NEWTON BOARD OF APPEALS
P.O. BOX 378 NEWTON, N.H. 03858
MINUTES: Meeting of Tuesday, February 19, 2008
Page 1 of 9
Call to Order: The meeting was called to order at 7:30 PM by Chairman McElroy.
Roll Call: Chairman Tom McElroy, Vice-Chairman Alan French, Bradley Cardoso, and Jack Kozec.
Recording Minutes: Administrative Assistant Lisa Babcock recorded minutes for BOA secretary Jeannette Clark due to illness.
Acceptance of Minutes: Mr. McElroy moved to make the following amendments to the minutes of January 15, 2008.
Change line 9 on page 10 from “the expansion will have a substantially different impact on the neighborhood” to read, “the expansion will not have a substantially different impact on the neighborhood.”
On line 14, change “He felt that there would be some impact on the neighborhood, but not substantial.” to read, “He felt that there would be some impact on the neighborhood, but not substantially different.”
On line 15, change “He now feels that the expansion will not have a substantial impact on the neighborhood.” to read, “He now feels that the expansion will not have a substantially different impact on the neighborhood.”
Second by Mr. Kozec. Motion carried unanimously.
Mr. Kozec moved to accept the minutes of January 15, 2008 as amended. Second by Mr. French. Motion carried unanimously.
Public ReHearing for Robert Peterson and the Abutters of Whispering Pines Campground on criteria 1 & 2 of the natural expansion.
Guests: Ronald Pica, Brian Cheney, Augustine Medeiros, Rob Peterson, Gino Divecchia, David Tremblay, Jay Montoni, Bob Johnson.
Mr. Peterson addressed the Board with two procedural questions. First, he asked why the Board had voted unanimously to grant a rehearing to Mr. Pica on the grounds that the reason for each member’s vote was not express or committed to the minutes, but voted 3-2 when Mr. Peterson had requested a rehearing on the same grounds.
Mr. French stated that Mr. Pica had requested a rehearing on natural expansion criterion # 3; however Mr. Peterson had requested a rehearing on criteria # 1 & 2. Therefore the vote was different. Mr. Peterson said he felt he had not been extended the same courtesy even though the grounds for rehearing were the same.
Mr. McElroy pointed out that a rehearing had been granted, Mr. Peterson had been granted the same courtesy.
Mr. Peterson presented his second question. He pointed out that Mr. McElroy’s son Matt had been employed by Whispering Pines Campground. He asked if the Board felt that it was proper for Mr. McElroy to participate in the proceedings given the circumstances.
Mr. McElroy stated that he had no relationship with Mr. Pica.
Mr. Pica stated that Matt worked for the campground as a DJ 3 or 4 times per season. He also stated that he has never discussed these proceedings with Matt.
Mr. Kozec stated that he has worked with Mr. McElroy on the Board for many years and he didn’t think that this issue would interfere with Mr. McElroy’s judgment.
Mr. French stated that he too has served on the Board with Mr. McElroy for several years and he had never seen Mr. McElroy make an unfair decision.
Mr. Peterson said he only wanted to pose the question, if no one had a problem with it, neither did he.
Next Mr. Peterson addressed the Board regarding the rehearing on Natural Expansion criteria # 1 – does the expansion change the nature of the use and # 2 – does the expansion make the property proportionally less adequate.
Mr. Peterson addressed criterion # 2 first. He stated that the NH Supreme Court has the opinion that non-conforming uses should be working towards conformity (in the case Residential A) as quickly as possible. He cited the New London Land Use Case as an example of this.
Mr. Peterson stated that this plan of expansion is certainly not working towards conformity. The plan is expanding into land that has never been used for camping before. Mr. Peterson said that Attorney Ryan had confirmed this (that sites had never before existed in the proposed expansion area) in his June 12, 2007 presentation to the Planning Board. He also stated that the Planning Board supported the view that the expansion makes the land proportionally less adequate on a 6-1 vote (June 12, 2007).
