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Zoning Board of Adjustment Warner, NH Meeting Minutes of Members Present: Martha
Thoits, Chair, Dennis Barnard, Vice Chair, Eric Rodgers, and Alternate
Rick Davies. (Jean Lightfoot
recording) Excused:
Members Mike Holt and Janice Loz Not present:
Alternates Gordon Nolen and Ted Young Ms. Thoits opened the meeting at 1.
CASE #07-08 USE VARIANCE a.
Applicant: Warner
Aggregates, LLC, David Herrick, Owner b.
Property Location: Route
103 East, Warner, NH, Map 3, c.
Proposed Use: Construction Equipment and Supplies Sales
d. Variance to Zoning Article VIII. Request Variance in order to sell construction equipment and supplies by auction 6 to 8 times a year lasting one day each.
a. Review Application – Accept/Reject/Continue
b. Public Hearing
c. Action Taken – Approve/Disapprove/Continue Ms. Thoits told Mr. Herrick that there are not an odd number of Board
members available to vote, so that if there is a tie, then the variance
will be denied. She said
that his options are to put it off until next month or vote tonight.
Mr. Barnard said that he has a conflict of interest in that he
knows Mr. Herrick and is also an auctioneer.
Mr. Davies asked if he does business with Mr. Herrick.
Mr. Barnard said, no. Ms.
Thoits asked if he auctions heavy equipment.
Mr. Barnard said he has not recently, but it’s not out of the
question. An audience member
said that the Board should vote to see if they agree that there is a
conflict. Mr. Davies said
that the Board could vote, but it is not conclusive and that if Mr.
Barnard believes there is a conflict, then that is determinative.
There was some discussion noting that in a small town, Board
members often will know the applicants.
It was agreed that knowing someone is not a problem; however,
doing business with someone or potentially doing business may be a
problem. John Dabuliewicz
spoke from the audience, saying that it is up to the individual to make
the judgment, because of a personal or a business connection, then that
would be the bounds on which he would recuse himself.
He agreed with Mr. Davies that the Board cannot vote and decide
the issue for Mr. Barnard. He
said it has to be Mr. Barnard’s decision.
Mr. Davies said that the regulations say that the Board may vote
and recommend, but it is not binding.
Ms. Thoits agreed and asked Mr. Barnard if he could make an
unbiased vote. Mr. Barnard
said that he would prefer to not participate and would sit in the
audience because he is supportive of the auction idea.
Ms. Thoits told Mr. Herrick that, in that case, there is not a
quorum and therefore not enough members to vote.
She said that it will have to be postponed until next month.
Ms. Thoits said that is one member who said he would come if we
needed him, but we would still be in the situation of having an even
number of Board members and if it were a tie, the decision would be to
deny the variance. She said
that she would call him if Mr. Herrick chose to go that route and have
the application heard tonight. Mr.
Rodgers asked what the quorum number is.
Mr. Davies said it is four in our adopted Procedures.
Mr. Davies said that when this was being discussed two months ago
Mr. Young (the member who could be called in) was indicating that he may
have to recuse himself, as well. Ms.
Thoits said that Mr. Young had told her that he could be called and he
would come if he were needed. Mr.
Rodgers asked Mr. Herrick how November would be for him.
Mr. Herrick said that he would wait until the November meeting.
Ms. Thoits apologized. She
said that the two who are absent would have been here except for
illness. She said that the
application will be put on the agenda for November 12th.
Ms. Thoits recognized a member of the audience who asked if the
Board was going to consider EPA regulations and leakage of contaminants
from this operation before the next meeting.
Ms. Thoits said that the case has not been presented and it will
be discussed next month. Mr.
Davies said that there will be a public hearing in November when that
issue may be raised. Ms.
Thoits told the audience member if there is something that he would like
the Board to consider before then, he should send it to the Zoning Board
office. That will be on
November 12th. Mr.
Herrick then left. 2.
CONCEPTUAL QUESTION
a. Richard
Fisher,
b. Property Location:
Does the dog kennel operation that is currently being run on this
property require a variance, special exception or no action from the
Zoning Board of Adjustment? Ms. Thoits recognized Richard Fisher.
