|
Zoning Board of Adjustment Warner, NH Meeting Minutes Members Present:
Martha Thoits – Chair Ted Young Rick Davies Gordon Nolan Mike Holt Absent:
Eric Rodgers
Janice Loz 1. Case 509 Variance Applicant: Cheryl Blais, Property Location: Map 30 Proposed Use: Variance to allow pet sitting and boarding Ms. Thiots asked the Board to look at the
application for thoroughness. Ms.
Thoits explained to the applicant that she was to complete the
application with the 5 reasons why a variance is needed.
Because the Board determined the application was not complete and
there would be no impact to the business the Board unanimously agreed to
post pone the hearing until January 2010. Rick Davies moved
not to accept the application and table case 509 until January 2010 as
well as waiving any additional fees.
Motion was seconded; all were in favor, the motion passed. 2. Richard Fisher – Informational Ms. Thoits said that Mr. Fisher was sent
to the Zoning Board by the Board of Selectmen because they were not sure
what to do. She said
basically the Zoning Board is not allowed to do informational or
conceptual meetings as is the Planning Board.
She said the Zoning Board will allow Mr. Fisher to tell them what
he wants. She also said the
Zoning Board will not make any decisions this evening nor is this a
hearing and the public is not invited to speak.
Mr. Fisher will be the only one allowed to speak.
Ms. Thoits said the Selectmen have asked for the opinion of the
Zoning Board on what should be done on the shooting range or whatever
it’s called. Ms. Thoits
called upon Mr. Fisher to speak. John Cronin, an Attorney helping Mr.
Fisher spoke to the Zoning Board and explained that Mr. Fisher asked him
to attend as a help in the process.
Ms. Thoits allowed Mr. Cronin to speak.
Mr. Cronin said he understands back in August a Cease &
Desist Order was served to Mr. Fisher as a result of complaints from
neighbors about shooting activities that were taken place on his
property. The Selectmen completed a visual inspection of Mr. Fisher’s
property as well as surrounding properties trying to understand the
complaints. Mr. Cronin
believes the Selectmen specifically has charged the Zoning Board for
some opinion as to whether or not the activities taking place on Mr.
Fishers property are zoning issues or police issues.
Mr. Cronin suggests that the Zoning Board look at the specific
activity that is going on and he said what Mr. Fisher would tell you is
this is an activity being conducted by a private citizen, a resident,
and as a recreational activity. Mr.
Cronin said it is not associated with a business, a commercial
enterprise and it is not formalized like a club or an organization.
Mr. Cronin thinks the threshold inquiry for this Board is to
determine whether or not a private recreational use of residential
property is appropriate. Mr.
Cronin feels there are some instances where he feels the Zoning Board
could have the authority under the Zoning Ordinance to scrutinize
question and potentially either allow or disallow recreational uses on
personal property. He said
in 2003 NH Legislature with respect to firearms preempted, took away the
ability of municipalities from having the authority and jurisdiction
over the sale, purchase, ownership, use, possession, transportation,
licensing, permitting, taxation or other matter pertaining to firearms
in the State. Mr. Cronin
said the key word is the use of firearms. He said the State has
preempted this town from regulating.
Mr. Cronin approached the Board and provided copies of the 2003
legislature with respect to firearms.
Martha Thoits asked Mr. Cronin if this information was provided
in the letter that he sent to the Selectmen.
Mr. Cronin said yes. He
also said that he does not practice law but he tries to get the
information out and made available. Mr. Cronin said when Mr. Fisher was served
with the Cease & Desist Order, he said in his opinion Mr. Fisher
could have ignored it based on legal advice.
But he is trying to get this resolved at the local level.
Mr. Cronin continued by saying because this is an issue, and will
continue to be a significant issue or emotional issue for many people;
he said it has the potential to make this town and Mr. Fisher a poster
child for the gun or anti-gun lobbyist.
