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Zoning Board of Adjustment Warner, NH Meeting Minutes of Members Present: Martha
Thoits, Chair, Dennis Barnard, Vice Chair, Mike Holt, Eric Rodgers,
Janice Loz, and Alternates Gordon Nolen, Rick Davies and Ted Young. (Jean
Lightfoot recording) Excused:
None Not present: None 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 Mr. Barnard recused himself from consideration of this application
due to a potential conflict of interest and moved to the audience.
Ms. Thoits asked Mr. Nolen to vote for Mr. Barnard on this
application. Ms. Thoits recognized David Herrick and Charles Cleary representing
Warner Aggregates, LLC. Mr.
Cleary said that the property is a very deep parcel and runs from I-89
to Mr. Herrick’s existing gravel pit off of Route 103.
He said that the front portion of the property on I-89 has very
little available use. He
said that the Warner Zoning Ordinance permits some residential use and a
scattering of other uses, including a utility plant and by special
exception a junkyard. He
said that the use that Mr. Herrick proposes is the auction of
construction equipment 6 to 8 times per year, in which the equipment
will be brought in, inspected, placed on the site, the auction will be
held, and the equipment would be removed and delivered to its
purchasers. He added that no
construction of any buildings is planned.
He said that temporary power will be necessary, but not permanent
power. He said the plan is
to designate 5 or so acres of the site near I-89 for the auction which
is upland property, not near any wetlands.
He proceeded to review the criteria for the variance as follows: 1.
The granting of the variance will not diminish the value of
surrounding property because the proposed use will be located on a large
(50+ acre) tract of land along the border of I-89, is similar to other
commercial uses in the immediate area along Route 103 and will not be
visible to abutters across the 2.
Granting the variance would not be contrary to the public
interest, because the proposed use will take place more than 600 feet
from the
Mr. Cleary mentioned that they have met with the Conservation
Commission on this project and they have written a letter seeking
several conditions which if agreed to, which Mr. Herrick does, they are
satisfied that this will not cause a problem for the immediate area.
3.
Denial of the variance would impose unnecessary hardship upon the
Applicant as set forth herein: (a)
The zoning restriction as applied interferes with the
Applicant’s reasonable use of the property considering its unique
setting in its environment.
The
applicant owns more than 105 acres off Route 103, all of which is
designated Open Conservation District.
Portions of Applicant’s property abut I-89 and are located
further from the (b)
No fair and substantial relationship exists between the general
purposes of the Zoning Ordinance and the specific restriction on the
property.
The
purpose of the OC-1 Zone is clearly stated in Article VIII of the Zoning
Ordinance: “The Open
Conservation District OC-1 is designated for agricultural, forestry, and
very limited residential uses on inaccessible land, which because of
steepness of slope, poor drainage, or periodic flooding shall not be
intensively developed.” However,
(c)
Granting the variance would not injure the public or private
rights of others.
The
applicant intends to conduct the equipment auctions infrequently on its
own private property in an upland area which borders I-89 and other
commercial uses. There are
no other property owners in the immediate vicinity to the proposed site.
Applicant will utilize only legal rights of way to access the
proposed site. In exercising
its property rights, Applicant will not injure the rights of others and
will abide by such reasonable regulation as is necessary and
appropriate. 4.
Granting the variance would do substantial justice because the
proposed use will allow a portion of Applicant’s property, enveloped
by I-89 and commercial uses, to be utilized for a limited commercial
purpose. This proposed use
will have minimal impact on abutters and no impact on the 5.
Granting the variance will not be contrary to the spirit of the
Zoning Ordinance because, as set forth in criterion number 2, the
Applicant’s proposed use does not conflict with the basic objectives
of Article VIII of the Zoning Ordinance.
First, the portion of the property proposed for this use is not
subject to steep slopes, poor drainage or periodic flooding.
It consists of well-drained sandy soil on slopes of 0% to 5%.
See Plan attached hereto. Secondly,
the Applicant is not proposing development of the land as part of this
use. No structures, paving
or utilities are planned to accommodate this use. Mr. Cleary continued that there is no intention
to pave or put in permanent utilities; the only impact that would most
likely be seen is some flattened grass.
Ms. Thoits asked if there were any questions
from the Board. Mr. Rodgers
asked to see a lot layout. Mr.
Herrick and Mr. Cleary showed the Board members a plan with the portion
of the lot outlined which is intended to be used for the auctions.
Mr. Nolen asked about a neighbor who had complained about a dust
problem. Mr. Herrick
indicated on the plan where that neighbor resides at the other end of
the lot from the planned auction site.
