NEWTON BOARD OF APPEALS
P.O. BOX 378
NEWTON, N.H. 03858
MINUTES: Meeting of Tuesday, September 18, 2007
CALL TO ORDER: Meeting called to order at 7:30 PM by Chairman McElroy
ROLL CALL: Chairman Tom McElroy, Vice-chairman Alan French, Dana Allison, : Bradley Cardoso, Jack Kozec, and Alternate Charles Melvin, Sr.
Absent: Alternate Kenneth Pelletier
CONTINUATION OF PUBLIC HEARING FOR:
Ronald J. Pica, Sara Realty LLC, Whispering Pines Campground
8 Wenmarks Road
Newton, N.H. 03858
Map # 005-01-005
Present: Ronald J. Pica, Attorney John Ryan, and Abutters:
Lois DeYoung (Country Pond Fish & Game), Eugene Tolman, A. Medeiros, Rob Peterson, Brian Cheney, David & Judith McLaughlin, Gino & Barbara Divecchia, Mark Healy, Jennifer Blake, Deb Richard, Bob Johnson, Susan Zipkin.
Attorney John Ryan, representing Mr Pica and Whispering Pines, introduced himself and gave a little background of the campground’s request for an increase in campsites from 79 to 117 (an increase of 38 sites). He explained that they were appealing the June 12 (2007) decision of the Planning Board (Section XIX), denying the Applicant’s proposed request for expansion, as it “did not meet the criteria for natural expansion”. Attorney Ryan then explained that the second part of the appeal, was a request for variance from the Expansion of Non-Conforming Uses (Zoning Ordinance Residential A, Section XIX, Paragraph 2), and that since the evidence and arguments were the same for both, he would like to give only one presentation. The Board approved.
Ronald Pica, of Sara Realty LLC, and owner of Whispering Pines Campground, began his presentation… He presented numerous facts, such as the proximity of the closest resident (500 feet), distance from the shoreline (560 feet), and the percentages of usage of the campsites at various times.
He addressed a few of the concerns of the Abutters:
Newly proposed leeching field is 900’ away from the lake
Boaters: received instruction, DES manual on boating, licenses required
Only 8 boat slips allowed… mostly not used…
He also stated that he was willing to take on ‘limitations’, that the approval could be contingent on: 1) limiting gas-engine motorboats to 25 hp… and only 12 boats (rather than his limit of 25)…
At his point, he produced a plan from the Registry of Deeds.
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2) the horseshoe courts, which residents of Wenmarks Road thought were too close, would be moved… and replaced with a bocce court or shuffleboard…
(Note: all 80 sites have on-site sewerage (70 full season, 10 transient) which is not necessary, but has been piped there….)
3) Sites #43 and 52 would be eliminated, as these are the closest to the residents and the road… These would become ‘sitting areas’.
(Note: Construction trailer, which was allowed by the Planning Board, is now gone.)
4) The road is owned by the campground. The entrance is gated and not used by campers… 2 residents have keys)…Mr Pica is willing to give this road to the Town, but keep “User Rights”…
5) There is a triangular section of land, which was owned by the Spaldings and mentioned in the Agreement of Sale, but excluded from the deed, which Mr Pica is giving to the Abutter…
6) This same Abutter wants a part of the road for his above-ground leeching field… but Mr Pica said that this area is needed as an emergency turn-around and for snow storage. It is also too close to seasonal high-water…
7) He will put no fences along the campground’s property line…
He repeated the fact that he is willing to give the road to the Town as long as he maintains his rights.
Attorney Ryan reviewed the evidence of the Planning Board decision:
1999: Mr Pica purchased from Spaldings…
Came to an agreement with the Planning Board that there
were pre-existing campsites… He was allowed 80 sites…and was not to request any other changes till 2005.
2005: New plans (exhibit 1) were approved by the Planning Board.
December 2005: Mr Pica amended the Application and Plan to add new sites (Exhibit 2)…
June 2006: needed a variance… Several other Exhibits dealing with ‘property expansion’…
The Planning Board voted that the requested 38 new sites were not “Natural expansion”… though Mr Pica reminds them that this use will not change the sewerage issue.. He has a 27 acre contiguous parcel, which is adequate for new sites, land, water, utilities, etc. All will fit. “ NH law allows an increase in density as long as there is no impact on surrounding properties.”