Mr. French asked Mr. Pica if he paid taxes on the whole contiguous lot as a campground. Mr. Pica confirmed this and further stated that the area in question has never been used for campsites, but the campers do use the area.
Mr. Peterson stated that once the unused section of land is assigned to the non-conforming use (campsites) it will be less likely to be used for residential development, and therefore less adequate for the use for which it is zoned (Residential A).
Mr. French asked if Mr. Peterson would contest a residential subdivision in the same area. Mr. Peterson said he might contest it, but it would be a conforming use. Mr. French pointed out that homes would be occupied year-round. Mr. Peterson stated that the neighborhood’s current problems occur during the camping season when there is an influx of people into the neighborhood.
Mr. Peterson then addressed criterion # 1 (does the expansion change the nature of the use). He reiterated that the section of the property in question has never been used for camping. He cited an affidavit made by Ms. McLaughlin who was a co-owner from 1968 – 1988 which states that there were 25 campsites when she owned the property. This is confirmed by the latest site plan on file in the Town Hall.
Mr. Peterson said that the nature of the use of this section of the property will certainly be changing because in the past it was not used for campsites and now it will be. He also stated that the Planning Board decided that the expansion would change the nature of the use as a whole as a small campground becomes a large campground. He pointed out that the campground used to be small with sites located away from the view and influence of the neighborhood. There was a lot of vegetation between campsites and the road and homes.
Mr. Peterson said it is becoming a large campground with a parking lot, recreation hall, full-time residence, swimming pool and significant visibility from the homes and road.
Mr. French pointed out that the swimming pool keeps the campers from using the Town Beach. Mr. Peterson said the pool is too small to accommodate 117 campsites.
Mr. French asked if a fence would mitigate the visual impact, with materials to be determined – say a wooden fence that would over time blend naturally into the surroundings. Mr. Peterson said that visual impact is only part of the problem.
Mr. Peterson stated that in his opinion, there is a different nature if it is a small campground that keeps to itself and is out of the way versus a large campground with amenities and lots of people. He said that the Planning Board supported this view according to the minutes of their 6/12/07 meeting.
Mr. Peterson said he brought up the original size of the campground (25 sites) because the NH Supreme Court expressly states consideration for non-conforming use expansion should be compared to the use as it existed at the time the non-conforming use was established. In this case that’s the time the ordinances were enacted in 1973. (New London Land Use case)
Mr. French stated that as of 1973 it has been a campground and the whole area has been taxed as such.
Mr. Peterson stated that in a letter from Attorney Ratigan dated April 2000, if Mr. Pica wanted to expand the number of campsites within the existing area; that would likely qualify as natural expansion, but if he went outside that area he would need a variance.
Mr. Peterson contended that the Board’s view that the impact should be measured from 79 sites to 117 is incorrect. The Board should consider the total impact from the baseline number of 25 sites. He said that even if the Board considered the impact from the time that the ordinance was last amended (March 2000) that would still only be 38 sites which is confirmed by site plans on file, Attorney Ratigan’s 4/00 letter, and the Settlement Agreement between Sara Realty and the Town of Newton. He said that the baseline number is important because the Planning Board had identified and supported that magnitude is an important characteristic of nature.
Mr. Peterson then cited the Hampton v Brust case in which the court allowed expansion of a non-conforming use (an arcade) from one section of a building into another section that had been previously used for amusements but not video games. However, the court denied expansion into a 3rd section of the building that had previously been used as a gift shop ruling that the use was too different.
Mr. Peterson contended that expansion into the unused area of the campground should not be allowed because it is a different use from what currently exists. He pointed out that this view was supported by the Lecture Law Series. The courts have never allowed expansion of a non-conforming use beyond the plot lines of an existing building. He argued that the building was analogous to the area currently used for campsites.
Mr. Peterson requested that these points, the use of a baseline count for determining impact and the application of Hampton v Brust, be presented to Town counsel for a legal opinion before the Board renders a decision.
