Zoning Board Meeting Minutes -- 10/10/07

Zoning Board of Adjustment

Warner, NH

Meeting Minutes of October 10, 2007

Members Present: Martha Thoits, Chair, Dennis Barnard, Martha Mical, Vice-chair, alternate Rick Davies, Eric Rodgers, alternate Janice Loz, alternate Ted Young, Joanne Hinnendael (arrived late), and Jean Lightfoot, recording.

Not present: alternate Mike Holt.

Chair Thoits opened the meeting at 7:00 pm. Introduction of new secretary for Planning and Zoning, Jean Lightfoot. Roll call was taken.

Chair opened the continuation of the last meeting and the site walk on the Harte variance.

Case 11-07: Variance Daniel Harte

Applicant: Daniel Harte, P. O. Box 131, 17 East Main Street, Warner, NH

Property Location: 39 Morse Loop, Warner, NH, Map 17-Lot 11, R-2 zoning district

Proposed Use: Single Family Home

#1: Variance to Zoning Article VI. C. 1. A. Request a 200’ variance to the 200’ minimum frontage requirement.

#2: Variance to Zoning Article VI. C. 1. B. Request a 10’ variance to the 25’ yard requirement to an abutter’s property line; the abutter being the Town of Warner.

Chair Thoits, Only three of us were at the site walk, Janice Loz, Martha Mical and I, and we need five to vote. Mr. Young was here at the meeting and Mr. Barnard and Mr. Davies were not. So, we’ll go with the regular member and Mr. Young for the fifth. Voting will be Mr. Young, Mr. Rodgers, Ms. Loz, Ms. Mical and myself.

Chair Thoits asked Mr. Harte if he had anything further to add to what he had already presented. He replied no.

Chair Thoits, Mr. Harte is seeking a variance for 200’ frontage because he has no road frontage and he’s also seeking a variance to have his building 15’ from the abutter’s property. Does anyone have any questions they want to ask Mr. Harte before I open the public hearing?

Ms. Mical, I just have a couple of things that came up at the last meeting that I’d like to give the answers to. At the last meeting, there was a question of when Ms. Taylor had put something on the property. In 1986 – it appears that’s the first time that there are any drawings of anything on anyone’s property, but in 1973, Ms. Taylor was taxed for not only land but an “other,” which appears to be – it could have been a barn, it could have been the trailer – it doesn’t say in the record. And, then the other thing – there was a question about the septic approval for operations. This is a State of New Hampshire form; it does give the approval number. It’s for a 2-bedroom mobile home located on (they’re calling it) Warner Loop. It’s dated 1974. It’s signed by Thomas something. It says that this person is the authorized agent of the New Hampshire Water Supply (??) Control (??) Commission. So, those are two of the issues that had been brought up previously.

Chair Thoits asked if there were anymore questions or comments. Seeing none, she closed the meeting and opened the public hearing. She requested to hear from the abutters first.

Robert Shoemaker, abutter of Lot 11, read the following letter into the record:

I would like to comment on 3 of the 5 variance criteria which must be met for a variance to be granted.

A. No diminution in value of surrounding properties will occur.

Not true. Lot 12-2 is a long, thin, tapering lot across which the right of way to lot 11 passes. It is wooded and private. Because of its narrow aspect it is susceptible to development on either side. In consideration of floodway concerns the siting of a house on lot 11 would have to be as high up and close to the railroad right-of-way as possible making it a bold and prominent visual feature, affecting the character and privacy of lot 12-2 in a negative way. Increased use of the right-of-way and noise factors also are detrimental to value. At 2 acres, this property is assessed as a vacant building lot and is taxed accordingly. I consider it an investment for retirement funding and its value affects my future. Privacy is a desirable characteristic and is reflected positively in a market value. Loss of this privacy decreases value and lowers potential return. If this variance is granted, diminution in value of surrounding property will occur.

B. By granting the variance, substantial justice will be done.

Again, not true. Most of this property is classified as Warner River floodplain and floodway. I have witnessed occasions when most of the lot is under water. It is not an easy location for a house and septic system to be sited. Being mostly low lying to the Warner River, the only section to build on is a narrow strip as high up and close to the railroad right-of-way as possible, which requires a setback variance. It has no road frontage which requires a variance. The Shoreline Protection Act places further restrictions and setbacks on cutting vegetation and excavation and development in the river floodway. Already several regulations have been broken or disregarded. No dredge and fill permit was received, or even applied for, in the construction of a breakwater of the River’s edge. Only by bending regulations can this be considered a building lot . . . and not a good one at that. No justice will be done in making this a building lot.

