Newton Board of Appeals
P.O. Box 378
Newton, N.H. 03858
MINUTES: Minutes of Tuesday, December 18, 2007
CALL TO ORDER: Meeting called to order at 7:30 PM by Chairman Tom McElroy.
ROLL CALL: Chairman Tom McElroy, vice-Chairman Alan French, Bradley Cardoso, Jack Kozec , Alternates Charles Melvin Sr and Ken Pelletier. Absent: Dana Allison.
Mr Melvin was appointed as a voting member in the absence of Mr Allison.
ACCEPTANCE OF MINUTES: Meetings of November 20 and November 27, 2007. A motion was made by Mr Kozec to accept the minutes as written. Seconded by
Mr Pelletier. Vote: All in favor. Motion carries.
CONTINUATION OF PUBLIC HEARING for:
Ronald J. Pica, Sara Realty LLC, Whispering Pines Campground, 8 Wenmark Road, Newton, N.H. 03858
Map #005-01-005
Application for Variance pursuant to Section XIX (2) such as to allow the expansion of the Whispering Pines Campground for the present 80 campground sites to 118 sites (38 new sites).
Mr Pica was present with Attorney John Ryan.
There were 6 abutters present: Rob Peterson, Robert Johnson, Jim Baker, A. Madeiros, J. Montoni, D. Tremblay.
Chairman McElroy asked Attorney Ryan if he wished to proceed with an explanation for the requested Rehearing, which the Board members had received this evening ( Mrs Clark received Friday, December 14, 2007). Attorney Ryan replied that he thought the primary issue for this evening was the Variance requested.
However, he proceeded with the explanation for a Rehearing. He referred back to the minutes of the November 20, 2007 meeting, where the Board had voted on the 3 Town Criteria for the Expansion of Non-conforming Uses. He referred specifically to #3 “The expansion does not have a substantially different impact on the neighborhood”, where 2 members agreed and 3 members disagreed. The Board discussed the Criteria, but voted that this would have a substantial impact on the neighborhood. All 3 Criteria did not pass, therefore, this was not, in their opinion, a natural expansion.
Another issue was the question of someone going in and out through a fence. Attorney Ryan asked Mr Pica to address that issue, as he feels that there was a misunderstanding here.
Mr Pica presented a couple(2) of computer photos of the fence area in question to some Board members and a copy for the Abutters to view in order for them to be able to understand the discussion (no photos were presented for the file). These, he stated, were taken on the Sunday after the last meeting (November 25, 2007). The ‘walk-through’ gate in question is locked when the campground is closed, he stated, and open when the campground is open. A short discussion followed concerning whether or not there had been any problems with people coming in rather than exiting. Mr Pica replied that there have been no problems. There are three 8’ sections of fence. At the end of that fence, there is a perpendicular section of wire fence that cannot be seen & has been
disconnected. (It is still disconnected and the maintenance man had never noticed it before). There is a lot of growth (brush) in that area, and it is much thicker in the summer months. It is inconceivable that campers are going to disconnect that fence so that they could walk over someone else’s property to get into the campground, when, 24 feet away, there is very easy access, right by the road. It doesn’t make any sense that they would do that. The reason that this is being brought up, is that it was brought up at the last meeting. Mr Pica does not know why the fence is disconnected, but says that his campers would not do that.
The other point Mr Pica wished to clarify, since someone had asked at the last meeting, was the developed part of the land, as far as expansion. He stated that he had those 6 lots that had already been completed before the deal that was made with the Town. He stated that he had not used them. “So part of the expansion are the 6 lots.” He pointed out the expanded area to Board members, and told them that 6 of the additional 38 sites already have utilities and were built prior to the agreement or variance.
Mr Pica had asked the Newton Police Department to put together all the calls they had received for that area from 2001 to 2007. Anything prior to 2001 is not on the computer, but in boxes in storage trailers. (Mr Pica reminded the Board that his first season at the campground was in the year 2000.) There were 2 complaints made. The first was made on June 21, 2006 at 6:30 pm. The complaint was about 3 kids swearing at the beach. The second call was July 8, 2006. This was a noise complaint. When the Police arrived at 9:05, there was no noise. There had been some adults (parents) playing ‘whiffle ball’ with some kids earlier in the play area, but it was before 9 pm. Quiet time at the campground is 10 pm, just like in the Town. These are the only 2
complaints in the 8 seasons that the Pica’s have run the campground. Police drive by, in and out… There have been medical emergencies. Nothing more. Mr Pica restated that they try to make sure that their campers do not disturb anyone. These campers, now, are good family people.
Attorney Ryan reminded the Board that Mr Pica had submitted several reports along with his Application: Stanhope Group, appraisers, reported that there would be no measurable change in neighborhood characteristics (Exhibit 6), Traffic report (Exhibit 8), and a traffic analysis (Exhibit 11).