He also asked the Board to deny the expansion stating that if Mr. Pica then brings the case up for a variance, the Board would have an opportunity to review it in a standard, more familiar format.
Mr. French then asked for clarification regarding Mr. Peterson’s points on criterion # 2 (less adequate). Mr. Peterson cited the New London case which says that non-conforming uses should work towards conformity. Mr. French stated that the only way to make the lot conforming is to do away with the campground. The campground itself will never be more conforming. Mr. Peterson said that by allowing expansion, the campground becomes less conforming.
Mr. McElroy stated that Town counsel will not render an opinion on this case due to current litigation. He said the Board sought legal advice from two other sources, Attorney LaPointe out of Epping and the NH Municipal Association. He said that neither one had provided a clear definition of how to address the natural expansion issue.
Mr. Peterson argued that he had presented two specific questions that the Board could get answers to. Mr. French reiterated that Town counsel would not comment on the case.
Mr. French cited a case in which the owners of a horse farm wanted to add another stable in a residential zone. The neighbors were against it. The Supreme Court ruled that adding more horses to a horse farm was a natural expansion. But they would not have been able to add pigs or other animals.
Mr. Cardoso pointed out that each court case is based on the merits of the particular case. The Board did not have all of the details of those cases and should not try to make any case fit to this situation. He said that this is not a court room, the Board’s job is to interpret the Zoning Ordinances not make legal judgments. Those cases reflect the opinions of one lawyer and each lawyer has a different opinion.
Mr. Cardoso also stated that the project before the Board starts with 79 sites and the Board must base its decisions what currently exists and the project as it is currently being presented.
Mr. French stated that the difference in the impact has to be based on what’s there now. It can’t be based on what was there in the past. Mr. Peterson disagreed, stating that the legal interpretation is that the full impact should be measured from the baseline of 25 sites.
Mr. McElroy read from a letter from an attorney recommended to him by Atty. Ratigan.
“Paragraph 5 of that ordinance [Town of Newton Zoning Ordinance] requires that anyone seeking expansion of a pre-existing non-conforming use must first make application to the Town of Newton Code Enforcement Officer for an administrative decision. I assume this portion of the ordinance has been satisfied by the application to and decision of the Planning Board.”
Mr. McElroy said the code enforcement officer, Bob Donovan, Sr., has never been brought into the case. He said it was the only area that had not really been explored.
Mr. French stated that he did not want the abutters to think he took the situation lightly because the campground is “not in his backyard”. He stated that he lives near the dump and has to live with the smell and ashes when they burn, noise from the dumpsters and traffic. Mr. Cardoso added that he deals with runoff from the Town Hall parking lot in his yard.
Mr. McElroy offered Mr. Pica an opportunity to speak. Mr. Pica referenced a letter from his attorney. He said the expansion does not make the property less adequate because the new sites are located within the 27 acres of the original campground; all sites are fitted with water, sewer and utilities. These facilities are adequate to support the use.
He said the sites will be used in exactly the same manner as the existing sites – for seasonal campers. The nature and use of the campground will remain the same.
He also stated that the abutters think the campground has already expanded but this is not true, citing the Settlement Agreement that was made with the Town. He had originally made an application because he was required by DES to supply all sites with utilities. He further stated that at the time of Atty. Ratigan’s April 2000 letter, there was nothing in the zoning ordinances about natural expansion.
Mr. Peterson said the ordinance was amended in March and the letter was written in April. Mr. Cardoso said that the letter was written based on litigation that occurred before the ordinance was changed. The old ordinance had allowed one time expansion of 625 square feet. The ordinance was flawed because it was based on the expansion of a building.
Mr. McElroy asked for additional abutter comments.
Abutter Gino DiVecchia said that it has been brought up that taxes are paid on the campground as a whole, but that might not be true. Mr. Cardoso said that the Board must take people on their word. The Board is not in a position to research every statement.