C. Denial of the variance would impose unnecessary hardship upon the applicant.

No hardship for property use can be claimed by the landowner in this case. Full disclosure of restrictions on building potential for this lot were present in all real estate listings along with a copy of a letter in 2005 to the previous owner, Virginia Taylor, from the Selectmen determining that the lot is not buildable. There was already a history of building permit denial at this point. Also, being in the Warner River floodway along with Shoreline Protection restrictions minimizes development potential. Caveat emptor, buyer beware, applies here.

The building present on the lot was placed before zoning. It is small, but it is what is grandfathered. The owner has the right to replace the structure in size and kind. He did not buy a building lot . . . he bought a recreational use lot.

I do not believe these criteria have been met for a variance to be granted.

Other comments I have:

1. Lot 11 was sold without a survey . . . and bought without a survey. No boundaries are marked so actual property lines are unknown. Lot 11 should have a survey before any setback variance distance is considered. Without knowing true boundaries, any setback variance request is just a guess!

2. At the site visit on September 21, 2007, a question was brought up as to the proper building setback distance for this R-2 property. Is it “25 feet to an abutter’s property line” or “40 feet from the edge of any public right of way,” in this case, the old railroad right-of-way? This point should be clarified.

Ms. Mical stated that there is a letter from Don Gartrell saying it is the abutter.

Mr. Shoemaker continued: 3. Another point, a subdivision survey of my property shows my boundary with the old railroad right-of-way and widths of that right-of-way. After measuring off my known boundary, there is reason to believe that clearing, excavation, and material removal on lot 11 has gone across the property line into the railroad right-of-way in two places. Again, a survey of actual boundaries would clarify this issue.

4. I recall a meeting of the site of lot 11 in the summer of 2006 at the request of a prospective buyer. Present at the meeting were the buyer, Sherry Noyes (the real estate listing agent), Selectman Richard Cook, Martha Mical, and myself. A woman from Melvin Mills district wanted to construct a yurt as a dwelling on the property. Selectman Cook explained that with no road frontage it was not a buildable lot and no building permit would be issued. Further discussion followed. I do remember Martha Mical emphatically shaking her head side-to-side stressing to the woman that she could not get a permit to build a yurt . . . or any other structure on the property. As a result of this meeting, the woman passed on the purchase.

Here it is, one year later, same property . . . no changes in RSA’s. The only difference is a new owner with a picture of a log home. Should it matter . . . does it matter . . . who is applying for a variance to build on a back lot with no frontage? Are rules bent for some and not for others?

Consistent with the recent history of this lot, I urge your denial of these variances.

Clark Davis stated that he and his wife live right across the river from the Harte property. He read the following into the record:

On June 12, 2007, we attended a Board of Selectmen’s meeting re: property at 39 Morse Loop. As we recall, Selectman Cook asked about the boulders and fill that were put in the river. The owner said that he had not brought in any material but had dug up the boulders on the property, built the wall, backfilled and spread the fill around. Mr. Cook told him that it was still quite possibly a violation.

On September 12, 2007, we attended the first ZBA meeting re: 39 Morse Loop and expressed our concern and opposition to allow building on a non-conforming, non-buildable lot which has NO road frontage. Also, we were of the opinion that only Virginia Taylor had the right to ask for a variance, having owned the property PRIOR TO the present zoning rules going into effect. Anyone purchasing the property after the rules were confirmed by town vote would come under the new rule.

On September 21, 2007, we attended the “site walk” and viewed the many changes that had been made to the landscape, most of which were in violation of Warner’s Zoning Ordinance. In addition, there was found to be an encroachment on town property. In fact, it was ALL a violation as the owner had not secured any permits from the Town or the State!

In reviewing page 6 of Warner’s Flood Plain Development Ordinance we believe the property owner is in violation of Item VI-Development Standards: #’s 1, 2 and 3. The excavation that was done in and to the adjacent riverbank can change the natural course of the river, as it will increase the turbulence and velocity of the flow, which, over time, can greatly impact our property that lies directly across the river and runs some 1500 feet downstream.

It should be noted that the owner purchased the property knowing it was NOT a buildable lot. Then, without securing any applications or permits and with no regard to Town or State codes/regulations, PROCEEDED to do what he wanted to do. We believe, in view of these facts, that the request should be denied.

Chair Thoits asked if there were any other abutters wishing to speak. Seeing none, she asked if there were any members of the general public wishing to speak.

Chris Connors, a member of the Warner Conservation Commission confirmed that their letter was received and provided a color version of the map of the property (attached as attachment 1).

