Newton Board of Appeals
P.O. Box 378
Newton, N.H. 03858
MINUTES: Meeting of Tuesday, March 17, 2009
CALL TO ORDER at 7:30 PM by Chairman Tom McElroy
ROLL CALL: Chairman Tom McElroy, Vice-Chairman Alan French,
Bradley Cardoso, Jack Kozec
Absent: Dana Allison and Alternates: Charles Melvin, Sr., Ken Pelletier.
ACCEPTANCE OF MINUTES: Meeting of February 17, 2008. A motion was made by Mr. French to accept the minutes as written. Seconded by Mr. Cardoso.
Motion carries.
ABUTTERS PRESENT: Robert Bartlett, Nancy Slombo (Rec & Conservation), Rob Peterson, Bob Johnson, Brian Cheney, Augustine Medeiros, Jay Montoni, David Tremblay, Sandra Maher.
Chairman McElroy set up some ground rules. He requested that all speakers direct their information to the Board members, with a time limit of 30 minutes for each side.
CONTINUATION OF PUBLIC HEARING:
Ronald J. Pica, Sara Realty LLC
Whispering Pines Campground
8 Wenmark Road
Newton, N.H. 03858
(map #05-001-05)
Appeal from Town of Newton Residential Zoning Ordinance for Expansion of Non-Conforming Uses, Section XIX, Paragraph 2: The Applicant is requesting a variance in order to add 18(15) additional sites to the Whispering Pines Campground.
The floor was then given to the Abutters.
Mr Peterson, representing the Abutters, began his presentation with a discussion of the letter received by Town Boards from Attorney John Ratigan. In his letter, Attorney Ratigan states that a substantial expansion has already occurred at the campground, and that the Board should consider this, as well as the Superior Court Decision that was made by Judge Smukler.
He then expressed the concerns of the residents about the campground. He presented several potential scenarios which could occur, if the expansion were permitted. He also expressed concern of what could happen should there be new owners in the future.
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Mr Peterson again referred to the Superior Court decision, where the Judge made a point concerning the DOCTRINE OF NONCONFORMING USES. He states than any expansion is in direct opposition to this doctrine. Expansion is not working to bring this property into compliance with the ordinance.
He mentioned several other issues: population, watershed, the poor condition of Country Pond, traffic, noise, etc.
Mr. Peterson proceeded then to reviewing the Criteria necessary for a variance, as presented to the Board by Sara Realty.
In this review, he explained how the residents of Wenmark Road saw the Criteria, the answers of Sara Realty, and how the residents did not support any of the replies.
In fact, Mr. Peterson worked to show the Board how the replies were misleading the Board, and how more sites would only negatively impact the neighbors and the public. There would be no benefit to the neighborhood, nor to the Town. There would, on the other hand, be much more liability to the Town, as increasing population would increase the use of the beach area & the pond, in general. The residents are in total disagreement with the view that this expansion would have no impact on Country Pond.
Mr. Peterson again quoted Judge Smuker “…the expansion of that portion of the property would be new and impermissible.” “The expansion into the undeveloped portion represents a use not closely related to the manner in which that part of the property was used at the time the zoning ordinance was created because it was undeveloped at the time the zoning ordinance was created.”
“…the enlargement would render that part of the property, if not the surrounding areas as well, proportionately less adequate.”
Unnecessary hardship? “The owner is operating a viable business that has already substantially increased in size. There cannot be any further obligation of the Town to allow continued expansion under the auspices of the landowner’s rights.”
“At the time Sara Realty, LLC acquired the property, they knew (or should have known) the campground is a nonconforming use, and expansion of a nonconforming use is not permitted.”
There is no ‘substantial justice’, but injustice to abutters. It would be an injustice to the people of Newton “who look to the ordinances to protect their neighborhoods and ecosystems.”
Spirit & Intent: The Town’s ordinances “tolerate the nonconforming use while protecting the abutting ‘conforming uses’ and encouraging conformity as quickly as possible.”
Mr. Peterson concluded his presentation on how Sara Realty, LLC failed to properly support any of the elements of the 5 Criteria needed for a variance. He again stated that Judge Smukler made it clear that expansion into the undeveloped area of the property constitutes a new use, which is impermissible.
The written text of his presentation was given to the secretary to be put in file.
Sandra Mader, resident of Newton & resident on Country Pond read and submitted a letter to the Board. There were 10 statements and 3 questions presented for the
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Board’s consideration before “making any and all further decisions regarding additional expansion of the above referenced Camp Ground.” It was signed the “Taxpayers and Residents” of Newton.
Abutter Bob Johnson read a letter from James Baker and Anne Collyer, residents of Newton living on Country Pond, who were unable to attend this Hearing. They are located just across a small cove from them and also wanted to voice their concerns and opposition to the expansion requests. They believe that the Town Boards should continue to help preserve this valuable asset (Country Pond). The campground should be allowed “to operate within the zones they knew to exist when they purchased the property as the Ordinances allow.”
Attorney John Ryan (Attorney for Sara Realty, LLC) began by stating that Sara Realty, LLC had reduced the size of the project to 15 new sites – understanding that the Court has allowed 3 additional sites.
Attorney Ryan presented the Board with a new Traffic Analysis and trip generating estimate for the campground with 79 sites and also with the 18 additional sites (provided by Laurie M. Rausseo, P.E.,PTOE) and dated March 13, 2009.
Attorney Ryan then addressed the Criteria. He clarified some numbers. He stated that this new request, and also the Court order, begins with 79 sites (agreed upon with the Town in 2000) and not from the beginning in 1968.
