Town of Walpole, NH 30608

Walpole Zoning Board of Adjustment Meeting October 19, 2005

Unapproved Minutes

Members Present: Ernest Vose, Ch., Myra Mansouri, V-Ch., Jan Galloway-LeClerc, Lucy Weber, Larry Britton, William Webb, alt., Leo Carignan, alt.

Presiding: E. Vose, Chairman

Recording: Pamela Aslinger, Secretary

Meeting opened 7:30 pm.

All notices were posted and abutters notified for all hearings.

HEARING #1 - CREG DANCE VARIANCE TO KEEP ALPACAS AND SELL ALPACA PRODUCTS IN A GIFT SHOP AT THIS FARM ON WENTWORTH ROAD. Chairman Vose announced this application had been withdrawn by Attorney Tom Hanna, counsel for Mr. and Mrs. Dance. Ch. Vose handed out a letter requesting the withdrawal to the Board members and some audience attendees remarking that the Dance’s would be addressing the Board at a later date. A copy of the letter is filed with these minutes.

FURTHER DISCUSSION:

Ch. Vose allowed members of the audience to speak although this was not a public hearing, the public hearing being cancelled due to the withdrawn variance request. He asked that the discussion not be directed towards the Dance’s since they were not present to defend their position.

Chuck Bingaman of Wentworth Rd. asked for procedural clarification, if a person came to the ZBA with a concern over a violation of the zoning ordinance, does someone from the ZBA go and inspect, is there an independent verification, so the Board doesn’t operate on hearsay?

Ch. Vose answered that the ZBA is not a code enforcement officer, that depending on what is discussed at an initial meeting, the selectmen are then notified. He agreed that Mr. Bingaman made a good point, a procedure should be in place. He further stated that these types of situations seldom come before the Board.

Alternate Bill Webb reminded that the Selectmen are the enforcing body for the Town, that the Selectmen asked the ZBA to interpret the ordinance and make recommendation on how to proceed.

Lucy Weber stated that a letter was written to the Selectmen from the ZBA as to what’s been alleged, but did not include a finding of fact. She read about “enforcement” in the zoning ordinance page 15, Article XII B. Enforcement (1) “It shall be the duty of the Board of Selectmen, and the Board is hereby given power and authority, to enforce the provisions of the Ordinance. (2) Upon any well-founded information that this Ordinance is being violated, the Board of Selectmen shall take immediate steps to enforce the provisions of this Ordinance by seeking an injunction in the Superior Court or by any other appropriate action”.

Ch. Vose said we try to avoid cease and desist orders, and fines are minimal, but a cease and desist can be given by the Board of Selectmen.

Mr. Dion of Wentworth Rd. referred to the Hanna withdrawal letter questioning whether a person had a right to demand a public hearing prior to a public hearing for the variance, would they be calling for a Town Meeting?

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Ch. Vose stated the Zoning Board and Selectmen thought they had made the right suggestion to have the Dance’s appeal for a variance, but in light of their (Dance’s) legal advisor, it may not have been the correct recommendation. He stated that it’s possible the Dance’s should have applied for an appeal of an administrative decision, so the request by the Dance’s legal counsel for a Public Hearing would be correct, basically to determine the meaning of “incidental use” regarding the llamas.

Ken Walsh attendee, supported the idea that a letter be written noticing violation of the ordinance and how to proceed. Members stated that a letter was written to the Selectmen stating what had been brought to the Zoning Board.

Lucy Weber said she thought the appeal of an administrative decision allowed an applicant to argue they fit within, not depart, from zoning.

Ch. Vose reminded the prior meeting was not a public hearing, abutters had not been notified, only when abutters are notified can a formal review begin, the appeal to an administrative decision allows for a public hearing.

Ken Walsh asked if the Board of Selectmen or ZBA requires alleged violator’s to stop operations by setting a deadline.

Lucy Weber referred back to the ordinance and enforcement, stating there was a lot of latitude in the interpretation, the Board’s would rather err on the side of cooperation and work it out.

Mr. Walsh asked about the pending Site Plan Review for the Bed and Breakfast, he asked if they would eventually come back to the ZBA seeking a variance to operate the gift shop and farm, and would they need only one variance to cover all their different operations.