Chris Connors, I would like to speak on behalf of the abutters (Bob Shoemaker) who initially notified me for help with the zoning issues and had Mr. Harte followed the law in applying for a permit with the Department of Environmental Services for what occurred? Two things would have happened. First of all, the floodway is under the protection of the Army Corps of Engineers and so they would have been notified. That’s EPA, FEMA, etc. Secondly, the building inspector would have also been notified in the town – and, this has nothing to do with an actual building permit being issued or a building being built, it just has to do with any kind of disruption to the Warner River itself. So, as part of that process, the building inspector would have had to determine whose property or if the community would be adversely affected and then the abutters would have been notified in advance of anything happening. In this case, they were denied that and, so, I just want to speak on their behalf and let you know that they have been very concerned about this.

Mr. Harte, I apologize for the excavating that I did down there. What I did was to try to protect the land – the land was being washed away – my driveway was being washed away. I’m working with Eric Skoglund of the DES. We did meet there and we’re scheduled to meet there again. We have pictures of the way it was before and the way it is now and what was done. I’m dealing with Eric as to what’s going to happen out there – if it can be left alone or if we have to restore it or move anything. That’s in with the State.

Mr. Harte continued, As far as the Conservation people are concerned, I spoke with Mr. Shoemaker before and told him that I want to live there and I want to leave the rest of the 10 acres in current use. I want to leave the area as it is as best we can. We even talked about cutting some pines and making a meadow for the animal population there. And, he agreed with me that that would be beautiful. I am all for conservation and taking care of nature and the waterways that we have. I’m known to the DES because I was one of the original people of the Tom Pond Association in educating all the people down there on their septics and monitoring the water. I’ve lived in town for 31 years. I’ve been a Fire Department EMT for almost half of that. I guess I was in the other end of Warner because I’ve never been treated this way by neighbors who don’t even know me. Mr. Shoemaker says that I’m diminishing his piece of property by my property that’s right next to his. As far as I’m concerned, the end down here is not buildable anyway because, if somebody wanted to build on that, if it was not approved, they’d have to build up by his house, number one. Number two, if he wants to sell it, I’ll buy it so he doesn’t have to worry about it. Number three, about the traffic, I’m going to live there anyway, so it doesn’t really matter. The traffic’s going to be the same. I just didn’t want to live in the two trailers. I wanted to make it better. Rather than put a new trailer on there to live in, I wanted to build a small home. And, I think, and logical people think, it’s more property value to his house and to his lot than it would be to have two trailers next to it. I don’t understand that part. So, I’m asking that you guys do this as rational people. The driveway’s been there for over 100 years. There’s a house there that I can live in or change it to another trailer. My point is to make it something nicer for everyone and keep the conservation. Anything that I have done, I will fix at my own expense to make everybody happier.

Ms. Mical provided pictures of the property taken by Mr. Shoemaker during the flood of the spring of 2007.

Mr. Harte stated that it’s not against the rules to build on a flood plain. You just have to follow a different set of rules.

Mr. Young stated that he thought it required 2 acres that was not in the flood plain.

Ms. Mical, As best as can be determined from the FEMA maps and this other map we had, it does appear this is a flood way. I don’t know what the rules are for a flood way. But, that’s not from the Zoning Board. Ours is, he’s requesting a 200’ variance for road frontage. That’s it. That’s what we’re discussing at this moment. We aren’t the ones who issue building permits.

Mr. Young, In a previous hearing, Mr. Harte presented the criteria for his justification and I want to be sure they understand what he presented.

Chair Thoits, I have his answers here on my copy. If you like, I could read them, if you think that should happen. For A, no diminution in value of surrounding properties would happen because new home site will not be seen by any surrounding homes. That was his answer to that one. B, granting the variance will not be contrary to the public interest. There is already a dwelling on the lot and the public will still be able to have full use of the town property. C, denial of the variance would result in unnecessary hardship to the owner seeking it. To get out of the flood plain area and not be able to build a new house into scope of the land then exposed to the flood area. (I’m not quite sure I understand that one.) I guess he means he would get out of the flood plain area and not be able to build a new home into the scope of the land rather than exposed to the flood area. By granting the variance, substantial justice would be done. I would be building out of the flood plain and further away from the river. The use must not be contrary to the spirit of the ordinance because the railroad bed is town-owned property and not impacting on other dwellings. OK?

Chair Thoits then asked if there was anyone else wishing to speak.

