and asked if there is an RSA relating to variances. Ms. St.John said that an RSA states that the five criteria must be met in order to grant a variance, and that case law is stated to show what the conditions are. She said that the suggested change is a clarification of that.

The Secretary noted that the variances in the changes are broken down into use variance and area variance, which is not in the current ordinance. Ms. St.John said that was based on recent changes that have occurred in court cases. This makes the difference in the two variances a little more clear. Mr. Klinedinst said that he would like to have the particular RSA noted in the ordinance as a reference.

Mr. Klinedinst stated that there was a lot in the changes to digest, and that the Board would have to retrain themselves because they need a further description as to what the role of the ZBA is.

Ms. St.John said that because of the recent court cases and use variances and dimensional variances, the ZBA’s role has become more complicated. It is important that reasons be given as to why a decision was made in case they ever get into a litigation situation, they can say that based on what we know and based on the information given in the application, we were comfortable making this decision. A lot of it is documenting the reasoning and making sure you’re fair across the board with every applicant that comes before the Board. She said that these changes put a lot more in writing that the applicant and the Board can see; it gives more direction and guidance.

Mr. Rogers asked if these changes would pertain only to the Intervale District, or the entire town. Ms. St.John said it would pertain to the entire town. He asked if this was done by the Planning Board to make ZBA’s job easier, and it was stated that CNHRPC was asked by the town to put something together for the Access Management/Corridor Study, and that in addition to that they looked at the zoning ordinance provisions pertaining to the ZBA – they do this for other towns because the role of the ZBA is getting more complicated – and that having these things in front of the Board members as they are doing their task would make that task easier and give more direction to the Board.

Mr. Klinedinst stated that a lot of the changes appear to deal with issues that he thinks of as Planning Board duties. Ms. St.John said that there is a bit of overlap, but that they are very distinct Boards and they have very distinct duties by statute. The Zoning Board is a quasi-judicial board. Generally, when the ZBA looks at the zoning ordinance for a variance, you’re saying when you grant a variance that you are taking it upon yourselves as ZBA members that this is a use that is ok for this town, even though it isn’t in the zoning ordinance. The same for a Special Exception. Some of the applications will have a lot of detail in them. The purpose of the Special Exception is that it is a permitted use; in doing that, you’re making a much more informed decision if you have some specific criteria to base it on. That’s why if you have these items that are listed here, you can say be sure that these areas are covered. In some towns, the ZBA gets almost as detailed in their applications as the Planning Board. The Planning Board then looks at the design elements and how it fits into the general community. The ZBA is looking at it more as, Should it be an allowed use in this town? And if it is an allowed, we want to make sure that these basic things are addressed.

Mr. Rogers: This is so detailed that now we’re required to go through all of these separate steps as a Board. Why can’t we just have these as a separate guide, not an ordinance?

Ms. St.John: Because as a Zoning Board, you have to base your action on principles that have been adopted by the town, so you can’t have a separate text that you go by.

Mr. Rogers: Putting these things in writing requires this board to be experts on a lot of things that we’re not. This is a small town board, and all that we’re supposed to do is enforce the rules that the town votes on and that the Planning Board suggests. This seems like it’s going overboard, in my mind, that we have to do ground water studies, traffic studies…

Ms. St.John: You don’t have to do them, you ask the applicants to do them.

Mr. Klinedinst: We have to understand them; that’s the point. We have to have knowledge that what they’re presenting is a workable solution.

Ms. St.John: You have very good points. But I think that the fact is that not everybody in every town is an attorney or a geologist, etc. I’m not any of those things. We all bring different skills and knowledge to the table and are assets to the community. That’s why you’re here. So when somebody brings in an application that requires a traffic study, the town can retain someone on their behalf to explain the study.

Mr. Klinedinst: Retain as in hire for money?

Ms. St.John: Right, and you have the applicant pay for it. That’s how it works.

Mr. Klinedinst: How many places do we have to do it? This is really for Exit 9, I think.

Ms. Hinnendael: Yes, because they’re anticipating issues that will come up.

Mr. Klinedinst: Right, and they want us, in my opinion in looking at this, they want us to make these decisions because of whatever – they don’t have the time, they don’t have the resources.

Ms. Hinnendael: No.

Ms. St.John: You have to understand the difference between the Planning Board and the Zoning Board. As the Zoning Board, your responsibility is to decide whether that use is appropriate for that particular location in your town. And in doing that, you need to have a little level of detail. The next part of it is that when it gets to the Planning Board, they really get into the overall design of it. You can get into a part of that – it varies from town to town. I’ve been to zoning board meetings where the ZBA asks for way too much, and others grant everything. But you don’t have to be an expert in every field.

Ms. Hinnendael: We can ask for a traffic study to see if something would really fit there, and then the Planning Board can use that same traffic study to say the driveway should be someplace else and work with the state. It’s mostly going to be commercial.

The Board and Ms. St.John discussed that applicants need to come to the Zoning Board before they go to the Planning Board if a special exception or variance is needed because it saves the applicant time.

Mr. Klinedinst: What towns have implemented these changes?