The second part of the case is the need for a variance, if the Planning Board decision is upheld.
Attorney Ryan reviewed the 5 Criteria necessary. He claimed that since there was no threat to the health, safety, and welfare of anyone, this was reasonable use of the owner’s
property.
Questions:
Mr Allison inquired about the RSA 676.5… A question of interpretation?
Attorney Ryan said they had no choice but to come to the ZBA, before going to Superior Court.Mr Cardoso requested a little background..
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Area was developed in the early ‘60s as a campground… In the late 90s, the owners decided to sell… not all 80 sites had all utilities… there are still 4 families still there from when Mr Pica purchased, but many others were asked to leave after the purchase…
Mr Pica was asked to provide sewerage to all sites…roads are still the same, nothing much has changed in the 27 acres.
Abutter properties were established in the ‘50s… each Abutter has an easement to use the beach.
Mr French inquired as to the time line for development… “Spring”. He then suggested that a continuance may be beneficial for all… a continuance to the November meeting.
Mr Allison see the two things as split up: 1. natural expansion, and 2 variance…
Discussion of the Hampton Beach penny arcade case…
Rob Peterson (Abutter), 21 Wenmarks Road, had a few concerns. He addressed the presence of Abutters, all were here, so there was no reason for a Continuance for that reason.
Mr French reminded everyone that a decision may not be reached tonight.
Mr Peterson continued with his concerns:
1. The ice pond (aerial photo) connect to Country Pond
2. limiting number of boats – good (but new)
3. horseshoe pits were put there by Mr Pica…
4. June 12 decision of the Planning Board was a painstaking decision…not taken lightly…
5. hardship? None shown…
Mr Peterson then reviewed the 5 Criteria, with a different perspective.
1. Value of property: proximity to Country Pond (a plus), owning ¼ acre (useless), Zoning: Residential A with a Commercial campground next door, reduces the value again…
2. Benefit to owners and new campers, no one else…
3. Hardship – hardly…
4. Substantial justice: injustice to Abutters
5. Residential A should be maintained…
There are letters on several other issues… “ENOUGH IS ENOUGH”! Significant expansion has already occurred (38 sites to 80). That’s a 180% expansion. The Zoning Ordinance should protect the Townspeople…
Traffic study was inadequate and the Abutters know that it’s also inaccurate…
The beaches are a liability to the Town.
Changes incur changes in drainage and run-off…
Non-essential development of property near beaches should be limited.
At this time, there is potential for 324 people and pets in the campground. With expansion, that potential is over 900.
Gino Divecchia, 27 Wenmarks Road:
“ Why is there need for expansion, if he can’t fill the campground now?”
Reply: “Sites are rented, but not all occupied at all times.”
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Attorney Ryan: Exhibit #1…It has been determined and recognized that the campground has 80 pre-existing sites…The Town actually required utilities be put on each site. Anything more than that number would be considered expansion. Talk to Attorney Ratigan.
All we hear are concerns about drainage and impacts… but there is no proof…no one has come to us and told us that this was impacting the lake. This is all pure speculation. There is no scientific evidence that any of these allegations are true.
Jennifer Blake, 26 Wilders Grove Road. She is a scientist, a marine biologist and lives on the lake. She has been doing some analysis and testing of Country Pond, and has come to see that Country Pond is in an extremely fragile state. The phosphates are a particular problem. There is already a great human impact on this lake – it’s dying. We are losing a valuable resource in Country Pond. She works with DES & data can be found there.
Mr Pica says that at a Conference of the DES in Sandown, he was told that 30% of the problem in the lake is the seeping of septic systems… There are also too many high-powered engines allowed the the lake, stirring up bacteria… There are no contaminants draining into the water from the campground. All is contained.