Mr. Davis asked that the Conservation Commission Letter be placed in the minutes. That letter follows:

Letter from the Warner Conservation Commission to the Warner Zoning Board of Adjustment and Warner Board of Selectmen, Date October 8, 2007.

RE: Floodplain Development Ordinance and the Daniel Harte Property, Tax Map 17, Lot 11

Dear Sirs:

The Warner Conservation Commission (WCC), under its statutory charge (RSA 36-A:2) to comment on projects affecting the proper utilization and protection of natural and watershed resources, offers the following comments concerning the Daniel Harte property; Tax Map 17, Lot 11.

1. Floodway Encroachment

While writing a letter to the Department of Environmental Services about the Harte property on the Warner River and work done that appears to be in violation of the State’s Comprehensive Shoreland Protection Act, we became concerned about the alteration of the floodplain and floodway that Mr. Harte may have accomplished by building the three new retaining walls and subsequent buildup of fill. These walls seem to have been built to prevent further flooding of his property in a major storm event.

According to Warner’s Flood Insurance Rate Maps (FIRM), the majority of this property is designated as a Floodway Area in Zone AE. By definition, the regulatory floodway means the channel of the river or other water course and the adjacent land areas that must be reserved in order to discharge the base flood without increasing the water surface elevation. Section 3 of Item VI, Development Standards of our floodplain ordinance, states that “along watercourses with a designated Regulator Floodway no encroachments, including fill, new construction, substantial improvements, and other development are allowed within the floodway that would result in any increase in flood levels within the community during the base flood discharge. In Zone A the Code Enforcement Officer/Building Inspector shall obtain, review, and reasonably utilize any floodway data available from Federal, State, or other sources as criteria for requiring that development meet the floodway requirements of this section.”

Since the property in question is almost completely within the Warner River floodway, the Conservation Commission strongly recommends that the Board of Selectmen deny issuance of a building permit for the construction of a residential structure on this parcel.

2. Retaining Walls

With regard to the three retaining walls which are either entirely or partially in the floodway, the Warner Floodplain Development Ordinance specifically requires prior application to the Town and to the State for permits for their construction. Please refer to the following sections in this ordinance:

Item VI, 1. “In riverine situations, prior to the alteration or relocation of a watercourse the applicant for such authorization shall notify the Wetlands Board of the New Hampshire Environmental Services Department and submit copies of such notification to the Code Enforcement Officer/Building Inspector, in addition to the copies required by RSA 482A:3 (Fill 7 Dredge in Wetlands requirements.). Further, the applicant shall be required to submit copies of said notification to those adjacent communities as determined by the Building Inspector, including notice of all scheduled hearings before the Wetlands Board.”

Item VI, 2. “The applicant shall submit to the Code Enforcement Officer/Building Inspector, certification provided by a registered professional engineer, assuring that the flood carrying capacity of an altered or relocated watercourse can and will be maintained.”

To the best of our knowledge, Mr. Harte has not complied with this ordinance’s mandate of applying to the NHDES prior to the alteration in question, as well as notifying the Town Building Inspector, thus denying the abutters a chance to have a formal voice in the work on this property which as the potential to damage additional areas of wetlands/shoreline across the river and downstream.

The retaining wall that is closest to the river course and the subsequent retaining wall above this wall are of greatest concern wherein alteration of the floodway is concerned. Without a current survey of this area a direct comparison depicting the impact of the new walls’ change in riverbank elevation cannot be made. The abutters have indicated that they do not remember a preexisting wall in this location. The survey of Mr. Shoemaker’s property (which included this area of shoreline) seems to depict a natural sloping (steep to gradual) embankment. The new walls do not appear to follow the direction of the preexisting bank contours, but instead lie perpendicular to the river’s flood stage flow. Clearly the location, direction of face, and material of these walls will alter seasonal high flows in a different direction than previously experienced and may in turn have a negative effect upon shoreline immediately downstream of the new wall and the opposite shoreline given the particular nature of this meander. The new retaining walls are made from large boulders which by their hard, flatter, smooth ‘face’ will tend to increase the velocity and turbulence of the flow in this immediate area and areas downstream.

Our recommendation is to advise the landowner that, in accordance with the Town’s Flood Plain Ordinance, he must immediately hire a registered professional engineer to demonstrate that the flood carrying capacity of the altered and relocated watercourse can and will be maintained and further that his walls will not result in any increase in flood levels within the community during the base flood discharge. If Mr. Harte is unable or unwilling to proceed in this manner, we recommend that the two retaining walls, at least, be carefully removed under the Army Corps of Engineers’ and/or the Department of Environmental Services’ supervision and the area appropriately revegetated so as to eliminate or minimize potential erosion. Failure to address this situation could jeopardize the Town’s eligibility for federal floodplain insurance.