Mr. Holt asked if the equipment would be on display prior to the
auction date. Mr. Herrick
replied that it will be being brought in a week prior to the date of the
auction. He said it won’t
all come in at once and will come in periodically through that week.
He said that generally it would be placed by Mr. Rodgers asked if the letter from the
Conservation Commission was to be considered.
Ms. Thoits said it would be considered and she understood that
Mr. Herrick has agreed, so she thought the conditions listed in the
letter would most likely be included if the variance were granted.
Mr. Cleary said that they have reached consensus with the
Conservation Commission on the conditions listed in their letter.
Mr. Rodgers asked if there is a time frame within which a leaking
piece of equipment must be removed.
Mr. Herrick said if a leaking piece of equipment arrives that is
on a lowbed, then the auction company has been requested that it not be
unloaded and it be removed immediately.
Mr. Rodgers asked if he is leasing the land to an auction
company. Mr. Herrick said
yes. Mr. Davies asked if Mr. Herrick if he came to
the Planning Board for conceptual advice on this plan.
Mr. Herrick said no. Mr.
Davies asked if the Planning Board would know about the access road
being planned. Mr. Herrick
said that they might know about it from the consideration of the gravel
pit, but he has not discussed the auction plans with the Planning Board.
Mr. Davies asked who would do traffic control during the events
and if the town would have to pay for it.
Mr. Herrick said he didn’t think there would be a need, with
the company itself hiring its own security.
He said if it’s required that if so many people show up to an
event, then the auction company would have to hire someone to handle the
traffic control. Mr. Davies
asked how many Warner residents would be expected to purchase equipment
at one of the auctions. Mr.
Herrick replied that from the feedback he’s heard, probably quite a
few of them. Mr. Davies
asked how close are the abutters to the planned site, adding that there
is no particular five acres designated with any setbacks and there is no
site plan yet. Mr. Cleary
replied that it is well within the center of the property, with the
nearest abutter being the building supply company.
Mr. Davies asked if there is going to be a designated minimum
setback from the abutters’ properties.
Mr. Cleary and Mr. Herrick provided a drawing to the Board
indicating the borders within which the auction would be planned to be
held. Mr. Cleary said it has
its own natural setbacks because of its location and 300-400 feet would
be acceptable. Mr. Davies
asked about the departure plans and asked if there are safety provisions
in place. Mr. Herrick said
he has asked the auction company to be sure to clean up the site.
He said that he does not want the site to be turned into a dirt
pan, oil spotted site. He
added that he will also be policing it himself.
Mr. Davies asked if there have been any communications with the
Town regarding the site. Mr.
Herrick said no, but there is an abutter who has complained about dust
and they have attempted to address the issue in several different ways
and are actually pursuing buying another right-of-way to get into the
area. He said that this is
related to a road into the gravel pit that is shared by Mr. Nickerson at
the Flea Market and the cell tower.
Mr. Davies mentioned that Mr. Herrick has not signed the
application section that gives Mr. Cleary permission to speak for him.
Mr. Herrick signed the page.
Ms. Loz said that she understands that there
would be a two-week period of time that the machinery would be on the
property. Mr. Herrick said
yes, although it could well not be that long.
Ms. Loz asked what happens to the pieces that don’t sell.
Mr. Herrick said the auction company has its own site and they
would remove them to that site. He
said that the site will primarily look like a hayfield, with grass and
not gravel. He said there
will be temporary port-a-potties and a trailer for the office for first
week, the day of the auction and for a day or two after.
Mr. Holt asked if there would be any lighting.
Mr. Herrick said no, there would just be a pole with a meter on
it for plugging into the temporary trailer.
Ms. Loz asked about the lowbeds delivering the equipment.
Mr. Herrick said that they don’t stay on the site.
He said that they unload the equipment and leave.
Ms. Loz said that they would add to the congestion for a short
period of time, though. Mr.
Herrick said when he was at the Bow auction site today, there might have
been a lowbed truck every couple of hours.
He said that the auctioneer schedules the arrival of the
equipment over the week before. Mr. Davies asked if there would be a reason
that a maximum number of pieces of equipment could be put on the
variance if it were allowed. He
asked if it would be reasonable to say that they could not go over 125
pieces, for example, under the theory that if, say, 300 pieces show up
and they overwhelm the 5 acres. Mr.
Rodgers, Ms. Loz and Ms. Thoits said that they thought that would be
unreasonable. Mr. Rodgers
said that he would consider a sledgehammer as a piece of equipment, and
to set a number would be unreasonable.
He said it might be set by weight or volume.
Ms. Loz said that a volume to comfortably fit within five acres
might be possible. There was
some further discussion about how to limit the size of the auction.