J. Blake: Boats are not the exactly the problem. What we found is that the boats actually help to put back the oxygen into the water… Volume of the lake is what’s important…and it’s the run-off of the phosphates running into the water… If you increase the density of the area, the population mass increases, and the run-off of phosphates increases…
Eugene Tolman, former Planning Board member (in time of Mr Pica’s 1999 case)… There is no doubt that Mr Pica, in 1999, was interested in expansion. It’s all documented in the files. Of the 3 major septic systems, we personally cut that back to 2…hoping at the time that that would limit the number of sites. You clearly should try to understand, and take a look into previous documents. Also, look into any documentation on the former campground owner.
Mr Pica stated that he actually has 4 septic designs approved for the site, for 140 sites.
When it was cut back to 80 site, there was no need for 4 septic designs, so we took them off the plan. They (approvals) only last 4 years anyway. They didn’t cut us back, we just didn’t need them. All septic work was brought up to speed by the year 2000.
Bob Johnson, 19 Wenmarks Road… When Mona Spalding owned the campground, there were only 40 sites, not 80. When she was selling, I asked her personally how many sites she had… and she said 40… You can understand all the concerns we have as neighbors.
He recalls sliding down the hill with his children during the winter months. There were not 80 sites there then. Attorney Ryan said that this expansion would not impact the neighborhood. It already has impacted the neighborhood.
Mr McElroy reminded Mr Johnson that all comments should be directed to the Board.
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Mr Johnson explained that Mr Pica has done a good job with the campground. He has cleaned it up. There’s not much riff-raff like there was before. However, he is expanding outside the area, into this supposed unused acreage. Six of those acres are wetlands. We’re not changing the nature of the business. When do you stop! It’s a question of density. There are 13 houses up there, and we see a ‘tide of people’. It’s impacting residents now. When is it enough?
Mr French reminded them that it was not a question of changing use.
Mr Allison reminds everyone that in order for it to be a ‘natural expansion’, you must satisfy 3 things: 1) it does not change the nature of use, 2) does not make the property proportionately less adequate, and 3)
Mr Johnson also tells them about the safety of the neighbors walking down the road. It is not safe any more. That’s an impact on the neighborhood.
Mr Pica said that Mona Spalding personally marked out the sites (40 sites) and the utilities. Those that had permanent utilities, etc. Others didn’t have all the utilities. We would have to bring in utilities. That’s the same plan she used.
This is it, we will not come back for more expansion.
Mr French reminded him that that does not mean anything. A change of ownership would nullify that.
Mr Allison wants to know if crowding in more sites will make the campground proportionately less adequate?
Mr Melvin inquires as to whether or not the land will be ‘clear cut’? as it appears on the plan?
Mr Pica replies that his intention that campers have ‘breathing area’ between the sites. We are going to try not to cut everything.
Mr Melvin inquires as to how this will impact his relationship with the Fish and Game Club…
Mr Pica replies that the Fish and Game had a contract with the Planning Board. They have not fulfilled that. We have a meeting with the Planning Board next week. Unfortunately, it appears that they will not oblige him to fulfill the obligation. As far as the neighbors, from site 16 on, it has not been cleared, and the sound comes across. This expansion will not impact the Fish and Game or the neighbors.
Attorney Ryan reminds everyone of the lawsuit against the Fish and Game Club concerning the noise… and secondly, that the Planning Board issued them an approval for the removal of gravel, and there were conditions imposed by the Planning Board concerning the sound… and they have not been met…
Mr Pica recalls that when they came before the Board of Appeals, the question of mitigating the sound was in their application. This Board granted them approval because they were going to mitigate the sound. They just haven’t done it.
Eugene Tolman reminds them that the train tracks will reflect the noise if the trees are cut down. He asks the Board to look at all the details, ‘to do diligence on each issue’.
Mr Melvin inquires as to the possibility of having a ‘tree plan’. Could that be a reasonable stipulation, if requested by the ZBA?
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Mr Pica said that was difficult, but “I will do the very best I can.” I want to keep all as natural as possible.
Mr Peterson requests that the Board check out the discussions of the Planning Board on these issues.
Are there any percentages on granting variances on expansions? Not more than 800% or 2%? Or something like that?
Mr Allison replied that the ordinance was changed a few years ago.