3. Minimum Buildable Lot Standards

Article VI., C., of the Warner Zoning Ordinance, states that “every lot shall have a minimum road frontage of 200’ and a minimum buildable area of 2 acres (87,120 sq. ft.).” We recognize that Mr. Harte has requested a variance for relief of the 200’ of frontage, however, according to the definition of buildable area, he cannot include:

- wetlands; poorly drained or very poorly drained soils;

- land within a 100 year floodplain or floodway as determined by FEMA; or

- areas subject to easement to a right of way that limits building or development, in favor of the Town, County, State, or Federal Government, or any third party.

Without a proper survey, we are unable to determine the exact location of the wetlands on site as well as whether or not poorly drained soils exist. Consulting the State’s GRANIT system it does appear that forested wetlands cover part of the property. Almost all of the land on this parcel is within the 100 year floodplain or floodway as determined by FEMA. The lot is additionally subject to a 40’ setback from a public ROW owned by the Town of Warner. In view of these severe limitations, we suggest that a licensed surveyor and wetland scientist be employed to determine how much buildable area actually exists on the site and specifically where that area exists, mindful that

Additionally, we observed at the September Zoning Board meeting that Mr. Harte has requested a variance of 10’ for the relief of Zoning Article VI, C., 1., B. We believe the actual building setback required in this case is 40’ as the abutting land is a public ROW owned by the Town of Warner. On the Zoning Board site walk that followed the September meeting, it was determined that excavation may have already occurred within the actual ROW. This abandoned rail bed path is currently used as a recreational trail by local residents. In order to protect the existing natural character and structure of this trail, we advise that the zoning setbacks be strictly adhered to and also that Mr. Harte be required to remediate the over excavation.

4. On-site Wastewater Disposal

Under Existing Non-Conforming, Article ZV, B. of the ordinance, since the ownership of the lot has changed, we understand the landowner is required to prove that the lot is able to sustain a State approved wastewater disposal system, prior to advancing with any new construction or relocation of existing structure(s).

5. Box Trailer

We understand that the existing box trailer on site has been relocated from its original (on-site) position in the floodway to a new location still within the floodway, yet closer to the Warner River. Mr. Harte has further indicated that the box trailer is currently being used for additional living space. We are unable to discern whether or not this trailer required securing in its prior location (in the event of a flood) and are concerned that such measures may be required in its new location (still within the floodway yet closer to the River). As per Zoning Ordinance Article IV., L., “not more than one permanent structure containing residences shall be permitted on a single lot.” Zoning Article XV also stipulates that the existing box trailer is subject to Non-Conforming Use if its use has been discontinued for a period of time greater than one year. Since during the change of ownership of this property, the box trailer’s use may have been discontinued for longer than one year, per Article V., M., this trailer may already be required to be removed from the site altogether. The WCC believes that the removal of the box trailer would better ensure protection to both the natural resources and land owned by others along the Warner River.

Thank you for your consideration of these recommendations. Should you have any questions, please contact me or Chris Connors (456-2173 or cconnors@iamnow.net).

Sincerely,

Nancy Martin

Chair, Warner Conservation Commission

Attachment: Composite map of Harte property.

Evelyn Davis stated they have several concerns about the property. The first concern is the fact is that Mr. Harte has no road frontage. Second is, our property is definitely going to be affected by what has been done. Our property has been in his family since 1860 and it hasn’t changed a great deal over the years. This is apt to be the beginning of the shore changing, because as we went to the site – I don’t know if anyone else noticed it – there already is an eating-away, an erosion of our property.

Chair Thoits asked for any other questions.

Ms. Davis asked how much property Mr. Harte has. Ms. Mical responded 10-1/2 acres. Mr. Harte added that he has a right-of-way and that’s what the site walk was about.

Chair Thoits asked if there was anyone else from the public wishing to speak. Seeing no one, she closed the public hearing and re-opened the meeting.

Mr. Rodgers, I appreciate all the information from the Conservation Commission, but what does that have to do with these two requests for variances? Chair Thoits said they were giving their opinion as to why the variance should not be granted.

Mr. Davies asked if in the application, it’s to enable the applicant’s the fullest use of the property given special conditions. Chair Thoits replied it’s an area variance, which is needed to enable the applicant’s proposed use of the property given special conditions of the property. Mr. Davies pointed out 1.C on the application, as well, the hardship of the person.