Mr. Herrick said that he thought the site would determine how
many pieces could be placed because of its topography.
Mr. Nolen asked how many auctions were intended
per year. Mr. Herrick said
he put in 6 to 8, but he said he doesn’t believe there will be more
than 5 a year, depending on the economy.
He said he’s been asked if the hotel is going in at Exit 9
because they would rent a lot of rooms and it would help Warner’s
economy. He said they have
asked if there were any nighttime restaurants.
He said they would patronize another sit-down restaurant if it
were to come to town. He
added that it could be a positive thing for the town, and it’s only
temporary and would not be like the Fall Foliage Festival eight times a
year. Mr. Cleary added that
the interchange on I-89 should be able to accommodate reasonable
business traffic. Mr. Holt asked what other sites are around the
state, besides Bow and the one planned in Warner.
Mr. Herrick said the site in Bow is being sold and that is why
they are looking at Warner. Mr.
Holt asked if this would be the only site in southern and central Ms. Thoits asked if there were any other
questions. There were none.
She closed the Board meeting and opened the Public Hearing and
asked if there were any abutters present who wished to speak.
There were none. She
asked if there were any members of the general public who wished to
speak. John Dabuliewcz of
the Conservation Commission said that Mr. Herrick had attended their
meeting last week about the project.
He said that they were under the wrong impression about the
planned location for the auction. He
said that they have come to an agreement with Mr. Herrick and asked that
the agreed-upon conditions be placed on any approval.
He reiterated that the Conservation Commission takes no position
on whether he meets the requirements for a variance, recognizing that
that is the job of the Zoning Board of Adjustment.
He said that there was one condition that was omitted from the
letter that was agreed on at the meeting and that is that:
Mr. Herrick would be responsible to see that an appropriate oil
spill response procedure be put in place should a leak develop when on
the site. He said that they had mentioned wetlands
because on the map that Mr. Herrick had shown them there might have been
wetlands, but they were not sure of that, and Mr. Herrick was going to
check it to see if wetlands were there.
The letter from the Conservation Commission is
reproduced here: “ “Martha Thoits, Chair Zoning Board of Adjustment Town of Warner, NH 03278
RE: Variance Request
from Warner Aggregates LLC “Dear Chairperson Thoits: “Following last month’s adjourned October 8 meeting of the Warner
Zoning Board of Adjustment (ZBA) concerning the above-referenced
application, David Herrick of Warner Aggregates met with the Warner
Conservation Commission ( “As a result of the discussion, Mr. Herrick and the “Accordingly, should the ZBA decide to approve the Warner Aggregates
variance request, the “1.
Any construction equipment leaking fluids upon arrival at the
site will not be allowed to remain on the site. “2.
No washing of construction equipment be allowed on the site. “3.
The amount of fuel in the construction equipment stored on the site will
be kept to a minimum. “4.
Construction equipment will be stored on the site for the minimum amount
of time necessary to conduct the auctions and allow purchasers a
reasonable amount of time to remove their equipment, typically not more
than 10-14 days total. “5.
Any wetlands on the site will be identified as such by the owner. “Thank you for your consideration in this matter. “Nancy Martin /s/ “Chair, Warner Conservation Commission “cc: David Herrick, Warner
Aggregate Associates, LLC
Charles F. Cleary, Esq., Wadleigh Starr & Peters” Ms. Thoits asked if there was anyone else wishing to speak.
There was no one. She
then closed the Public Hearing and re-opened the meeting.
She asked if there was any more discussion.
There was none. She
said she thought that if a motion were to be made and accepted, then the
conditions agreed to should be included.
She said it is clear that there was a misunderstanding in a prior
letter from the Conservation Commission about where the auction site was
proposed, but now it is clear that it is not in the gravel pit.
Mr. Davies asked if there was a sketch or plan written which
identifies exactly where the five to ten acres are proposed within the
lot. After some discussion,
Mr. Herrick and Mr. Cleary provided a plan with the section marked off.
Mr. Young discussed where the site is and noted that the
Conservation Commission is familiar with the site.
He said he was familiar with the site, too, and believed that it
is out of the flood plain. Mr.
Holt asked if there is an access road now.
Mr. Herrick said yes. Mr.
Herrick said it is between the I-89 ramp and the first driveway of two
which serve two houses before the building supply company.
He said it is right across from Knoxland Equipment.
Mr. Herrick said the road will be improved to accommodate the
equipment using it. Mr. Rodgers MOVED to approve the use variance for Warner Aggregates,
LLC since they have met the five requirements, including that there will
be no degradation to the abutting land, homes or commercial enterprises.