Ms. St.John: These changes were developed specifically for the Town of Warner.

Mr. Klinedinst: Were they developed by your organization – who requested it?

Ms. St.John: As I said, when we were working with the Access Management Study here, these are some typical things that might be used in other towns, drafted for them according to their particular needs.

Mr. Klinedinst: What towns were they?

Ms. St.John: We’ve done work for Chichester. We’ve presented ideas for probably all of the towns in our region at some point or other.

Ms. Hinnendael brought up the fact that the town had passed an ordinance that doesn’t allow drive-through restaurants within 2,000 feet from each other. The Secretary said that it was under formula restaurant, and Ms. St.John said that she’d never seen that definition. She said that the proposed change regarding drive-through businesses didn’t seem to be in conflict with the formula restaurant ordinance. Ms. St.John suggested that the Board go over the definitions as they exist.

The Board discussed more of the proposed changes, and thought it would be a good idea if they took some time to read over the proposed changes thoroughly and discuss them in detail at the December meeting. Ms. St.John said that after the ZBA reviews the proposed changes, any comments can be given to the Planning Board and then as a Planning Board they decide which amendments will move forward. Then Public Hearings are held on them – the first is held, any changes that they decide to make are made, and then a second Public Hearing is held to decide on final language, and then it is voted on whether or not to put all or some on the ballot for Town Meeting.

Mr. Klinedinst: If the Planning Board wants to put any or all of these changes on a warrant article for the ballot at Town Meeting, we have no vote not to have it on there, right?

Ms. St.John: Yes, but that is the role of the Planning Board. If someone petitions the zoning amendment, they’d still have to go through the Planning Board process and have a Public Hearing as well.

Mr. Rodgers: But the town still has to vote on it, right?

Ms. St.John: Right. But only if the Planning Board decides to have it put on the ballot. The Planning Board makes that decision, but that is the statutory function that the Planning Board has.

Secretary: You should go to the Planning Board’s work session and let them know how you feel about it.

Mr. Klinedinst: I understand that, but basically I think we’re spinning our wheels.

Ms. Hinnendael: You need to go to these meetings and talk to them about it. I think that they’re very receptive.

Ms. Joss: If we can get more definition to any of our variances that we grant, I think it is useful. We can put any stipulations on any variance or special exception.

Mr. Klinedinst: We can do that now.

Ms. Joss: I know, but this defines it more clearly and helps us to determine that they have met all of the criteria. I see it as helpful in gathering more information.

Mr. Klinedinst: I haven’t looked at all of it yet. But what I’ve seen so far is that it ends up taking what we’ve considered the Planning Board’s responsibilities in the past and giving them to the Zoning Board, and that this document is generated through the efforts of the Planning Board.

Ms. Joss: I think there’s no good purpose in having an adversarial relationship with the Planning Board. You might figure out a way that you can work with them.

Ms. Hinnendael: Do you think that we’d ever agree to have an applicant do any of these studies suggested here? We’ve gone over the criteria for variances and special exceptions and say that they’ve been met by the applicant and never thought about what the Planning Board is going to have to deal with. Then they find out that there’s a ground water issue or a traffic issue, but we’ve given that variance so they can build this thing and the Planning Board has to approve it somehow because we’ve said that it is ok. But how can they when an issue comes up later?

Mr. Klinedinst: What I see here is if we, for example, request a traffic study and we’re requesting a study to look at Exit 9 because that is what this is about, and we say it looks great, and then it goes to the Planning Board and they say it isn’t going to work – they’ve done a couple of traffic studies in that area already, from what I understand – then we’re taking an element and we’re putting it into something that they’ve decided already what will work and what won’t work. If we say that an applicant can do it and they’re saying it’s not going to work, what do we say? Do we have to go back to court?

Ms. Hinnendael: I think that we just need to know what they’re doing, and we can talk about that later. They’re trying to decide what to do down there (Exit 9) and they’re making proposals on what to do with 15 driveways within 100 feet, for example, and how they’re going to eliminate the accidents that happen down there all the time. Say we didn’t’ have a McDonald’s there and they came in because they needed a special exception to put in a restaurant, we just said, "Ok, no problem" and didn’t do a traffic study…

Mr. Klinedinst: Who’s doing the traffic studies now?

Ms. Joss: They’re done by experts.

Mr. Klinedinst: Right, but they’re being presented to the Planning Board. Now it will have to be presented to the ZBA and the Planning Board. Is that what you’re saying?

Ms. St.John: It could be, yes.

Ms. Hinnendael: Because we may decide that 10,000 cars a day is too much impact for that area and we’re not going to grant the special exception for a restaurant there. It’s detrimental to the character of the area, etc.