Ms. Loz commented that historically, there have been driveways, rights of way, and structures used as residences, as well as septic being allowed. Mr. Rodgers pointed out that the trailer is being taxed as a residence, even though there is no road frontage. Ms. Mical said that Mrs. Taylor had been taxed that way, too.

Mr. Young asked if they were taxed as a residence or as a temporary camper trailer and if it was allowed to have a full-time residence on the square footage. Ms. Mical said on the back of the July 1993 property card, it says “construction wood frame,” which the porch is, but it doesn’t say mobile home. It says an 8x26 (208 square feet). It’s a class 1 which means it’s very low quality. It’s in fair condition. And, this is 1994. And they took a lot off for functional and physical depreciation. On the 1994 card, at the very bottom, it says, “home has current New Hampshire Motor Vehicles registration.” That would kind of tell you that it’s a motor home.

Mr. Young asked Mr. Harte if he’d been to the Board of Selectmen. Mr. Harte said he was living there, but he wanted a building permit. He said he did not want to live there without the building. Mr. Rodgers said he would be able to replace with the same footprint and the same type of structure. Chair Thoits asked if there was an ordinance on how long you can have a camper. Mr. Barnard commented that if the Town had been taxing him for whatever it is, he would have the right to replace it in kind without a permit. Ms. Mical said she believed he would need a building permit to replace it in kind. Mr. Harte, That’s how all this came about. I wanted to move it. From the pictures, you can see how the water goes in the spring.

Chair Thoits, I see this as a sort of like a Catch-22. I really think that what Mr. Harte wants to do would definitely improve the property, certainly make it look nicer. But, for us to grant variance with no road frontage, we’ve never done that. I can think of a couple cases that came before us and wanted to build when they had only a driveway and we wouldn’t let them because they had no road frontage.

Mr. Harte stated that it had been allowed before because his neighbors on Tom Pond had received a variance. Chair Thoits responded that it hadn’t happened when she was on the Zoning Board.

Mr. Harte, Ms. Hinnendael isn’t here, but she brought up the fact that McDonald’s was allowed a variance and they didn’t have frontage. They only have a right-of-way in the parking lot and she brought that up. Mr. Harte, I didn’t know about that, but that’s what she stated. That’s what was done for them because they only had a right-of-way and no road frontage. My neighbors on Tom Pond both sides of me – one lot’s only 50’ wide. But, they were allowed to do it. Chair Thoits responded that she didn’t know anything about what happened with McDonald’s or the Tom Pond neighbors since she wasn’t on the Zoning Board then.

Mr. Young, The Tom Pond situation was set up like a development years ago with lots that were subdivided around the pond and they were accessed by a common road that gave everyone who bought those properties a right-of-way. Therefore, they had a right-of-way that would lead to those. But, a lot of subdivisions won’t necessarily have frontage on a town road. But, they do have a right-of-way with that subdivision. We’ve come upon some of those previously on Tom Pond. It’s a common road.

Mr. Harte, Well, this has a right-of-way.

Ms. Loz stated this was a tricky one and we’d be setting a precedent. Chair Thoits, It’s one of the hardest ones we’ve had because I feel like he’d be improving the property, but I also feel like – 200 feet? 200 feet is a lot of feet.

Ms. Mical, The only thing is that because there is a structure or whatever you want to call it on the property, then at least we are not opening up that any landlocked piece of land can be built on. Ms. Loz agreed that there is already a residence on the property. Chair Thoits added if it was a residential one before, how can we say it can’t be again, as long as the use wasn’t discontinued for a year?

Mr. Young, We have one more item on this to consider. I don’t understand how he’s going to be able to live on that property unless he has 2 acres of buildable land that has an offset from the town railroad bed. In other words, you’ve got to have 25 feet off the right-of-way, plus there’s got to be 2 acres of fill to make this buildable. Mr. Rodgers said that Mr. Harte is asking for a variance from the railroad bed.

Mr. Young, We don’t have the complete material that we need to get him anywhere near a building permit. Mr. Rodgers said Ted’s point is to have some proof now that the permit is actually attainable. Mr. Young said he wanted to be assured that there are definitely 2 acres of buildable land. Mr. Barnard asked if there is a survey. Mr. Young said that no, there is not. Chair Thoits asked Mr. Harte how many acres of the 10 acres he was planning to use. Mr. Harte replied just a half acre. Chair Thoits, A half acre. That’s not two acres, is it? Mr. Young said it’s two acres out of the flood way. Mr. Davies asked if the Planning Board determines that kind of thing. Ms. Mical replied that a surveyor or engineer determines it. Ms. Mical asked if it was the feeling of the Board that it wanted documentation that two acres could be out of the flood plain and out of the flood way. Mr. Young, We required that and we’re still fighting with the RAW property. Ms. Mical also stated that that costs a lot of money. I think that Mr. Harte would want to know that he could get the variance before he puts out that money. Mr. Young said that he therefore needs the offset variance as well and that’s the second item. Ms. Mical said if he put it 25 feet away from the boundary, he would not need the offset. Mr. Davies then asked if there is no survey, who knows what the boundaries are? Mr. Barnard asked if you could okay the first variance and deny the second until we get more information. Chair Thoits replied yes.