He further MOVED that the five conditions agreed to by the
Conservation Commission be added to the approval, including: 1.
Any construction equipment leaking fluids upon arrival at the
site will not be allowed to remain on the site. 2.
No washing of construction equipment be allowed on the site. 3.
The amount of fuel in the construction equipment stored on the
site will be kept to a minimum. 4.
Construction equipment will be stored on the site for the minimum
amount of time necessary to conduct the auctions and allow purchasers a
reasonable amount of time to remove their equipment, typically not more
than 10-14 days total. 5.
Any wetlands on the site will be identified as such by the owner. 6.
There will be a fluid recovery protocol developed between Mr.
Herrick and the auctioneering company. Mr. Nolen seconded. Mr. Davies noted that the sketch provided delineates the portion of
the 60 acres to be used. He
suggested that another item be added that the auction activity will not
take place past 600 feet from the boundary on I-89.
Ms. Thoits said that she thought when they went for the site plan
from the Planning Board that would be considered.
Mr. Davies replied that in theory that is right, but unless
something is referenced here, there are no other documents saying where
he intends to hold the auctions. Mr.
Rodgers asked Mr. Herrick if in the outlined area provided the furthest
point from I-89 is about 600 feet. Mr.
Herrick said yes, give or take some.
He added that they cannot go into the wetlands.
Mr. Rodgers said he did not want to throw a number out there and
then discover that they really needed another 50 feet or so.
Mr. Herrick said that he would like to double-check the number of
600 feet to be sure that it would work for them. Mr. Rodgers MOVED to AMEND the motion to add that the auction
activity will not take place past 650 feet from the lot line which abuts
I-89. Mr. Nolen seconded. The vote was taken on the motion.
Mr. Holt, yes; Ms. Loz, yes; Mr. Nolen, yes; Mr. Rodgers, yes;
Ms. Thoits, yes. The motion
was PASSED unanimously. Ms. Thoits said that they will now have to go to the Planning Board
for a Site Plan Review. Mr. Herrick and Mr. Cleary thanked the Board and left. 2. CASE #08-08:
SPECIAL EXCEPTION a.
Applicant: Richard
Fisher, b.
Property Location: c.
Proposed Use: Dog
kennel. d.
Special Exception to Zoning Article VI of the Warner
Zoning Ordinance. Request
Special Exception in order to operate a dog kennel which has been
operated for the last eight years.
a. Review Application – Accept/Reject/Continue
b. Public Hearing
c. Action Taken – Approve/Disapprove/Continue Mr. Barnard returned to the table and
will be voting for the rest of the meeting. Ms. Thoits recognized Richard Fisher and
his attorney, John Cronin, and asked them to explain the Special
Exception request. Mr.
Fisher distributed some pictures of the dogs, a plan of the property and
some letters from various customers to the Board members.
Mr. Fisher said that it has actually been 9-1/2 years that he has
had the kennel, not 8. Mr.
Fisher said that it was decided at the last Zoning Board meeting that he
was required to request a Special Exception in order to operate the
kennel. He said he leased
the property beginning in September 1999.
He said when he came in to register his dogs, he asked Judy
Rogers, the Town Clerk, what he needed for a kennel permit.
He said that she told him that there is a multiple dog license
which costs $25 a year. He
said he assumed that by doing that he was complying with the law.
He said he found out this year that he was in error and is now
before the Zoning Board requesting the Special Exception for the kennel.
He said in 1999-2000, he had 12 to 14 dogs on the property all
the time. Now, however, he
said he has 4 dogs. He said
most of his efforts now are geared toward US Customs and other law
enforcement. He said that
the business is becoming a luxurious hobby that he can no longer afford
to do. He said that he has
had to cut back because he cannot afford to compete anymore.
Mr. Cronin said that he was there to
assist Mr. Fisher in the application.
He said that the Special Exception in the Zoning Ordinance is
straightforward. He said
that 3 of the 4 criteria have to be met in this application.
The first is the use requested is permitted under the use table
and it clearly is under the designation as “commercial stables,
kennels and veterinary hospitals” are permitted in the R-2 district by
Special Exception. Mr.
Cronin said the second criterion is that the requested use is essential
or desirable to the public convenience or welfare.
He said that black Ms. Thoits asked if there were questions
from the Board members. Mr.
Davies asked that Mr. Fisher explain the drawings of the site plans.
Mr. Fisher said there is one plan that shows how it was in 1999
when he took over the property. He
said there was a dilapidated barn. He
said he added a fence in 1999 and made an addition for indoor housing
that was attached to a two-car garage.