Mr. Cronin said that it is not Mr. Fisher’s intention, nor his
intention despite the fact that Mr. Fisher has had to sit on his hands
for the last 4 ½ months prior to coming before the Zoning Board.
He said Mr. Fisher would like to try to resolve this as a good
citizen and neighbor. Mr.
Cronin said if Mr. Fisher chose to go another route they would not be
before the Zoning Board, they would be in Superior Court and the battle
lines would have already been drawn. Mr. Cronin said he does not know how this
Board needs to analyze the underlying facts.
He said there are bits and pieces of the Selectmen’s minutes
which he suspects they have read that will summarize both sides of the
issue. Ms. Thoits confirmed
that they have received copies of the Selectmen’s minutes.
Mr. Cronin said there are people in attendance that can provide
objective evidence if the Board so chooses to hear it on the specific
activities taking place prior to the Cease & Desist Order.
Mr. Cronin believes that RSA159:26 preempts a municipality from
regulating the use of firearms when they are being used by a citizen on
his/her private property; it is regulated by the State. Mr. Cronin said
because we are dealing with a private property and the right to conduct
certain activities on private property as a private individual for
personal purposes, not commercial or club purposes.
Mr. Cronin said he could raise a number of other issues but he
thinks they are inappropriate at this particular point in time because
we are essentially saying please ladies and gentlemen of the Zoning
Board give us your best opinion as to whether or not this is a zoning
matter. Mr. Cronin suggests
however that a zoning issue is not being discussed but rather an
activity that under the law should not be relegated through the
municipality. Ms. Thoits spoke to the members and asked
if this is a zoning issue. Rick Davies asked if they are dealing with
an appeal for an administrative decision.
Ms. Thoits said that is one way Mr. Fisher could go, appealing
the Selectmen’s decision for the Cease & Desist Order. Ms. Thoits doesn’t see anything besides
the nuisance ordinance that would apply to this circumstance. Rick Davies said the question would be, as
a Board, if the Selectmen made an error in their interpretation of the
Zoning Ordinance. He said
the other point is Mr. Fisher may apply for both an appeal of decision
and a variance at the same time and if is accepted as an error then a
variance may possibly be the next step. But
there is a time limit on appealing a decision which is 20 days. Mr. Nolan confirmed with Mr. Fisher that
the Cease & Desist was issued in July.
Mr. Fisher said yes, in the mean time he has been to two
Selectmen’s meetings, he said it was then decided to send him to the
Zoning Board. Mr. Fisher
said the Zoning Board canceled in November.
Ms. Thoits clarified Mr. Fisher, there was a November meeting,
Mr. Fisher did not apply in both October and November. Ms. Thoits clarified that the Cease &
Desist Order is dated Mr. Nolan asked Mr. Fisher the status of
the Cease & Desist. Mr.
Fisher said that he is honoring it. Mr. Cronin said to be fair to the Town
Administrator the Cease & Desist Order prior to Mr. Fisher applying
or appearing in front of anyone, he doesn’t think, since that time at
the Selectmen’s meetings that Mr. Fisher attended it was said that he
has a shooting range, this seems to indicate that Mr. Fisher is
operating a business and that’s not the case.
Mr. Cronin said what type of use needs to be determined and he
argues that it is not a commercial use.
Mr. Cronin said arguably the Cease & Desist is really
inapplicable because it’s not a commercial operation.
Mr. Cronin said if the minutes are read from the Selectmen’s
meetings in August and September, it seemed clear to him that they want
Mr. Fisher to go to the Zoning Board for an opinion. Rick Davies asked if the Selectmen sent a
letter to the Zoning Board directly saying …… Ms. Thoits said she
never saw one and thinks it came through to the secretary at the time.
Mr. Fisher was to come in to request to be placed on the Zoning
Board agenda and at that time she was told Mr. Fisher wanted to wait
because he was going moose hunting.