Mr. Donald Tretler of Wentworth Rd. noted that the Dance’s stated they import products to sell from Maine. He felt that the Dance’s would need three variances for banquet meetings, gift shop and herd of animals.

Ch. Vose stated in the past and by way of a court case, it has been determined farm stands must include at least 50% farm produced goods. Ch. Vose said the gift shop and function portions of the business had ceased. He cautioned the discussion should not be directed at the Dance case, it was not fair since they were not present, to redirect the discussion to general procedures of the Zoning Board.

Mr. Tretler asked how would he know of when this case would be back before the Board, how would he be notified of meeting etc.

Board answered that it holds a regular meeting every third Wednesday of every month at 7:30pm in the Town Hall, abutters would be notified of a public hearing, notices are posted at the Town Hall, Burdick’s Market, the Town website and the Walpolean.

Chuck Bingaman expressed his continued concern over the vague guidance the statutes and ordinance give on how the Board should be acting on violations, a standard practice should be in place, apart from this specific case, not to have it look like rules are being made up as they go.

Mr. Walsh agreed but didn’t understand if the ZBA went by the State statutes or the zoning ordinance.

Mr. Bingaman restated saying if this one case was pushed aside, in general if someone is accused of violating a portion of the ordinance, does it mean if they don’t answer in say 30 days nothing is done, what is the procedure, what if they toss it in the waste basket?

Mr. Webb said a letter would explain to you what to do next, meet with the Selectmen or some other instruction.

Lucy Weber said the ZBA doesn’t have enforcement authority, it lies with the Selectmen, the ZBA can only forward a concern. She noted she had been on the Board for only 4 years and had not seen an enforcement action in that time. She said that whatever procedure might be set up, the next case would be different, she felt becoming too rigid wouldn’t serve applicants or neighbors.

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Mr. Webb and Mr. Vose said decisions made by the ZBA did not set a precedent, each case is heard based on its own criteria, each one is unique.

Mr. Horskin of Wentworth Rd. asked why the ZBA didn’t get a letter from the Selectmen?

Sec. Aslinger did not have copies of all the letters that went to and from in the file, but would locate them and make them available to the Board at subsequent meetings.

Mrs. Sue Bingaman of Wentworth Rd. agreed with her husbands point on procedures, if well taken it assures people all are being treated equally. She would like to see a more specific procedure.

Ch. Vose said he felt anyone appearing before the Board is treated fairly all the way, he’s seen to it everyone is given fair treatment.

Mrs. Horskin said she hadn’t heard until yesterday from a neighbor what was happening and asked the Board for a brief explanation, she said she wasn’t sure what it was all about, they were not abutters.

Ch. Vose said the Dance’s were in violation of the Res. A. zoning ordinance, they were advertising for weddings, functions and conferences on the internet, they claimed the wedding was private, they have 50 +/- alpacas which may be more than incidental to the residence, there is a gift shop, an operating Bed and Breakfast which is allowed but they need a Site Plan Review from the Planning Board, which they have applied for and they were in violation of the sign ordinance.

Mrs. Peggy Dion said assuming things are in limbo, have the Dance’s received a cease and desist order, she felt until a decision is reached they shouldn’t have guests in the Bed and Breakfast or have the gift shop opened. Where does everyone stand? What happens next, what if they continue to expand.

Ch. Vose said a cease and desist order was not issued, some of their operations had been stopped, they could continue with guests and functions they had already booked.

An audience member said the advertising for functions had been removed from their website as of 10/19/05.

Lucy Weber said if the Selectmen are made aware of a violation, they can take court action as the enforcing agents, that the Selectmen wear a lot of hats, and the town doesn’t have a code enforcment officer.

Bill Webb said the point is that the issue was brought to the ZBA, the Selectmen notified, the persons in alleged violation contacted, a decision reached, but now reconsidered and withdrawn and still in the works, the procedure seeming sufficient for now, let it play out with the legal counsel, something may come up at the next meeting as stated in the withdrawal letter, as long as it is in process, not get too excited and push for enforcement, a small town approach works.

Mrs. Sue Bingaman said it is disturbing to see and hear heavy equipment and continued construction going on to enlarge the Dance property, as if they didn’t hear any of the concerns.

Ch. Vose said the Selectmen need to be made aware of continued expansion.