Mr. Peterson said the Municipal Law Series gave an example of grand-fathering saying a use cannot be changed or substantially expanded without being brought into compliance.
Mr. Cardoso said no court is going to force Mr. Pica to change the use of the existing campground. Property owners have full rights over their property.
Mr. McElroy asked if any other abutters wished to comment. Bob Johnson addressed the board. He said that he agreed with Mr. Peterson’s presentation. He asked the board members if, given the chance, they would prevent the problems they faced regarding their own property (such as living near the dump and run off). Mr. Cardoso said the runoff has to go somewhere; it would just go into someone else’s yard.
Mr. Johnson also stated that he and his neighbors have watched the campground grow from 25 sites to 38 to 79. He said that they are just trying to maintain and protect their neighborhood and that he was frustrated that a commercial business was allowed to grow within a Residential A zone. To him it does not seem like natural expansion.
The other abutters declined to comment.
Mr. French stated that the purpose of the vote was to get the Board’s documented opinion. Mr. McElroy polled the Board on expansion criterion # 1 as brought up by Mr. Peterson for this rehearing: does the expansion change the nature of the use.
Mr. Kozec said no, he does not believe the expansion changes the nature of the use. Thirty eight sites does not change the nature.
Mr. Cardoso said no, the expansion does not change the nature of the use. There are 79 existing sites; it’s his belief that the additional 38 sites do not change the nature of the use as the planned campsites are similar or larger than the existing sites. The nature of the use of the new sites will be identical to the existing sites.
Mr. French said no, he does not see any change in the nature of the use with the additional sites. It’s still a campground, a campground is a campground.
Mr. McElroy said no, the expansion does not change the nature of the use. It’s still a contiguous piece of land that’s one parcel of land and it’s just an expansion of the existing use as is.
Mr. McElroy polled the Board on expansion criterion # 2 as brought up by Mr. Peterson for this rehearing: does the expansion make the property proportionally less adequate.
Mr. Kozec said no, the expansion does not make the property proportionally less adequate. Going back to the number of campsites and their location does not make the property less adequate.
Mr. Cardoso said, no the expansion does not make the property proportionally less adequate since the new campsites have acquired the same amenities of the existing sites.
Mr. French said his opinion was “exactly the same” referring to Mr. Cardoso’s statement.
Mr. McElroy said his opinion was also the same, referring to Mr. Cardoso’s statement.
Mr. French said on the issues of criteria 1 and 2 on the expansion the Board does not see any difference in the nature of the use or that the property is proportionally less adequate.
Mr. French also stated that the abutters should note that in the event there is some project presented in the future, the Board can ask for concessions such as a fence.
Mr. Kozec moved to close the re-hearing for Mr. Peterson on expansion criterion # 1 and 2. Second by Mr. French. Motion carried unanimously. Mr. McElroy declared the hearing closed.
Public ReHearing for Robert Peterson and the Abutters of Whispering Pines Campground on criterion 3 of the natural expansion.
There was some confusion concerning this hearing. Since the regular secretary was ill, the Board believed that she had not been able to process this hearing and Mr. Pica and the abutters left.
When the Board discovered that the paperwork was in place, Mr. French went out to the parking lot to retrieve the abutters and inform them of the error.
The Board offered to proceed with the hearing, but Mr. Peterson noted that Mr. Pica had already left so it was decided to delay the vote to rehear.
Mr. French moved to delay the motion for rehearing for Mr. Peterson on criterion # 3 of natural expansion as presented under the new business section of the agenda to the next meeting, March 18, 2008. Second by Mr. Kozec. Motion carried unanimously.
Other Board Business
The Board reviewed the following correspondence:
Flyer for the 15th Annual Spring Planning & Zoning Conference
Legislative Bulletins from the NH Municipal Association
Planning Board Minutes
Updated Personnel Policy
Adjourn
Mr. Kozec moved to adjourn at 9:10 PM. Second by Mr. French. Motion carried unanimously.
Respectfully Submitted,
Lisa Babcock
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