Mr. Fisher said the Selectmen’s secretary told him he did not
need to be on the agenda because it was an informal hearing so he
thought he was all set to come in and showed up and the meeting had been
canceled. Ms. Thoits told
Mr. Fisher he needs to communicate with the Land Use office to be placed
on the agenda. Ted Young said in reading the Cease &
Desist it reads to him as more of a noise issue but indicates he is
running a business. Mr.
Young said the issue that may be violated in the Zoning Ordinance is the
nuisance provision more than the business at this time.
The business part is a second issue.
Mr. Young said that he has talked to one of the abutters and
another issue may be the clay pigeon debris landing on abutting
properties because of the lead. Mr.
Fisher said the Selectmen have been out as well as the Police and all
shots remain on his property. Mr. Davies said point of order, these
points should not be discussed at this time. Ms. Thoits said the charge for this
evening for the Zoning Board is does Mr. Fisher need to come before the
Zoning Board. Ms. Thoits
said to the audience that this is not a Public Hearing and the public
may not speak. Rick Davies suggests Mr. Fisher submit an
application relative to the decision for noise and if the decision of
the Zoning Board is that the Selectmen made an error at the same time
have an application for a variance relative to whatever situation they
want for someone making noise. Ms. Thoits said Mr. Fisher is not happy
with the Cease & Desist Order and he would like to appeal that
decision even though it is not a business, or the Selectmen can withdraw
the order. Mr. Nolan
said the Cease & Desist should be dissolved if he is not running a
business. Ms. Thoits asked
if the Selectmen can withdraw the Cease & Desist or does Mr. Fisher
need to appeal to the Zoning Board.
Mr. Nolan said it’s not up to the Zoning Board to judicate the
validity of the Cease & Desist. Ms. Thoits said the Zoning Board does not
do informational hearings but Mr. Fisher was sent to the Zoning Board so
she said the opportunity could not be denied. Mr. Cronin said as they see the Cease
& Desist Order it is based on operating a business and if the
presentation to this board by Mr. Fisher is not running a business then
the Cease & Desist Order is a moot point. He
said if he understands what the Zoning Board is saying if it’s not a
business then the Zoning Board does not have any jurisdiction over that,
but may have jurisdiction over noise.
Mr. Cronin then said the threshold question is if there is
jurisdiction because it’s a zoning issue then he suggests the Zoning
Board obtain outside advise as to whether or not this is a municipal
issue at all because of the statute. Ms. Thoits asked the Zoning Board members
for direction. Ted Young said the Selectmen are saying
Mr. Fisher is running a commercial business, he said this Board does not
have any knowledge of that. Ms.
Thoits said the Board would have to obtain knowledge of the business if
Mr. Fisher appealed the Selectmen’s decision.
Ms. Thoits explained if the Selectmen do not rescind their
decision then Mr. Fisher must appeal to the Zoning Board.
Ms. Thoits asked the members if it is their opinion that Mr.
Fisher needs a variance against Article IV Section H of the Zoning
Ordinance (nuisance). She
said if the Selectmen say that it is not a business does Mr. Fisher need
a variance to continue or does the Selectmen need to keep the Cease
& Desist in place and come for both issues on the same night, appeal
the Selectmen’s decision and a variance for the nuisance provision.
Ms. Thoits asked for an opinion. Ted Young said although residents are
allowed by law to shoot on their own property, you cannot shoot within
300 feet of another property with a dwelling.
Ms. Thoits said she spoke with the Town Administrator who spoke
with the Police that said Mr. Fisher’s set-back were all right.
Ms. Thoits said that this cannot be discussed until there is a
variance against. Mr. Young
said he’s discussing the Cease & Desist letter that says nothing
in reference to the actual shooting or noise factor.
Ms. Thoits said the Board cannot rescind the Cease & Desist
this evening. Ms. Thoits
said the question before the Board is does Mr. Fisher need to apply for
an appeal or could the Selectmen rescind, that is what she does not
know. Mr. Young said if the
Selectmen are under pressure from the abutters that felt the noise
violation was in existence they could force an application for a
variance. Ms. Thoits said
no, an appeal to the decision. Mr.