Mr Melvin adds that it used to be a “1 time expansion” for non-conforming use. And it was only 25%. I can’t find that rule right now. It just says no expansion in the Aquifer Protection area.
Mr French adds that everyone has to understand that the reason for a variance is that someone needs to do something that may be gray. We make the decision and give you 30 days to appeal. We’re not God. We make mistakes like everyone else. Some people like our decision, others don’t.
Mr Peterson tells the Board of a conversation that he had with Victor Silva, who had requested a variance to enlarge his building. He was denied because it was too much expansion.
Mr French explained that there are different guidelines in Zoning. That must have been under the old ordinance. There is no stipulation on size now.
Mr McElroy add that he was on the Board at that time, and the ordinance has changed since then. He also explained that he had a problem with ordinances in this Town. People vote them in only because it says ‘approved by the Planning Board’. They don’t even look into the matter. Up until 2 months ago, we didn’t even have any Zone Enforcement Officer. Why keep adding more laws to the books, when we can’t even enforce the existing laws. This has been going on for years. There are some that I feel should never have been approved.
Mr Allison has a question. If the Board of Adjustment says that this is a natural expansion, do you then go back to the Planning Board?
Attorney Ryan said yes!
Mr Allison makes a motion to continue this Hearing to the November meeting, giving everyone time to do some research and some thinking on the issue. Mr French seconded.
Vote: unanimous. Motion carries.
PUBLIC HEARING FOR:
Cynthia Wilson
42 Wilders Grove Road
Newton, NH 03858
Map # 002-03-024
Abutters: Michael J Maher and Kimberly Cooper
Mrs Wilson explained her request and reviewed the Plot Plan with the Board. She was seeking to tear down her garage, and replace it with a new (& smaller) one, with storage space above for summer furniture.
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Criteria was reviewed. All items were Satisfied.
Mr Allison made a motion to grant 3 variances:
First, that the building be no nearer than 36’8” from the center line of the road…
Second, that the structure be no nearer than 4’4” from the left side lot line…
Third, that the structure be no nearer than 17’4” from the right side lot line…
And that there be no living space above the garage.
Plot Plan as drawn for Cynthia M. Wilson, by Paul F. Nichols, PE, LLS, of Kingston, NH, and dated August 13, 2007. (Job No. 425B-07)
Seconded by Mr Kozec. Vote: unanimous. Motion carries.
Thirty day waiting period explained.
PUBLIC HEARING FOR:
Michael J. Maher
46 Wilders Grove Road
Newton, NH 03858
Map # 002-04-018
Abutters: Cynthia and Ralph Wilson
Mr Maher explains his request to tear down and replace his dwelling (55’x25’) with a new home (45’x21’) due to the roots of a tree making the house unsafe. It might be a modular home or stick-built, but will be 27 feet high. He will also be replacing the septic system.
Review of plans. This is a non-conforming lot.
Review of the 5 Criteria. All items were Satisfied.
Mr Allison makes a motion to grant 3 variances:
First, that the building be no nearer than 2.4 feet from the left side lot line…
Second, that the structure be no nearer than .1 foot from the right side lot line…
Third, that no part of the structure be nearer than 34 feet from the center line of the road
Plot Plan as drawn for Michael Maher, by Paul F. Nichols, PE, LLS, of Kingston, NH, and dated January 25, 2007. (Job No. 425A-07)
Seconded by Mr Kozec. Vote: unanimous. Motion carries.
Thirty day waiting period explained.
ACCEPTANCE OF MINUTES: Meeting of August 21, 2007. A motion was made by Mr. Allison to accept the minutes as written. Seconded by Mr. Kozec. Motion carries.
NEW BUSINESS: Preliminary Budget for 2008:
A motion was made by Mr French to stay with the same figures for the budget as in 2007, except for the 2.5% cost of living increase under Salary. Seconded by Mr Allison. Vote: unanimous.
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ADJOURNMENT: A motion was made at 10:30 PM by Mr. Allison to adjourn. Seconded by Mr. French. Motion carries. Next meeting to be October 16, 2007 at 7:30 PM.
Respectfully submitted,
Jeannette S. Clark, Secretary
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