Attorney Ryan also brought up the fact that in the minutes of the November 20, 2007 meeting, no reasons (facts) had been included concerning the Board’s decision about the ‘substantial impact on the neighborhood’. Because of this, he thought the Board should grant the motion for a rehearing.
Mr French inquired as to whether they wished to proceed with the Hearing for the Variance, or work on the Rehearing of the Natural Expansion. Attorney Ryan said it was up to the preference of the Board, that he was prepared for both.
Mr French told them that “the outcome of the Rehearing may negate the Hearing on the variance. It’s like they may cancel each other out, causing more problems.”
Attorney Ryan thought that it might be better to deal with the motion for a Rehearing first. Grant or deny this motion. If the motion for a Rehearing is denied, then we should go on to the variance request. Mr French pointed out that it would not be correct to go to the Rehearing since it had not been posted as a Rehearing. The Rehearing cannot happen tonight. It has to go through the legal process. It must be posted, and all abutters need to be notified. Attorney Ryan said he understood that, but if the outcome of the Rehearing was in favor of the natural expansion, there would be no need for the variance. The result of the Rehearing will dictate whether we need to go on for the variance.
Mr Peterson, abutter and spokesman for the neighborhood group, asked what a rehearing was. “It appears as though they did not like the results of the Hearing, so they want to try again in a Rehearing.” The Board tried to explain the process, that a rehearing can be requested if there has been an error, an error of judgment or an error in the process.
The Board did a little more research.
Attorney Ryan explained that the motion for a Rehearing was the finding on question #3. There was insufficient documentation in the minutes to justify the vote. He is questioning the reasons, the rationale for the decision of the Board. There seems to be only the one argument, the hole in the fence and the issue of someone urinating on an abutter’s property. No one has ever complained to Mr Pica about this allegation or any other incident. There is nothing in the minutes which suggests that this proposed expansion, which is 500 feet away from the nearest residence, is going to have a substantially different affect on the neighborhood. He pointed out several reports (including exhibits 8 & 11) that had been enclosed with the Application,
proving that there would not be any substantial change in the neighborhood.
Mr Peterson stood up and asked if this was a Rehearing. This was all the same stuff that had been presented at the Hearing. This was not new information.
The Board took time to review the exhibits.
Attorney Ryan pointed out the last sentence of Exhibit #11: “Given the relatively low trips generated, the proposed expansion is not expected to impact the safety or capacity of the surrounding roadway network.” He then pointed out Exhibit #6.
The last sentence there: “My investigation of the proposed additional 38 units identified no measurable change in neighborhood characteristics and as such I find it to be a natural expansion of an existing use that will have no measurable influence on marketability or market prices in the subject neighborhood.”
Review of exhibits, RSAs, and quiet discussions by the Board members. They were having a difficulty understanding exactly what the motion was.
Attorney Ryan repeated that the reason for a Rehearing was that the minutes of the Hearing of the 20th of November contain no reasons why there is going to be a ‘substantial, different impact’ on the neighborhood. There are no reasons given.
Mr Cardoso asks if it’s that there are no facts substantiating that decision or is it the fact that the minutes that do no reflect those facts..
Attorney Ryan says that if this case goes to Superior Court, the Court will use the ‘minutes’ … and before then, he is requesting a Rehearing so that the Board will develop those facts, or non facts, as the case may be, because they are not in the record. He has no idea what the Board members have in their minds, that leads them to the conclusion … The Board voted 3-2, but there are no reasons why they came to that conclusion.
The Board reviewed RSA 677.2…
Mr Pelletier explains how he perceives the reasons for a rehearing. He believes that the Applicant and his attorney are saying that the Board made an‘error in judgment’. By not putting the facts in the minutes, they have a difficult time understanding why the Board made that decision.
Mr McElroy tries to clarify the situation. He thinks that they are not contesting the way the Board voted, as much as the fact that there was no explanation of why the Board voted that way.
Attorney Ryan suggests we have a Rehearing & that we have whatever evidence anyone wants to present. It’s this one particular issue. He is puzzled by their decision on #3. He can’t understand how they came to that conclusion.
Mr Pelletier recalls that when the Board voted is was on ‘substantial’ impact. They new there would be some impact, but was it going to be ‘substantial’. Attorney Ryan would like to see the fully developed conclusion.
Mr Kozec made a motion that we schedule a Rehearing. He agrees that it is very important that the decisions of the Board be documented enough for everyone to go forward.
Mr French asks if the attorney is saying that the documentation on the other 2 findings are acceptable, but the documentation on the last finding is not acceptable.
Attorney Ryan said “that is essentially correct”. He cannot find anything that substantiates the decision on the 3rd point. He is obviously not contesting the decision on the first 2 points, as they are in favor of the Applicant.
Mr Pelletier asks if a Rehearing is granted, “will there only be discussion on that point that evening?” Reply – yes.
No one has yet seconded the motion made by Mr Kozec.
Mr Peterson reminds the Board that he would like to address them also. He inquires about the request. It will only be on #3, as that was the item requested.