Mr. Davies, I know I didn’t walk the property but I know basically where it is. 200 feet is a long variance and it just seems to me that without knowing the boundaries of this property, you could put this anywhere. You have to have boundaries to establish where you’re going to put this 200 foot variance. And, then, to even see if this is feasible – by looking at this picture, it looks like you have to put a lot of fill in an area that’s under water, as far as I can see. It sounds like you’re moving this on to higher ground. Mr. Harte said there’s a driveway that’s existed for years. I have two trailers. I want to move to higher ground. If I can’t do that, I’ll put it right where it is – it doesn’t make any sense to me whatsoever, but, what I’m asking is to accept the right-of-way as the 200 feet of frontage. This has been there for years. Mr. Davies, But, you don’t know exactly where the property lines if you haven’t had it surveyed. Mr. Harte, I haven’t had it surveyed but we know pretty much where it is. Mr. Shoemaker came out with a picture of where the lots are and you’ve been taxing me on what you think where the lot is. Ms. Mical, But, when it comes to the issuance of a building permit, that is when he will have to prove that he’s how ever many feet he’s supposed to be from the boundary line. That doesn’t affect our decision because we’re saying, “you have to be so many feet from the boundary line” and if the boundary line’s over here, then it’s over there, and if it’s over there, then it’s over there. I do agree that there needs to be a survey before any building takes place. Mr. Rodgers, It’s still 200 feet.

Mr. Rodgers, You can use the property the way it is. You have a driveway, you can replace it in kind and you can live there. But, 200 foot variances, I can’t live with that. That’s ridiculous. That’s the entire requirement. I mean if you had 150 feet of frontage, we wouldn’t be having this conversation, but all 200 feet is – can you get any more against what the town wants in its zoning ordinances than the entire length of the required – as I understand your question. Mr. Harte said he didn’t understand why you can do it for McDonald’s and not for him. Mr. Rodgers replied that he didn’t do it. Chair Thoits said that the Selectmen say it wasn’t done. Mr. Harte, I didn’t bring it up. I know my neighbor asked for a variance and I said, “yeah” when it came to me. He has a 16 foot right-of-way through my property to get to the town road

Ms. Loz stated that historically there was a residence on the property. It was taxed as a residence. There was a driveway and there was septic. Ms. Mical said there wasn’t any zoning at that point. Mr. Rodgers, But, he can use it as a camp and it would be permitted. How can we grant a 200 foot variance when that’s all that’s needed? Did you know that it was not buildable, Mr. Harte? Mr. Harte, Yes. Mr. Rodgers, I personally would have a problem with a 200’ variance.

Mr. Davies, if I could make a motion, I would say that the one thing for granting the variance would be substantial justice would be done. I don’t see a justice issue. Granting the variance would not be contrary to the spirit of the ordinance . . . Chair Thoits, If just one of the criteria is not met, then we have to deny it.

Mr. Rodgers made a MOTION to deny the 200’ variance request on the 200’ frontage requirement in item E on the application for granting a variance since granting the variance would be contrary to the spirit of the ordinance and having road frontage for a building lot and, all 200 feet, in my opinion, is required.

Mr. Young requested to add to the motion that, in addition to being contrary to the ordinance, the applicant knew going in when he bought that property that the lot had been considered as not a buildable lot. Mr. Rodgers accepted the amendment to the motion.

Chair Thoits asked if people were ready to vote and stated that a yes vote will deny Mr. Harte the 200’ variance road frontage for his property. A no vote will give him the right. Everybody ready to vote? Mr. Young, yes. Mr. Rodgers, yes. Ms. Loz, no. Ms. Mical, no. Chair Thoits, yes.

The MOTION was passed and Mr. Harte request for variance denied.

Other Business

Ms. Mical noted that Mr. Harte had left before he was verbally told that he had 30 days to appeal the decision. She asked the secretary to be sure to let him know when the decision is sent to him.