He said that a shed that collapsed last winter has been replaced
with a new building. He said
that the barn collapsed in 2000 or 2001 and he moved the barn at that
time to a new foundation and restored it to the post and beam barn that
was originally on the property. He
said on the 2008 plan, a hedgerow that he built to contain the dogs can
be seen. He said that the
changes since 1999 have only been to improve the property.
Mr. Rodgers asked if the sheds that Mr.
Fisher re-built were structures that were there already.
Mr. Fisher said yes. He
said that the shed that collapsed last winter was moved back against the
dog fence. Ms. Loz asked if
the dogs are penned. Mr.
Fisher said yes and added that he built the hedgerow that covers the
whole property line. Ms. Loz
asked if the dogs are contained in the area.
Mr. Fisher said his boarding dogs are all contained.
He said he has dogs that he owns that stay in the front yard.
Mr. Holt asked how many dogs he has.
Mr. Fisher replied that he currently owns four dogs.
He said he is not training any dogs right now because it’s
hunting season. Ms. Loz
asked how many dogs he has at one time.
Mr. Fisher said in 1999 he had 14 when he was traveling.
Now, however, he said he doesn’t travel anymore.
People will bring their dogs to him for the day to train and then
will leave. Mr. Rodgers
asked if he said that he leased the property.
Mr. Fisher said he initially leased it but then bought it after
three years. Mr. Davies asked if there was any
communication received from the Town over the years regarding the dogs.
Mr. Fisher said no and added that everyone knew he was there.
Mr. Davies asked if any of his neighbors or friends had written a
letter or talked with him about the dogs.
Mr. Fisher said no and that everyone was under the assumption
that he was doing things the way they should be done.
He said when he paid for the building permit with a Mink Hills
Kennels check, the Selectmen said that he was running a business and
that is why he is now requesting the Special Exception.
He added that after nine years, he is actually downsizing and not
looking to expand. Ms.
Thoits asked if he is only asking to do what he has always been doing.
Mr. Fisher said yes. Ms. Thoits asked if there were more
questions from the Board. There
were none. She then closed
the meeting and opened the Public Hearing, asking if there were any
abutters who wished to speak. James
Von Vett of Mr. Von Vett and Debra Buckley sent a
letter to the Board which is reproduced in its entirety below: “ “Warner
Zoning Board of Adjustment “ “Warner,
NH 03278 “Dear
Zoning Board Members, “This
is in response to the request for a special exception to the Warner
Zoning ordinance, for the kennel that has operated in defiance of the
aforementioned ordinance for the past eight years. “When
we took residency in this house in May of 1997, there was no kennel next
door. When Mr. Fisher moved
in, it was a while before we realized that he was operating a kennel,
and we did not realize that he had not taken the appropriate measures in
regards to the zoning laws. “Throughout
the years he has been there, we have had to put up with noise and
nuisance. He uses a shrill
whistle when training the dogs, and has been known to be out there using
it as early as “Our
house sits very close to the property line, and it is there that much of
the activity goes on. This
Summer, while studying for my Master’s degree, I had to listen to his
backhoe for over twelve days straight, from morning until about 7:00
P.M. at night, as my home filled with diesel fumes, as he worked on
preparing an area for new kennel buildings, which he built without a
permit. I kept a log, and I
have videotape if it is needed. The
houses are close enough that we can hear Dick’s smoke alarm go off,
and one Sunday afternoon we went over there, concerned, because it was
going off for so long. We
were afraid that perhaps he was not home, and something was on fire.
Our house is too close to his kennel. “Dick
is not one to follow rules, as was evidenced by the fact that he built a
woodshed without a building permit years ago (which sits too close to
our property line), and most recently began building a building right on
top of the property line. When
Jim told him he could not build it that close, he said he could.
When Jim asked to see his building permit, he said he did not
need one. Ken Benward told
him that he did, in fact, need a permit, so he applied for one.
Meanwhile, he kept right on building even though he did not have
one. We know this, because
we checked with the town administrator, who said she would send him a
letter. Also, as we are in
an R-2 zone, it is our understanding that the building must be 25 feet
from the property line, and not the 15 feet away where it now sits.
The town administrator told us that these buildings were for
animals, so this is all related to his kennel.
He also has signs out in front of his property that we were told
he needed permits for, which he does not have. “Since
Mr. Fisher sees no reason to live by the rules that are put in place, we
see no reason to believe that he will abide by any guidelines that are
put in place regarding this kennel activities.
We are dog lovers, but did not move in next to a kennel, and were
in no way prepared for the amount of noise and activity that would
follow Mr. Fisher’s entrance in to the neighborhood.