Mr Peterson is reminded that anyone has the opportunity to appeal, to request a Rehearing within thirty (30) days of the decision. He replied that he did not think that anyone needed to appeal. Everything had been said. There was a long paper trail of facts and opinions that he had voiced and given to the Board on behalf of the neighbors. There is a lot of evidence in the paperwork he has filed.
Mr French explains that if or when this goes to Court, all that paperwork is extraneous. Attorney Ryan is saying that he has to have legal documentation/ wording to proceed to Court.
Mr Pelletier also tries to explain… that the Attorney needs the rational behind the decision… what we based our decision on…
Mr Peterson argues that the attorney is here trying to confuse everyone. He could have stated the issue of a paper trail at 7:35 pm and saved everyone an hour.
Mr Kozec said that he was the one who asked the attorney for some clarification.
Mr Pelletier explains that there are two reasons to ask for a Rehearing: new evidence or an error in judgment, a back-up of the rationale used in making the decision on #3. Mr Pelletier explains the RSA in question to Mr Peterson. He explains the procedure.
Mr Melvin reminds everyone that there is no evidence from the abutters saying that such expansion would have a different impact on the neighborhood.
Mr Pelletier explains that if there is an addition or correction of the minutes, the only way that can be done is through a Rehearing. You need to challenge something, not only the decision… but the rationale.
Mr Melvin says that a roll call vote is needed, that each member must say how and why he is voting this way, so it will be documented.
Mr Johnson checks to see if he has understood correctly…that the Board needs to justify why they voted that way? Doing this, are you allowing Board members to change their vote?
Mr Pelletier explains that it depends mostly on who is present and voting that evening. They may not all be the members who voted the first time. He explains that he was present, but not voting, at the last meeting. He could become a voting member the next time, and that could change things.
Mr Peterson asks what is required by the Board if the neighbors want to challenge the entire natural expansion case? He states that it is still within the 30 days. What should he prepare to turn in to the Board tomorrow?
Mr French tries to clarify. Should they want to file they must explain why they want to challenge the decisions of #1 and #2… He stressed the fact that in order to do this, they needed ‘new evidence’, not any of the evidence that has already been submitted.
Mr French repeated what Attorney Ryan had said… When this goes to Court, there is no testimony, no one is there to talk except the 2 attorneys and the Judge. Done!
If the Board doesn’t have something concretely written, they win…and if they don’t have something concretely written, we win.
Mr Peterson asks to whom he should turn in his written request for a Rehearing tomorrow. He was advised to bring it to Town Hall, have it stamped with the date, and put it in the Board of Appeals mailbox.
Mr Pelletier questioned the Board on the process. He explained to Mr Peterson that his request would then be discussed at the next meeting, after the Rehearing requested by the Applicant. The second Rehearing would not be at the next meeting, but at a later date, which may or may not be necessary. This would necessitate two separate meetings. Mr French reminded everyone that even after the possible 2 Rehearings, there would still be the variance request to deal with.
Mr Kozec made a motion to rehear the request by Attorney Ryan, on behalf of Sara Realty, next month. Second by Mr Cardoso.
Mr Kozec adds ‘in regards to just item #3” to his motion. Discussion on being more specific… “on the November 20, 2007 hearing” should also be added.
Second of the amended motion by Mr French.
Mr Kozec has made an amended motion to rehear item #3 of the three Town Criteria for Natural Expansion, that was voted on at the November 20, 2007 hearing, as requested by Attorney Ryan, on behalf of Sara Realty. Second by Mr French. Vote: 4 yes, and 1 abstention (Mr Melvin). Motion carries.
Mr French made a motion to continue the Hearing on the Variance Request by Sara Realty until after a series of Rehearings of denials that support the variance application. Second Mr Melvin. All in favor. Motion carries.
PUBLIC HEARING for: Michael Garrepy (for Essex Equity Trust – Scott Bocces, property owner) for property located at Peaslee Crossing Road & Quaker Street, Newton, NH. ( Map #007-06-009-1)
Application for appeal from the Residential Open Space Ordinance – Cluster Development by Conditional Use Permit, Section XXVIII, Paragraph VI, dealing with Lot Size and Frontage.
The Applicant is also requesting a variance from Zoning Ordinance XXXV (Access Management) Paragraph IV A, and VI B.
Mr French made a motion to continue the Public Hearing for Michael Garrepy (for Mr Bocces) due to a death in the family.
Second by Mr Melvin. All favor. Motion carries.
ADJOURNMENT: A motion was made at 8:50 PM by Mr Kozec to adjourn. Second by Mr French. All in favor. Motion carries.
Next meeting to be January 15, 2008, at 7:30 PM.
NEW BUSINESS: None this month…
OLD BUSINESS: None this month…
ADJOURNMENT: A motion was made at 8:50 PM by Mr Kozec to adjourn.
Seconded by Mr French. Motion carries.
Next meeting to be Tuesday, January 15, 2008 at 7:30 PM.
Respectfully submitted,
Jeannette S. Clark, Secretary
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