Ms. St.John: As a Board, you can go through these things and decide how specific you want to make it. If you’re not comfortable asking for a traffic study, you don’t have to ask for one. You may feel comfortable with the information that has been provided to you, and you would say to the applicant that they need to realize that the Planning Board may require a traffic study as additional input, which is not uncommon. I think it’s important as boards to understand that each of you have very specific roles and that nobody is trying to step on someone else’s toes. I know that it is sometimes the feeling between Planning and Zoning Boards, but they have very specific functions. As members of this town, you want your town to look like something in the future, so I think it would be very useful at a work session to talk about general issues, like why would the zoning board allow this to happen when we know that this or that is already a problem down there. If you have more or less a general understanding of the direction the town is going in – there’s a lot of good information as a member of this community that you have access to as a Board member, collectively, you should be working toward promoting what you’ve taken the time to spend community resources on. So that would be my suggestion in addition to making some specific recommendations.

Ms. Thoits: If we had a traffic study done and we say that it won’t work, it would never make it to the Planning Board, because we wouldn’t grant the special exception.

Mr. Klinedinst: You said that we wouldn’t have to require a traffic study if we didn’t think it was needed, but the word "shall", not "may" is used in this document. If there is someplace where it says a traffic study shall be done, and we want to change that to a traffic study may be requested, then we essentially allowing the Planning Board to make that decision. If it says "shall", then we’re required by the ordinance to do it, right?

Ms. St.John: Right. But let me use as an example page 22, #6: "The applicant shall demonstrate to the satisfaction of the Board of Adjustment that lighting, buffer areas, noise.... shall be adequately provided for and controlled….." Although the word "shall" is used there, I think the point is "to the satisfaction of the Board". Those here making the decision may feel that what has been presented is adequate for a decision to be made, but when they get to the Planning Board they may be required to provide additional information for them to make an informed decision. It’s a tough job – it’s never an easy job serving on a board.

Case #09-05: Variance

Applicant/Owner: Mark Ruff, 302 North Village Rd., Warner, NH 03278

Property: same, R-3 Zoning, Map 9, Lot 22

Reason: Removal of existing mobile home and construction of a 30’x 32’ foot Cape style home with a 14’x 12’ mud room and a 20’ x 20’ garage

The applicant read over his answers to the conditions for a Variance.

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

The surrounding property values will be increase by replacing a mobile home with a regular house.

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

Not whatsoever. It will improve the area and it will be one fewer mobile home in the town. A house will look much nicer.

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.]

There is no use change for the lot. Ms. Thoits asked if he could attach the garage to the mud room, which would gain a few feet. Mr. Ruff said that he would like the garage to be a separate building. There are 9 or 10 feet between the mud room and the garage. That would be the only access to the back door (the area between the garage and the house). There is no house on the abutting property, which surrounds this nonconforming lot. There is no house on the property across the street, either.

The location of the driveway was discussed, and the access to the garage. Ms. Thoits stated that the Andersons must not have an objection to the house being built, because they are not at the meeting.

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

The ability to build a home in place of the mobile home would improve their quality of life.

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

It is in the spirit of the ordinance to improve the property by building a home in place of the mobile home.

The Board discussed that by removing the trailer home, it would definitely improve the value of the property and wouldn’t cause any decrease.

There is a point-driven well, which will be upgraded when the house is built. There is a holding tank style septic system because before the creek was diverted, he was unable to get in a regular leach field because of the proximity to the water. Mr. Ruff said that the tank style septic system is rather expensive to maintain, but it works well. He said that he would use footings and a frost wall in the construction of the house because the water table is so high on the property.

Ms. Thoits closed the Board meeting and opened the Public Hearing. Hearing no one, Ms. Thoits closed the Public Hearing and reopened the Board meeting.

Those voting will be Evie Joss, Joanne Hinnendael, Ken Klinedinst, Eric Rodgers and Martha Thoits.

Ms. Hinnendael made a motion to approve the application for a variance to remove the existing mobile home and rebuild his home, mudroom and garage as proposed because he meets the criteria for a variance. The motion was seconded by Mr. Klinedinst. The motion passed by a unanimous vote.

Ms. Hinnendael added that the lot in question is a non-conforming lot and that there is not much else they could do without this variance.

Conceptual Consultation

Property Owner: Deborah Lord, 193 E. Main Street, Warner, NH

Property Location: same as above, Map 29, Lot 7

Reason: Construction of wood shed/barn for storage

Ms. Lord was not at the meeting and no discussion of this consultation occurred.

Communications and Miscellaneous

Ms. Thoits read a Written Notice of Violation from the Selectmen to Mr. and Mrs. Joseph Abbondanza:

Pursuant to NH RSA 676:17-b, you are hereby notified the following violation of the Town of Warner NH Zoning Ordinances is occurring on the premises known as Morse Loop Road, Warner, NH 03278 and Tax Map 17 Lot #18. Please note that on August 11, 2004 the Town of Warner ZBA denied your request for a special exception for open storage of raw materials on the above mentioned property. The ZBA further stated you had seventy (70) days from the date of decision to remove all raw materials. On October 21, 2004, June 8, 2005, June 16, 2005, July 8, 2005, August 19, 2005 and September 7, 2005 inspections of the property showed that you are still stockpiling raw materials on said property, to wit: piles of loam, gravel, woodchips and a piece of construction equipment (loader).

You have twenty (20) days from the receipt of this letter to remove all construction equipment and raw materials stockpiled at the above location or the Town of Warner will seek further enforcement action.

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