Mr. Davies said that there is now a quorum again because Mr.
Barnard may now participate again. Mr.
Fisher said he is here responding to a letter from Laura Buono as a
result of a building permit request.
He said that he was prepared to apply for a Special Exception,
but was told he may not need it, so he is here to see if he does for the
operation of a kennel for selling dogs.
Ms. Thoits read the letter: “Upon
your submission of the building permit application, the Selectmen’s
Office learned that the necessary approval had not been obtained by you
to operate a kennel. As we
discussed during a telephone conversation the week of
“Please be advised that you will have until Monday, September
22, to contact the Zoning Board secretary to be placed on the Zoning
Board agenda for a conceptual in order to avoid any further action in
this situation.
“You may contact the Zoning Board secretary . . .” Ms. Thoits asked Mr. Davies to look up
what is required in an R-2 zone for operating a kennel.
Mr. Davies said it is a Special Exception and is under
Agriculture on page 35. Ms.
Thoits told Mr. Fisher that he will need a Special Exception to have a
kennel in an R-2 zone. Ms.
Lightfoot said that there was a question as to whether what he is doing
is actually a commercial kennel and if that makes a difference.
Mr. Fisher said that if he wants to sell the property and he has
a kennel on it, he wants to be sure that he does not have to go through
this then to make it legal. Mr.
Davies asked if there were a certain number of pens for dogs.
Mr. Fisher said his biggest client is US Customs.
He said he sells and breeds hunting dogs and his real niche is if
he sells a puppy and can get it back for six months, then it becomes
lucrative. He said that he
basically trains bird dogs. Mr.
Rodgers asked if he houses someone else’s dogs outside when they are
on vacation and charge for it. Mr.
Fisher said that he does occasionally.
Mr. Rodgers said then that he needs a Special Exception.
Ms. Thoits agreed. The
application was already submitted and Mr. Fisher wrote a check for the
amount of the application fee. Mr.
Davies asked Mr. Fisher if when he comes back he will bring a drawing or
sketch of the operation to show how things are laid out.
Mr. Rodgers said it would also help if he got letters from
abutters saying that they don’t mind what Mr. Fisher has been doing
for the last eight years. Mr.
Fisher said that he is one of about six different people in Warner doing
the same thing. He said he
hopes he is not getting singled out.
Mr. Rodgers said he didn’t know there were any dog breeders in
Warner. Ms. Thoits agreed.
Mr. Fisher said there is the wife of a former Selectman.
Mr. Davies said that from the Zoning Board point of view, it is
not their duty to go and seek out those who are not complying.
Mr. Fisher said it is a gray area and he wants to be sure that
things are clear for any potential sale of the property.
He said that the AKC and the US Government require that he comply
with all local laws. Mr.
Davies thanked him for coming in before things went too far without
getting the approvals. He
said it is good that Mr. Fisher is doing what he is doing.
Mr. Fisher thanked the Board and left. 3. MINUTES Mr. Rodgers MOVED to approve the Mr. Davies MOVED to approve the 4. COMMUNICATIONS AND
MISCELLANEOUS Mr. Davies asked about the question of
recusing. He said that Mr.
Barnard had said that he is an auctioneer.
He said that he is in building construction and wondered about
when he would have to recuse himself.
Ms. Thoits said that she is not sure that Mr. Barnard needs to
recuse himself. Mr. Barnard
said that his concern was that he is close with Mr. Herrick and sometime
down the road it might be to his interest to have the auctions going on
and to go down to work for him. Mr.
Rodgers said that Mr. Barnard had brought it up and that should be
enough to question whether he could be entirely impartial.
Ms. Thoits said that we need to be sure
we have enough people at the meeting in November.
Mr. Rodgers, Mr. Davies, Ms. Thoits and Mr. Barnard said they
would be here. Ms. Lightfoot
said she would contact Mr. Nolen. Ms.
Thoits said that she hoped the other two illnesses would be over by
then. Mr. Rodgers MOVED to adjourn.
Mr. Davies seconded. The
motion was PASSED unanimously.
The meeting was adjourned at
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