We are, in short, opposed to a special exception to Zoning
Article VI of the Warner Zoning Ordinance, to allow the operation of a
kennel on the abutting property. “Sincerely, “Debra
Buckley /s/ “James
Von Vett /s/ “ “Warner,
NH 03278 “cc:
Warner Board of Selectmen” Ms. Thoits asked if there were other
abutters wishing to speak. Charlie
Goodwin said that he lives at Mr. Goodwin sent a letter to the Board
which is reproduced in its entirety below: “ “Dear
Members of the Warner Zoning Board of Adjustment, “I
am writing to express my approval for Dick Fisher’s kennel enterprise.
I hope you will authorize it. “I
hope that in this, and also in similar situations, you will look
favorably upon small home businesses.
They are an asset to their owners and to the community.
The scale of my [sic] Dick’s venture works very well within our
neighborhood. “Thank
you for your attention. “Sincerely, “Charlie
Goodwin /s/ “ “Warner,
NH 03278 “603-456-3885” Ms. Thoits asked if there were other
abutters wishing to speak. There
were none. She then asked if
there were any members of the general public who wished to speak.
Dennis Inman of Bob Shoemaker stood and said that he is
not an abutter, but is a friend of Mr. Fisher’s.
He said that the quality of the dogs that he turns out are highly
disciplined and are not an out-of-control pack of dogs running around
and making a lot of noise. He
said he thinks Mr. Fisher does a great job with his dogs.
In addition, he said, Mr. Fisher is probably not the only person
in town who actually raise dogs without a home business permit.
He said that people who are breeding dogs are in a for-profit
situation, so he said he doesn’t think that Mr. Fisher’s situation
is unique. There were no other members of the public
wishing to speak. Ms. Thoits
closed the Public Hearing and re-opened the meeting and asked if there
were any more questions from the Board.
Mr. Nolen asked how much gunfire is used in the process of
training. Mr. Fisher said it
was very seldom. He said he
has a small training field on the property.
He said the gunfire is not relevant to his kennel permit because
he can train his own dog in his field and shoot birds in his field
without coming to the Zoning Board.
He said as far as the sound of the whistles and the backhoe work
goes, it is no different than the noise that comes from the baseball
park. He said that noise is
accepted from the baseball park because it’s children.
He added that other people use whistles for training, too.
He said that he doesn’t shoot that much, but he is allowed to
do that without the kennel permit and without the Special Exception.
Mr. Rodgers asked Judy Rogers if there is
any limit the town has on the number of dogs you’re allowed to own.
Ms. Rogers said that under the laws that dictate a group license,
it only refers to five or more. Mr.
Rodgers asked if someone could have 200 pets if they wanted.
Ms. Rogers replied yes, she doesn’t know of any law that would
prevent it. Mr. Rodgers
noted that it is nice if neighbors get along and are happy.
He said he feels for Mr. Von Vett, however, if he were not
running a business and he had 10 personal dogs that he was training, the
only difference is that he has some liability insurance under the law.
He said he would be in favor of granting the Special Exception,
based on the fact that most of the other neighbors don’t seem to mind.
And, he said, even if they did, the point is that if he wants to
have 15 personal dogs, he may. And,
he continued, saying that he cannot sell one in order to make a profit
in his opinion is somewhat unreasonable.
He said that he does feel for any neighbor who is disturbed by
loud operations. He added
that he lives across from Harry’s and next to Warner Power and hears
that kind of noise. Mr. Davies asked Mr. Von Vett if he had
ever sent a letter to the town stating his concerns, given that he noted
in his letter that they had kept a log and a videotape.
Mr. Von Vett said no. Mr.
Davies asked Mr. Fisher about the report that dogs were barking all
night and if this is normal. Mr.
Fisher said he has a tape recording and he thinks there are some people
in the audience who can attest to the dogs people are hearing are not
his. Ms. Loz asked if the dogs are completely
enclosed in pens and other structures for the majority of the time when
they are not being trained. Mr.
Fisher replied yes when he has boarding dogs in, but his personal dogs
generally sit in the front yard. He
said that if dogs are in training, they must go through a house program.
He said if he is not home, the dogs are inside the garage area
which is the kennel facility. He
said that the turnout yard has a 5-foot high security fence.
Ms. Loz said that the stipulation in the ordinance is that they
be completely enclosed in pens or other structures.
Mr. Fisher said when he is not working with the boarding dogs,
they are contained in the pens. Ms. Thoits asked if there were any other
questions. There were none.
Mr. Rodgers MOVED to grant the Special
Exception to Richard Fisher based on conversations and the feeling that
having dogs on his property is not an inconvenience to the public and
what he does with his dogs does provide a service for the greater good.