Young said but they don’t address the noise factor. Mr. Cronin said it may be helpful for this
board to say based upon the information you have received from Mr.
Fisher that it does not appear he is operating a business, and if he is
not operating a business then the Zoning Board does not have
jurisdiction on the activity. He
said the Zoning Board may have jurisdiction over the nuisance provision,
he said however, that jurisdiction needs to be analyzed in light of the
statutory referencing. Mr.
Cronin said if he was in their position he would ask his Board of
Selectmen to go to Town Counsel for an opinion.
Ms. Thoits said she does not feel the Board can go on without
advice from Town Counsel. Mr.
Cronin said he has tried to meet with the Board of Selectmen; they have
purposely or otherwise deflected that meeting until after this meeting
takes place. Ms. Thoits said
they were waiting to see what the Zoning Board’s decision would be.
Mr. Cronin said so they wouldn’t have to make one hopefully. Mr. Young feels that a Public Hearing is
in order so that abutters’ comments could be accepted.
Mr. Holt said the Selectmen’s minutes from August covers the
many complaints. Ms. Thoits
does not feel a Public Hearing is necessary, she said she also agrees
with Mr. Cronin that guns are a strong issue both ways.
Ms. Thoits said it is her opinion that Mr. Fisher needs a
variance for the nuisance provision, and if the Board chooses that path,
discussion needs to take place with Town Counsel before the next
meeting, if Mr. Fisher puts in an application.
Ms. Thoits asked for Mr. Davies opinion.
Mr. Davies said he was going to ask her opinion on the
administrative decision application.
Ms. Thoits clarified that the Cease & Desist Order does say
Mr. Fisher is violating the nuisance provision.
She said she thinks he needs to appeal the Selectmen’s decision
and apply for a variance. Mr. Davies asked if there should be a
motion. Ms. Thoits said this
is an informational meeting. Ms. Thoits asked Mr. Young for his
opinion. Mr. Young said its
two parts; the Selectmen need to decide where they stand on the fact
that a business may be in operation, and he needs to come back on the
noise issue. Ms. Thoits said
that would come out in the appeal, is he truly running a business.
Mr. Holt said that Mr. Fisher does have a
business on the property. Ms.
Thoits said Mr. Fisher has a kennel, which is a different business.
Mr. Fisher said after the Cease & Desist was issued he went
to the Selectmen and asked if it would have an effect on his training of
his dogs and they said no. Ms. Thoits asked the Board members if they
are in agreement that Mr. Fisher needs to appeal the Cease & Desist
Order and a variance for the nuisance provision.
Rick Davies agrees. Gordon Nolan disagrees because if Mr. Fisher
is not running a business the Cease & Desist should be moot.
If there are other issues, the Board can deal with them as they
come up. He also said if the
Selectmen do not correct what to him is an obvious error then it would
be incumbent upon this Board to take that responsibility.
Ms. Thoits asked Mr. Nolan if he is in agreement about the
variance for the nuisance provision.
Mr. Nolan said he is gray on that.
Ms. Thoits said in the letter that Mr. Cronin sent he included
the regulation RSA156:26,B5, which states if a shooting range was
established, constructed or being used on a regular basis as of the date
the person acquired the property, she said that would be one reason, but
it does not apply to this. She
said another part of the regulation states provided the owners of the
range are in compliance with any noise control ordinance that was in
existence at the time the range was established.
Ms. Thoits still feels Mr. Fisher needs to obtain a variance for
the nuisance provision. Mr.
Cronin said to Ms. Thoits that the statute she just quoted has nothing
to do with Mr. Fisher; he said Mr. Fisher is not saying he has a
shooting range. Mr. Fisher
asked if he has to apply for a variance to shoot on his property does
everyone in Warner have to do the same?