Mr. Dion agrees with the small town approach to working together, but is there zoning or not, understanding everything is on a case by case basis, but he is concerned the Dance’s are only asking for a public hearing now and not a variance.

Ch. Vose said it was likely they would be applying for the appeal to an administrative decision, if it sides with the Dance’s, Mr. Dion could appeal the decision in Supreme Court. Lucy Weber agreed, saying every time the ZBA makes a decision, someone else can appeal it in court.

Mr. Tretler said if someone is doing something that is hurting someone else by what they are doing, does the injured person just wait, do they call the Police, who enforces?

Ch. Vose said the Selectmen need to be made aware of problems sooner than later, and asked if this had been injurious.

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Mr. Tretler said it had been injurious for a long period of time, he had tried to be a patient and good neighbor but saw the property uses escalate.

Mr. Walsh asked if the Board of Selectmen had issued a letter or violation notice, would the Selectmen be required to attend this meeting?

Ch. Vose stated Selectmen Sheldon Sawyer had planned to attend, but since the withdrawal, decided not to attend.

Mr. Horskin of Wentworth Rd. asked where the Residential A zone was in that portion of Town.

Zoning members described the location and boundaries.

Ch. Vose asked for any further questions reminding it was a courtesy to allow the audience input since this was not a Public Hearing, that not all procedures are perfect.

The audience expressed their appreciation.

Mr. Dion said he was sorry about bringing up in August what he thought were four clear cut violations of the ordinance, accumulating over a period of time, he felt bad about dividing the Town and didn’t intend to pit neighbor against neighbor.

Ch. Vose said Mr. Dion was in the right to bring concerns to the Board.

Mr. Tretler said he appreciated Mr. Dion’s efforts.

Mr. Dion said he hoped it ended well.

OTHER NEW BUSINESS: MR. BOB MILLER of 145 AND MR. TONY BOSCO or 161 Blackjack Crossing Road presented the ZBA with a possible zoning ordinance violation in regards to a neighbor living in a camping trailer and two car garage without water or sewer. Mr. Miller said the Selectmen are aware of the situation, and had been for a long time, the Selectmen suggested they appear before the Zoning Board. Ch. Vose said he was also aware, and asked if Mr. Miller or Mr. Bosco had seen if there was septic or an outhouse, he said he thought there was a well to water the lawn. Mr. Bosco said Mr. Christopher lives there all winter long without sewer and water although he thought he could go to the rental at the Ag. Center.

Mr. Miller said the point is, is it permissible to go from living in a camping trailer to a 2 car garage, that the Selectmen have been aware of and allowed this situation for 3 or 4 years. They met with the Selectmen 3 or 4 weeks ago at a Selectmen’s meeting, the Selectmen said they should go to the Zoning Board and the Selectmen would wait for the Zoning Board to get back to them.

Members referred to the zoning ordinance, to determine if a possible violation under Article IV General Provisions section C. Waste water or sewage was occurring. The Board noted the Town does not issue occupancy permits so a situation could go unnoticed. Members agreed, Mr. Christopher should be contacted by the Selectmen and Health Officer to comply with the ordinance septic requirements, referring to a past case where an outhouse was requested. Lucy Weber said the ZBA should send a letter to the Selectmen that the ZBA has received a complaint, if in fact Mr. Christopher was in violation of VI. C. the Selectmen could either refer it to the Health Officer or handle it themselves according to the provisions of the ordinance.

Bill Webb agreed with the procedure as the way to go, but warned this has been a longstanding problem, what kind of results will they get.

Mr. Miller and Mr. Bosco said they would not go away until this is resolved.

Jan Galloway-LeClerc remembered this situation from the past and Lucy Weber reminded that the ZBA does not have enforcement authority.

Mr. Miller and Mr. Bosco said going over as neighbor to neighbor was not an option.

Members discussed writing a letter to the Selectmen as Ms. Weber suggested.

MOTION: A motion was made to write a letter to the Board of Selectmen referring to the

complaint Mr. Miller and Mr. Bosco were making, asking the Board of Selectmen to

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investigate and reply to the Zoning Board, and to notify the Health Officer. Motion was seconded, Ch. Vose asked for further discussion, being none, called for a vote, vote was

unanimously in favor. Mr. Miller and Mr. Bosco asked to have a copy of the letter and the secretary was reminded to send copies to the members.

