Newton Board of Appeals
P.O. Box 378
Newton, N.H. 03858
MINUTES: Meeting of Tuesday, August 18, 2009
CALL TO ORDER at 7:30 PM by Chairman Tom McElroy
ROLL CALL: Chairman Tom McElroy,
Dana Allison, Bradley Cardoso, Jack Kozec, Alternates: Charles Melvin, Sr. & Ken Pelletier.
Absent: Vice-Chairman Alan French
In the absence of Vice-Chairman Alan French, Mr. Melvin was made a voting member. All in favor.
Guests: Ann Miles, Chair of the Planning Board, Trisha McCarthy, Selectwoman
Ronald Pica, Applicant, Attorney John Ryan, Robert Peterson, Robert Johnson, Gene Tolman, Jean Cheney, Marie Tolman, David Tremblay, Augustine Medeiros, residents of Wenmark Road… Cynthia & Ralph Wilson, James Baker, Anne Collyer, Tully Zipkin, Sonia DerManuelian, Brian Philpott, Ellen Money, and Sandra Mader, Taxpayers on Country Pond.
Coleman McDonough, Applicant, Jameson Fitzpatrick, Craig Jackson, Nicole Jackson, residents of Walnut Farm Road.
ACCEPTANCE OF MINUTES: Meeting of July 21, 2009. A motion was made by Mr. Allison to accept the minutes as written. Second by Mr. Kozec. All in favor. Motion carries.
PUBLIC HEARINGS:
A. ReHearing for: 125 Development NH Corp.
Coleman McDonough, President
P.O. Box 532
Plaistow, NH 03865
For property: Map #014-01-027-4
Newton, NH 03858
The Applicant is requesting a variance from Newton Zoning Ordinance, Section XIII, Paragraph 1: Location on Lot. The request is to reduce the dimensional requirement of the 200’ setback to 90’ in the area which abuts the residential lots of the Walnut Farm subdivision.
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Mr. McDonough stated that the majority of the Board members were present for the site-walk and that at that time all questions were answered and that he had clearly explained that this was the better location, as it acted as a buffer as well.
James Fitzpatrick agrees that the back of the building should be facing the abutters’ land, that the proposed natural buffers would be adequate, and that the placement of the building would be fine as long as the back (working end) of the building was to the back of the homes. He is concerned about the size of the building, the noise level, and the hours of operation. Mr. Allison informed him that many of these concerns were out of the jurisdiction of the Board of Appeals. Restrictions on noise and hours of operation would be under the jurisdiction of the Planning Board.
Nicole Jackson also voiced her concerns on these same issues.
Mr. Pelletier explained the limitations of the Board of Appeals, and how the Planning Board takes on these issues.
Craig Jackson, also voicing some concerns, asked why the burden was placed on the residents? Again, it was explained that from this meeting Mr. McDonough necessarily goes to the Planning Board with more stringent plans and other details.
Also, they explained to him that from here there would be requirements from the Town Building Inspector, the Fire Marshall, the Planning Board, etc.
Review of the Variance Standards (Criteria):
- Since the Applicant was seeking an Area Variance, he needed to show ‘special conditions’ existed, and that benefit could not be achieved any other way.
Vote: 4 Yes (Melvin, Kozec, Allison, McElroy) and 1 No (Cardoso).
Mr. Cardoso felt that there was need of more restrictions.
- Violation of ordinance’s basic objectives:
Vote: 4 Yes (Melvin, Kozec, Allison, McElroy) and 1 No (Cardoso).
Mr. Cardoso felt that the closer the building was to the Abutters, the more detrimental.
- Contrary to Public interest:
Vote: 4 Yes (Melvin, Kozec, Allison, McElroy) and 1 No (Cardoso).
Mr. Cardoso felt that since this property was surrounded by a residential area, Boards should be more restrictive.
- Surrounding property values would not be diminished:
Vote: 4 Yes (Melvin, Kozec, Allison, McElroy) and 1 No (Cardoso).
Mr. Cardoso felt that there was not sufficient proof.
Vote: 4 Yes (Melvin, Kozec, Allison, McElroy) and 1 No (Cardoso).
Mr. Cardoso felt that there was not sufficient proof that there would be a loss from the reduction of the size of the building.
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Mr. Allison made a motion to grant the requested variance reducing the dimensional requirement of the setback from 200’ to 90’ on the area which abuts the residential lots of the Walnut Farm subdivision, with the following restrictions:
- No garage doors on the back of the building,
- A berm is to be built on the back, facing the Walnut Farm subdivision,
- A 20’ fire lane is to be located at the back of the building.
Second by Mr. Kozec. Discussion. Vote: 4 in favor, 1 Opposed. Motion carries.
At 8:05 PM, Mr. Kozec made a motion to close the Hearing. Second by Mr. Melvin. All in favor. Motion carries.
- ReHearing for Ronald Pica, Sara Realty LLC, Whispering Pines Campground, 8 Wenmark Road, Newton, NH 03858 (Map #05-001-05) seeking a variance in order to create additional sites to the campground.