Ms. Hinnendael MOVED to accept the September minutes. Mr. Rodgers seconded. The motion was agreed to and the minutes for September were accepted.

Ms. Mical MOVED to accept the September site walk minutes. No second was heard. The motion was agreed to and the minutes of the site walk were accepted.

Ms. Mical MOVED to put off approval of the August minutes until the next meeting. Mr. Rodgers seconded. The motion was agreed to and the approval of the August minutes will be postponed until the next meeting.

There was further discussion about a regional planning meeting in October. Ms. Hinnendael said she thought it sounded like a good meeting for all to attend.

Mr. Davies asked about the proposed form change which he’d prepared and about preparing recommendations to the Planning Board for warrant articles. Chair Thoits apologized that due to the change in secretaries, the proposed form did not get on the agenda. It will be added for the next time. Mr. Davies said that the point was to try to break down the application form. Mr. Barnard added it was to make it easier for every citizen and taxpayer in town who wants to do anything. Ms. Mical said she thought we were talking about a cover sheet. You check off which thing you want, and then the second page, we give them either the special exception or the variance. Instead of two second pages, there’d be three.

Mr. Davies said that currently there are two pages for each and maybe a third for a cover page. He said that he had composed some instructions. Ms. Hinnendael agreed that one was for a variance and one was for a special exception. Ms. Mical, And, the third one would be the difference between a use variance and an area variance. But, I think the cover sheet, which is the first page of the current application; I thought we were going to just add a couple lines, like a checkmark place for an area variance. Chair Thoits requested that Mr. Davies and Ms. Lightfoot get together to be sure she has the right form and she will send copies in everyone’s packet for the next meeting.

Ms. Mical told a member of the public that the second item on the agenda had been withdrawn. Chair Thoits apologized for not letting him know earlier. The gentleman asked if they were going to do anything. Ms. Mical, They may be doing something but it’ll be within the parameters that are set up. In other words, they aren’t doing anything too close to the boundary line. They may have moved it. The gentleman asked if there had to be a plan of some kind submitted. Chair Thoits said that he could check with the Selectmen’s Office because they will need a building permit. And, that is public information. But, if they don’t violate any of the zoning ordinances, then they don’t have to come to us.

Mr. Davies asked about items for the warrant articles. Ms. Mical suggested that if there are things that people think should be changed, that they bring them to the next meeting and we should put it on the agenda. The format should be a draft, not an article since the Board may or may not agree. Mr. Davies asked about the Selectmen looking for the upgrade on the temporary sign ordinance and whether we should be working on that. Ms. Mical said she thought it was for the Planning Board, not Zoning.

Ms. Loz asked when we make changes to our procedures. Chair Thoits said once a year.

Ms. Loz, I did do some research on whether or not alternate members vote – remember we discussed that? A lot of zoning boards in New Hampshire write it into their rules and procedures whether or not alternates vote. Otherwise, you leave it up to however the chair feels at the moment. If the Chair changes, then that could change. But a lot of the towns are starting to put it into their rules that alternates can sit in on the zoning board meetings and then those who are present and they fill in and the get all the information.

Chair Thoits, We allow alternates to speak and all of that in the deliberations. And, I usually try very hard to remember to say who’s going to be voting before we do it. And, alternates only vote if one of the regular members is absent or, in the case of like, today, Dennis is a regular member but he’s not been here for any of the discussions. Actually, neither had Eric and it had to be a flip of, do we do Dennis or Eric? I knew that Ted knew something about it and he’s an alternate and that you were there. Ted was at the last meeting, too. So, that’s why I chose Ted and you over Dennis and Joanne.

Ms. Loz, And, the reason why I bring it up is, it does say in the regulations that alternate members, it is recommended that they not vote.

Chair Thoits, Right. And, actually, in one of those things that I read, they’re even supposed to sit out there. That would be a good reason to write it in our procedures because we’ve always felt that by participating. . . When I was an alternate, I was told, “You don’t even need to come. We don’t need you tonight.” Well, when I became a real member, or a permanent member, I was just like at sea. And, an alternate needs to be as much a part of this meeting as the other people. So, I’ve always felt strongly that alternates participate, but when it comes to voting, the permanent members vote, unless one’s absent, and then I try to alternate the alternates. I try to pick a different one each time. But, I don’t always make it.

Ms. Loz, You do a very good job. Thank you.

Mr. Barnard asked if there was any special procedure to use if they were not able to come. Chair Thoits replied to e-mail or call the secretary.

Ms. Mical MOVED to adjourn.

Meeting adjourned at 8:30 pm