This request is approved based on having met the guidelines for a
special exception in the R-2 district.
Mr. Barnard seconded. Mr. Davies asked if the Board members
would consider putting an outside limit on the number of dogs that he
may have on site. He said
that the alpaca farm said they would have around 30; the Board gave an
outside limit of 60; and, they haven’t had any more than 30.
But, he asked if Mr. Rodgers would add something like that to the
motion. Mr. Rodgers replied
that based on what the Town Clerk said that the town does not have an
existing ordinance saying that you are limited to a maximum number of
pets, he would not agree to add anything to the motion.
Ms. Thoits said she saw no need to set a limit on the number of
dogs. Mr. Davies said that
the Ordinance provides that restrictions can be put on Special
Exceptions. Mr. Rodgers
asked if it would make sense to ask Mr. Fisher, based on his experience,
what the maximum number of dogs he would have for training purposes.
He added that this would then become problematic because he may
have some there for day classes and none were staying overnight and
someone else shows up with a puppy.
Mr. Fisher said in the past the most dogs he had were 14 back in
1999. Mr. Rodgers asked if
Mr. Fisher would be uncomfortable with the Board setting a limit on the
number of dogs he could have on the property.
Mr. Fisher said he thought Mr. Rodgers had already answered it
because he could have all the dogs he wants on his property.
He added that as he gets older he does not want to have so many
dogs anymore. He said that
currently the maximum that he takes in is two dogs.
There was some further discussion about limiting the numbers of
dogs. It was concluded to
not limit the numbers if the Special Exception is to be granted.
There was no further discussion. The vote was taken:
Mr. Rodgers, yes; Ms. Loz, yes; Mr. Barnard, yes; Mr. Holt, yes;
Ms. Thoits, yes. The motion
was PASSED unanimously. Mr. Fisher thanked the Board and left. 3. CASE 09-08:
SPECIAL EXCEPTION a.
Applicant: Michael
Johnson, Omnipoint Communications, Inc., 202 Broadway, Providence, RI
02903 and SBA Communications Corporation/Howard Kirchner, 900
Cummings Center, Ste. 204U, Beverly, MA
01905 b.
Property Location: c.
Proposed Use: Wireless
telecommunications facility – collocation. d.
Special Exception to Zoning Article XVIII. 3E of the
Warner Zoning Ordinance and Section 1000.00 of the Wireless
Telecommunication Facility Ordinance.
Request a Special Exception in order to add a ten (10) foot
“radome” extension to the existing 81 foot unipole so that it may
clear tree-line and provide coverage to its customers.
Applicant will place three (3) antennas inside the pole.
Additionally, applicant proposes to install two (2) BTS cabinets
or pre-cast concrete pads within existing compound.
a. Review Application – Accept/Reject/Continue
b. Public Hearing
c. Action Taken – Approve/Disapprove/Continue Ms. Thoits recognized Michael Johnson who
represented Omnipoint Communications, Inc. which is also known as
T-Mobile. He said that
originally T-Mobile had a roaming agreement with another company which
was recently bought out and the new company is not honoring the roaming
agreement. Therefore, he
said, T-Mobile has to build their own so that when the new company takes
over, T-Mobile customers will not lose their cellular service.
He said there are two sites tonight; the first one is on Mr. Barnard asked about the concrete
structure for some more equipment at the site.
Mr. Johnson replied that there is already a fenced-in compound
and has enough for any carrier that may collocate at the site.
He said they would pour a concrete pad for stability inside that
fenced-in area. Mr. Rodgers
said that he thinks that a couple of ten-foot sections added onto
existing poles are going to be less dramatic than having many poles all
over town. Ms. Thoits
agreed. Mr. Johnson said
that they only want to put up the ones that will suit their needs.
He said that with these types of poles, you cannot do anything
with the bottom 60 feet. Mr.
Davies asked Mr. Johnson to repeat what he had said about perhaps not
putting on the top section. Mr.
Johnson referred to the structural drawings which were submitted when
the pole was built and said that they will be the third one.
He said they are not proposing to add to the 90-100 foot section.
He said they are looking at the 80-90 foot section.
He said the section will look just like the rest of the tower
since they have ordered them from the same tower company.
Mr. Davies asked about the coverage maps.
Mr. Johnson said that they need both sites so there will be an
uninterrupted signal through all of Warner.
He said they are also going up and down I-89 to the other towns
where they have lost the roaming agreement.
Mr. Davies commented that these are
probably Planning Board questions, but he wondered about the certain
percentage of leased area based on the height.
Mr. Johnson said that yes, those would be dealt with at the
Planning Board. He said
there is a leased area. He
said he thinks the fenced area is 70 x 70, but he is not sure.