As he had already reviewed the Criteria at a previous hearing, he was very brief. He reminded the Board of the report provided by the Stanhope Group showing that
there was not nor would be any diminution of property values. There would be no impact on surrounding property values.
Unnecessary hardship? The Board should allow the campground use, which is consistent with the use of the property. It was a reasonable use, and would have no adverse effect. It would be maintaining the original character of what is already there.
He clearly stated that there were no plans for a subdivision in that area.
Mr. Peterson said a few words to clear up Attorney Ryan’s statements. In conclusion, he stated that this would not be a benefit to the Town. There should be residences located there, not a campground.
The Board reviewed the Criteria:
- would not diminish surrounding property values: all agree
- would be of benefit to the public interest: 2 No (Kozec: “I don’t see it to be of public interest. It hasn’t been proven to me.”
French: “I’ll go along with that!”)
2 Yes (Cardoso: “I disagree!”
McElroy: “I agree! So it’s a tie vote!”)
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3. denial/ unnecessary hardship to owner: 3 Yes(French: “I definitely agree! They’ve already allowed them to put in the whole watershed suppression system & everything…in the beginning, before we even started any of this… I can’t see that being negative!”
Kozec: “I agree with Alan!”
McElroy: “I agree with that! So it’s 3-1.”
1 No (Cardoso: “I disagree with this, it’s an existing use…my observation is that it’s an improvement…)
4. granting/ substantial justice: 3 Yes (French: “I agree with that, A campground is a campground.. It will always be a campground!”
Kozec: “Yes, I agree with Alan again. I think, again, it’s a campground…as long as it remains a campground.”
McElroy: “I agree! So it’s 3-1 on thatCriteria!”
1 No (Cardoso: “I disagree! Again, the fact that the State has stated that the use of that non-developed land is not a natural expansion of the campsites, I have to disagree with that!
- use not contrary to spirit and intent of ordinance:
2 Yes (French: “We’re not dealing with 39 sites though…15 actually… Yes, I don’t see that as being detrimental. Now you’re talking 15 from 39… it’s less than half right there!…)
2 No ( Kozec: “I disagree! I think it will have a substial impact!”
Cardoso:”I disagree because the zone requirements for non-conforming use also protect the surrounding abutters, who are then protecting the non-conforming use itself…and I think we’ve had enough evidence at these hearings that it will be a negative impact!”
McElroy: “ I agree with #5. It’s a tie on #5 also. Therefore we need a motion from the floor.
There were 3 Affirmative votes, and 2 ties.
Mr. French explains that there is no one to break the deadlocks.
Mr. Peterson requests clarification on #2.
It was explained that there was no one to break the ties.
Mr. French suggests continuing to next month, to again review the Criteria when there would be another member(s) present. Due to the fact that it’s a tie vote, if the decision was to be made now, they would vote to deny.
Mr. French: “You’d have to go back to the Planning Board, then come back to us again. That letter from Attorney Ratigan also states not to use that 39 sites as a baseline.
A motion was made by Mr. Cardoso to deny the variance based on the fact that the Board has not approved all the Criteria. Second by Mr. Kozec. Vote: 3 – 1 No (McElroy). Motion carries.
Mr. French inquires as to whether Attorney Ryan and his client will go to the Planning Board and come back with an amended expansion plan?
Attorney Ryan: “Well, we have the opportunity to file a motion for a ReHearing.”
It was stated that they would review the matter and consider the options.
A motion to close this Hearing was made by Mr. Cardoso, at 8:20 pm.
Second by Mr. French. Motion carries.
PUBLIC HEARING for: Timothy Hajjar
T & M Property Management
17 North Main Street
Newton, NH 03858
(Map # 001-07-031)
The Applicant seeks relief from conditions #1 and 2 of the Planning Board’s Decision of August 26, 2008 (Zoning Ordinance, Section III, Home Occupations and Home-based Businesses) in order to park 3 Commercial Vehicles on his lot.
Mr. Hajjar explained his situation the Board. He had a total of 3 vehicles. Two (2) of these vehicles were in excess of 2,000 pounds.
Mr. French was not satisfied with the Plans presented (1986). These plans were used when the land was subdivided, and he was not the owner listed. Mr. French explained that the plan must also be to proper scale (1”= 20’), and include the position of the well and the septic system (exact measurements), the place where the vehicles will be parked (groundwater contamination), fuel used in vehicles, the hours of operation of these vehicles. Without these, and exact dimensions of everything, the Board is not able to make a decision. The Board also recommended that the Criteria be reworked.
At 8:30 pm, Mr. Cardoso made a motion to continue this Hearing (possibly to April 21). Second by Mr. French. Motion carries.
Not knowing if he would be present at a later date, Mr. Robert Bartlett, Mr. Hajjar’s closest abutter and the person who subdivided his land, spoke in favor of the arrangement. He stated that Mr. Hajjar is very considerate, and that he is in full support of his efforts.
- NEW BUSINESS: The flyer for the 16th Annual Planning and Zoning Conference, May 2, 2009, at the Radisson Hotel in Manchester.
- OLD BUSINESS: 1. Planning Board minutes
2. Legislative Bulletins
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ADJOURNMENT: A motion was made at 8:38 PM by Mr. Kozec to adjourn. Seconded by Mr. French. All in favor! Motion carries.
Next meeting will be Tuesday, April 21, 2009 at 7:30 PM.
Respectfully submitted,
Jeannette Clark, Secretary
Copies: Selectmen, Planning Board, Building Inspector, Fire Chief, Police Chief, Road Agent, Health Officer, Board Members
Posted: Newton Town Hall, Newton Post Office, Newton Junction Post Office
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