CONTINUED NEW BUSINESS:

Ch. Vose mentioned the application fee had been approved at the last meeting, although the minutes did not reflect it. He stated the Board did not approve the abutter notification fee. Secretary Aslinger presented additional copies of the Fee schedule she proposed expressing the importance of collecting the notification fee since the postal fee was 2.67 and the cost of the published notification is between $30 - $50. She stated the land use Boards should be covering their expenses by the fees they collect, without the additional fee for notifying abutters, the fee of $75.00 was inadequate. She said the collection of the notification fee would be added to the application fee at the time of application. She said the applicant should also be required to submit an abutter list which is the same procedure for the Planning Board. She stated she would continue to double check the list for errors or omissions. She asked the Board consider adopting the fee schedule as presented at the next meeting, allowing it to be adopted under the by-law requirement of discussing a change at two regular meetings.

MOTION: A motion was made and seconded to consider proceeding with the mechanisms to raise the application fee to $75.00 plus the $5.00 notification fee, to include the fee schedule as part of the application along with the abutter list to be provided by the applicant on the form as presented. Being no further discussion, vote called, all were in favor.

Sec. Aslinger said Mr. Beaudry did not pay his fees for application or notification, that she had made mention of it on his hearing notice, she asked if he had brought it to the meeting. Ch. Vose said he had not, that he would contact him, and to send a reminder letter.

Ch. Vose had not circulated the prior meeting’s minutes via e-mail, rather than reviewing them at this meeting the Board agreed to table them until the November 16, 2005 meeting.

P. Aslinger presented the PB/ZBA budget request from Teresa Kissell, the form needs to be filled out and returned by Nov. 1st. Ms. Aslinger reported to the Board the wages for the Secretarial Position needed to be increased, she was averaging 30-35 hours per month. She felt the hours she was putting in were a true reflection of the amount of work being generated by the Boards. The Planning Board has added a second meeting per month and she has created a working office in the basement of the Town Hall. She is there a couple to a few times a week letting the Selectmen’s Office know and has discussed offering office hours once per week. Members questioned why the hours have increased so much from what the previous secretary was doing, some felt Judy was able to grow with the job over 16 years and perhaps one of the reasons she resigned was due to the increase in Board activity. P. Aslinger said some of the time is hard to account for, such as phone calls received from various applicants seeking forms or copies or general information. Ch. Vose said each person has a different style of work and that Pam was doing it differently, with the office and availability, updating forms, basically re-defining the job. Ms. Weber agreed saying if the fees need increasing that is a good indication that the work and activity of the two Boards are also increasing. Mr. Webb asked if she thought the hours would slow down, now that the office is set up and she has made initial changes. She answered yes, she would be able to be more specific as the year progresses and settle into a routine.

Members felt they could make a better determination on budget requests if they had the offsetting income side of the budget.

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MOTION: A motion was made and seconded to take up budget review when the income side is provided, and to circulate the information to the members prior to the next meeting. All were in favor.

Ch. Vose asked if all members were able to receive his e-mails, Jan, Larry and Bill need to have mailed copies.

P. Aslinger mentioned the Planning Board would be reviewing the budget at the next work session, next week. The Board will also be reviewing zoning changes, she handed out copies of new amendments from FEMA and OEP that must be adopted and added to the Flood Ordinance in order to continue validity. The members requested a copy each, they will be mailed out . She asked if the ZBA had any suggestions for zoning amendments.

They suggested commercial uses be allowed in the industrial zone, due to the number of variances the Board has had to grant in the past. The industrial zone should allow mixed uses. She will forward the request to the Planning Board.

Lucy Weber asked when the ZBA was supposed to do gravel pit inspections. Ch. Vose thought the best time would be in the spring as opposed to now. The Board agreed to postpone the inspections until the Spring, if it is an option. Ch. Vose will verify.

Meeting adjourned at 9:25pm.

Note: These minutes will be reviewed at the November 16, 2005 meeting.

Cc: All ZBA members, PB members, Selectmen’s Office

Posted: Town Hall, Burdick’s Market, Town of Walpole website, The Walpolean website.