He said that they are proposing a 20 x 20 area and that entire
area won’t be used – it is that large so they can open the doors of
their cabinets and work on their equipment.
Mr. Davies asked if any houses can see the lower part of the
assembly. Mr. Johnson said
no, it is pretty dense. He
said their ice bridge will only be above the cabinets which are four
feet high. He said it is to
protect the cable so if ice falls from the pole, it won’t rupture one
of the cables. Mr. Davies
asked if there is an antenna on the ice bridge on the southerly side.
Mr. Johnson said yes, it’s a small GPS antenna and it sits on
top of the ice bridge. He
said that the engineers determined that if it’s facing that way it can
get the signal from the satellite. Mr.
Davies asked if any other trees need to be cut.
Mr. Johnson said no, they would only use the existing compound.
Ms. Thoits asked if there were more
discussion. She closed the
meeting and opened the Public Hearing.
Howard Kirchner said that he is the land owner and has the lease.
He said that SBA built the tower.
He said that he has no objection to the proposal and per the
lease he has no legal right to object in that he agreed by signing to
give his approval to anything that co-sponsors would add to the tower.
He said so long as everything is internal, which is what he
agreed to originally, there is no objection.
Mr. Johnson said that everything is inside with nothing touching
the outside of the pole. Mr.
Kirchner said there are no abutters who could possibly see the site.
He said it’s in the middle of the woods and someone would have
to go out of their way to see it. He
added that he thinks that very few people in town even know it’s
there, although it is visible from There were no other public comments.
Ms. Thoits closed the Public Hearing and re-opened the meeting.
Mr. Davies asked about a note on the drawing that says
“required by FAA to have a light” and asked Mr. Johnson if it is
required to put a light on it. Mr.
Johnson said it does not qualify for the light.
There was no other discussion. Mr. Barnard MOVED to accept the Special
Exception for to add 10 feet to the pole since it meets all the
qualifications necessary for a Special Exception in the R-3 Zoning
District. Mr. Holt seconded.
There was no discussion. The vote was taken.
Mr. Holt, yes; Mr. Barnard, yes; Mr. Rodgers, yes; Ms. Loz, yes;
Ms. Thoits, yes. The motion
was PASSED unanimously. 4. CASE 10-08:
SPECIAL EXCEPTION a.
Applicant: Michael
Johnson, Omnipoint Communications, Inc., 202 Broadway, Providence, RI
02903 and American Tower Corporation/Tobias Nickerson, 10
Presidential Way, Woburn, MA 01801 b.
Property Location: 791
Route 103 East, Warner, NH, Map 3, c.
Proposed Use: Wireless
telecommunications facility. d.
Special Exception to Zoning Article XVIII. 3E of the
Warner Zoning Ordinance and Section 1000.00 of the Wireless
Telecommunication Facility Ordinance.
Request a Special Exception in order to install nine (9)
telecommunications antennas at an AGL of 80 feet on the existing
monopine. Applicant also
proposes to install three (3) BTG cabinets on two (2) precast concrete
pads. Additional telco/power
cabinet and battery back-up will also be added.
a. Review Application – Accept/Reject/Continue
b. Public Hearing
c. Action Taken – Approve/Disapprove/Continue Ms. Thoits asked Mr. Johnson to review
this site. He said he is
representing Omnipoint Communications and this is the second site that
will help them to cover the Town of Mr. Rodgers asked if it was going to be
taller. Mr. Johnson replied
that the antennas would be stuck within the branches there so it would
not be taller. He said this
will allow them to cover the Town of Ms. Thoits asked if there was anymore
discussion. Mr. Davies asked
if the reason for the Special Exception is because a different owner is
coming in, since the height is not being changed.
Ms. Thoits said yes. There
was no further discussion. Mr. Rodgers MOVED to approve the Special
Exception for Omnipoint Communications at the 791 Route 103 East
location to add to the existing telecommunications pole, having met all
of the Special Exception criteria. Mr.
Holt seconded. There was no
discussion. The vote was taken.
Mr. Rodgers, yes; Ms. Loz, yes; Mr. Barnard, yes; Mr. Holt, yes;
Ms. Thoits, yes. The motion
was PASSED unanimously. Mr. Johnson thanked the Board and left. 5. MINUTES Mr. Rodgers MOVED to approve the 6. COMMUNICATIONS Ms. Thoits reminded the Board members
that when they are not going to be able to attend a meeting, they need
to let the secretary know because last time there was no quorum.
Mr. Rodgers MOVED to adjourn.
Ms. Loz seconded. The
motion PASSED unanimously. The
meeting was adjourned at
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