Ms. Thoits said she guesses if there was substantial shooting and
the neighbors all complained then that person would also have to come in
for a variance. Ms. Thoits said if the Board makes this
decision that Mr. Fisher needs to appeal the Cease & Desist and
apply for a variance for the nuisance provision does this Board make
that decision because there are two Board members absent and there are
two alternates serving. Mr.
Davies said since there is no application brought forward, what’s more
important is in order to appeal the Selectmen’s decision it needs to
be done so within 20 days of the decision.
Ms. Thoits said the decision was made on August 6, she said Town
Counsel may need to advise. Ms.
Thoits also said that Mr. Fisher was told by the Selectmen to come
before the Zoning Board and Mr. Fisher chose not to apply in October.
Mr. Cronin said that the Cease & Desist does not apply to Mr.
Fisher because it says he is running a business.
Cronin said Fisher is not running a business so there is nothing
to the cease or desist, he said he’ll tell Fisher to start shooting on
his property tomorrow and then the Selectmen could issues a Cease &
Desist for a noise violation, then an appeal could be triggered.
Cronin said the Selectmen told Fisher not to run a business, they
didn’t tell Fisher not to shoot guns on the property.
Mr. Young said according to the Cease & Desist Fisher was
ordered to stop shooting. Cronin said a shooting range is a specific
defined entity. Mr. Young
asked Fisher if he is shooting a regular track course.
Fisher said no, he has two machines and you can throw anywhere
you want; he said they are left outside because he is too lazy to bring
them back and forth to the barn. Fisher
said he shot all last winter and know one said a word. Rick Davies said there is possibly two
situations here, a business and noise, two appeals at the same time; or
deal with the Cease & Desist specifically, one appeal.
Ms. Thoits said yes, that’s what she thought she has been
saying. Mr. Davies said
appealing the order specifically, not the noise or the shooting range.
Ms. Thoits said the Cease & Desist needs to go away because
according to the Selectmen Fisher needs to deal with the Zoning Board
first. Ms. Thoits said the complaint within the
Selectmen’s minutes was the amount of shooting on a regular basis.
The abutters stated in the Selectmen’s minutes that Fisher was
shooting upwards of 200 rounds at one time. Ms. Thoits asked Mr. Fisher if he
understands the feeling of the Zoning Board.
Mr. Cronin answered yes, the Selectmen did something proactive,
and arguably it could be a zoning issue.
He said it’s a zoning issue if it’s a business; it’s a
zoning issue if it’s within full purview of the nuisance ordinance.
He said if it’s a zoning issue at all, it’s a zoning issue
because somehow the statutory reference that the Zoning Board has been
provided doesn’t apply. He
said if that statutory reference applies then it’s not a zoning issue
because the State is preempting the Town from regulating this type of
activity. Mr. Cronin
believes the Cease & Desist is moot.
Mr. Cronin believes the Selectmen are asking the Zoning Board if
they have jurisdiction over this matter as it has been presented to
them. Mr. Cronin said that
he will meet with the Selectmen soon and paraphrase what happened at
this meeting and frame the issue the same way.
Mr. Cronin recommended that the Town seek legal opinion. Ms. Thoits feels both the Zoning Board and
the Selectmen should meet jointly with legal counsel.
Board members agreed. Ms.
Thoits said arrangements will be made before the January Zoning Board
meeting to meet with counsel. Mr.
Cronin said he is meeting with the Selectmen on January 29th.
Ms. Thoits informed Mr. Fisher that 3. Meeting Minutes Rick Davies moved
to approve meeting minutes dated 4. Variance Application Draft Mr. Davies provided a draft version of a
variance application for the members to review.
Rick Davies made a motion
to accept the new application form and have the secretary insert
provided mark ups for the other zoning board forms.
Motion was seconded; all were in favor, the motion passed.
5. Adjournment Motion was made at Respectfully submitted, Mary Whalen Recording secretary |