Attorney Ryan reminds everyone of the procedure that was agreed to at the last meeting, each side would get 5 minutes to present their case. They would also have 5 minutes to rebut the Criteria, so that each one would have equal time.
He reminded everyone that it was the August 26, 2008 decision of the Court that remanded the Applicant’s request to the Newton Zoning Board of Appeals.
Attorney Ryan then asks Mr. Pica to explain his newest document. Mr. Pica passed it out to all members of the Board, but none for the records. He reminded everyone that all activity would still be some 750’ from the lake.
Since it had been suggested that Mr. Peterson be allowed to make his presentation at this time, so that the Board would not have to start the process over again, he took to the podium, giving a written copy of his remarks for the records.
The review of the Variance Standards (Criteria) followed immediately after Mr. Peterson’s presentation.
Review of the Variance Standards:
- Seeking a ‘use’ variance, the Applicant needed to prove unnecessary hardship, that more campsites was the only reasonable use.
Mr. Peterson argued that this was not the only reasonable use, this area could be used for residential lot(s). It would be legal, viable, bring in taxes to the Town, and reduce the liability to the Town.
Vote: 3 Yes (Kozec, Allison, McElroy) and 2 No (Melvin, Cardoso, who agreed that this was not the only possible use of the land.).
- Violation of ordinances’s basic objectives:
Mr. Peterson stated that this was ‘new use’, not merely expansion. The campground has already doubled in size, and this falls outside the rules of expansion.
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Vote: 3 No (Melvin, Kozec, Cardoso, who felt that this wa not natural expansion, would have a negative impact on the neighborhood, and that this Board was here to protect both the Abutters and the Applicant).
2 Yes (Allison, McElroy)
Mr. Cardoso added that the Applicant hasn’t sufficiently proven that this expansion will be consistent.
- Contrary to Public interest:
Attorney Ryan stated that the Abutters have only come up with ‘speculation’, no studies or proof that this would alter the character of the neighborhood. It would not change anything.
Mr. Peterson stated that this is no longer an inconspicuous campground in a Residential area, but had become a few residences in a campground area. This was not in the Public interest.
Vote: 3 Yes (Kozec, Allison, McElroy) 2 No (Melvin, who felt that not all avenues had been exhausted, and Cardoso, who felt that there had been significant impact already. The aerial photos had shown this consistently).
- Surrounding property values would not be diminished:
Attorney reminded everyone of the Stanhope study, and that this ‘expansion’
Would be located at least 500’ from the nearest residence.
Mr. Peterson stated that the Applicant fails to recognize values and relationships to Country Pond itself. The Pond and watershed have already been greatly impacted. That there is legal backing to all his statements, and the Planning Board recognizes negative impacts on the Pond, swamp and wathershed.
Vote: 3 Yes (Kozec, Allison, McElroy, claiming that there has been only one study developed, and none was presented by the Abutters to refute.)
2 No (Melvin, Cardoso claimed that the essential character would be changed.)
Attorney Ryan stated that the Public had no interest…they had no reason to deny, as they would have no gain, interest, or used of this area.
Mr. Peterson argued that residences should be built in that area, as they would have more benefit to the Town. The campground has already had substantial growth. He also stated that the rare Atlantic White Cedar swamp could also be affected.
Vote: 3 No (Melvin & Kozec, who felt that the Applicant knew what he was buying from the beginning, and Cardoso, who stated that the Applicant was not proving a loss, but a good viable business.) and 2 Yes (Allison and McElroy, who stated that there would be negligible impact and that there would be no gain to the general Public).
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Mr. Pelletier explained that, though he was not voting on the issue, through his experiences, open space is always beneficial to Towns and the general Public,
Mr. Kozec made a motion that the Board deny the variance as the Criteria (Variance Standards) had not been met. Second by Mr. Melvin. Three(3) in favor of denying (Melvin, Kozec, Cardoso). Motion carries.
Mr. Allison made a motion to close this hearing at 8:50 PM. Second by Mr. Melvin. All in favor. Motion carries.
NEW BUSINESS:
Mr. Kozec encouraged Board members to attend as the Boy Scouts were planning a cook-out…
Ann Miles, chairperson of this endeavor, requested that Board make every effort to come to the Friday session, as their input would be extremely helpful in planning Newton of the future. The Board needed their thoughts on Zoning, and Zoning changes and additions, as now the Town had only “spot zoning”.
She also explained that this was an honor for the Town to be chosen for this grant, as it was valued at $45.000 to $85,000.
- Discussion of the notice from the NH Office of Energy & Planning
regarding the Annual Fall Planning & Zoning Conference, Saturday, October 17, 2009, at the Mountain Club on Loon, Lincoln, NH.
OLD BUSINESS: All Board members, except Mr. Melvin, had received a copy of the Town’s New Safety & Loss Prevention Policy. Mr. Melvin requested that he be allowed to take the ZBA copy to read. He would return it at the next meeting.
ADJOURNMENT: A motion was made at 9 PM by Mr. Kozec to adjourn. Seconded by Mr. Cardoso. All in favor! Motion carries.
Next meeting to be Tuesday, September 15, 2009 at 7:30 PM.
Respectfully submitted,
Jeannette Clark, Secretary
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