zbamins081408 1
1 Town of Sunapee
2 Zoning Board of Adjustment Meeting
3 August 14, 2008
4 7:00 PM
5 *****DRAFT***** *****DRAFT*****
6 Present : Peter Urbach, Chairman
7 Alex Kish, Vice-Chairman
8 Robert Henry
9 Harry Gazelle
10 James Lyons
11 Charles Balyeat, Alternate
12 Bennie Cooper, Alternate
13 Ed Frothingham, Alternate
14 Roger Landry, Zoning Administrator
15
16 The meeting was called to order by Chairman Urbach at 7:00 PM.
17
18 ADMINISTRATIVE MATTERS:
19 Rehearing Case - Peter Urbach explained the procedures of a rehearing. The same
20 people who participated on the original case will vote on the rehearing case. Bennie
21 Cooper will vote for James Lyons.
22
23 Planning Board Report – Roger Landry reported that the site plan review for Bushey
24 DBA Double Diamond Café was approved. The Bailey case was continued to the August
25 21, 2008 meeting because the scaled plan was not submitted. The Library case was
26 continued to the September 4, 2008 meeting because the Planning Board did not have a
quorum due to 2 recusals. There may not be a quorum available for the September 4th 27
28 meeting.
29
30 Chairman’s Report - Peter advised that the NH fall Planning & Zoning Conference will
31 take place on October 25, 2008 at Loon Mountain in Lincoln, NH. He also reported that
32 the Management Plan for the Lake Sunapee Watershed has been received. It does not
33 affect what the Zoning Board does, but is available if anyone would like to read it.
34
35 Minutes of the July 10, 2008 Meeting - The minutes were reviewed and the following
36 corrections were noted:
37 1. Line 97 – change if it too loud to if it is too loud.
38 2. Line 100 – change that is would to that it would.
39 3. Line 212 – change Make stated to Mike stated.
40 4. Line 231 – Insert the following sentence after the sentence ending with
41 population. Mike stated that if his request for a variance is granted and the town
42 votes against residential turbines, then he would be grandfathered.
43 5. Line 122 – after two in favor add (Peter Urbach, Ed Frothingham) and after 3
44 opposed add (Robert Henry, Harry Gazelle, Charles Balyeat).
45 6. Line 226 – Change the state says to the town attorney says.
46 7. Line 242 – after four in favor add (Peter Urbach, Ed Frothingham, Robert Henry,
47 Charles Balyeat) and after 1 opposed add (Harry Gazelle)
zbamins081408 2
A motion was made by Harry Gazelle to approve the minutes 48 as corrected. The
49 motion was seconded by Charlie Balyeat and approved unanimously.
50
51 Peter explained the process the Zoning Board of Adjustment follows for the cases
52 and the function of the members.
53
54 7:21PM – Public hearing opened.
55 CASE# 08-14. (Correction from Case #08-07 as listed on notice) MICHAEL &
56 HOLLY DURFOR. MAP #137 LOT #18. 40 HARBOR HILL RD., SUNAPEE, NH.
57 SEEKING A VARIANCE OF ACTICLE IV SECTION 4.20 TO OPERATE A
58 WIND TURBINE GENERATOR FOR RESIDENTIAL USE.
59
60 Roger Landry reported that the state has passed a law that will become effective July 11,
61 2009 saying that towns must accept wind turbines. The town attorney has recommended
62 that the committee be allowed to recommend criteria and put it on the town warrant to put
63 it in the Zoning Ordinance. The criteria cannot be less that the state’s requirements, but it
64 can be more restrictive. The statute should be produced by September 30, 2008. Bob
65 Henry stated that if they allow one applicant to bring forth a request before that, they
66 could have many applicants and thinks it is premature for the Durfor case. Roger advised
67 that when the Legislature wrote the law, they said it would not take effect until July 2009
68 so that the towns can write their ordinances.
69
70 Mr. Durfor asked that Harry Gazelle recuse himself from the Durfor cases as he is an
71 abutter. Mr. Durfor passed out a letter he is submitting to the Zoning Board (see copy
72 attached to minutes). Peter Urbach explained that, as he understands it, the rule on
73 recusal for a board such as this, is that it is solely up to the member who has a potential
74 conflict of interest. Mr. Gazelle chose not to recuse himself. Roger pointed out that if
75 one vote is the deciding vote that leaves the applicant an open door to appeal the case.
76
77 Mike stated that the new state law allows the towns to make more restrictive regulations,
78 but he thinks the statute reads the opposite. He thinks the state has set the most restrictive
79 guidelines that you can adopt, regardless of what the towns adopt. Roger advised towns
80 cannot make their regulations less restrictive. We always have to go more. Mike stated
81 there are two parts to the new state law: it allows towns to make their own regulations
82 and he believes that under the current zoning regulations, without any state regulations,
83 he has sufficient grounds to request a variance and the Board has sufficient authority and
84 latitude to grant what he has requested as a variance. Also, under the new state law, you
85 cannot make a fall zone more than 150% of the height of the windmill, but you can make
86 it less should the individual property require it. It gives the Zoning Board the authority to
87 go ahead without writing new law and to consider things on a case by case basis.
88
89 Mike cited a court case, Becker vs. Hampton Falls, from 1977 (see attachment to
90 minutes) and advised that wind energy systems have been around for a long time. He
91 gave examples of a large windmill at the foot of Burkehaven Hill and another in Sunapee
92 Harbor in the 1890’s. He stated that they have been traditional and fundamental
93 accessory uses under the current regulations. In regard to setting precedent and not
94 having specific guidance in place for Sunapee Zoning Regulations, he quoted Section
95 4.20 of the Zoning Ordinance which reads “Any use not specifically permitted is
zbamins081408 3
prohibited” and the Board cannot be any more restrictive than what goes 96 into effect next
97 July. He stated that any applicant, who can meet the guidelines that are addressed in the
98 state law, should be granted an application now as the Zoning Board cannot be more
99 restrictive. Bob Henry advised that the new law says you cannot prohibit small wind
100 energy systems in all districts within a municipality. He stated that means they can
101 restrict it within some of them.
102
103 Mike stated he thinks the timing now is legitimate for the Board to consider and cited
104 several other cases (see attachment). He stated that the NH Superior Court has ruled it is
105 the constitutional right to protect the use and enjoyment of one’s property and that the
106 rationale is that anything not specifically prohibited is allowed. He believes Section 4.20
107 is unconstitutional as it reads. Bob Henry advised that the Board already has a position
108 from the town attorney and Roger advised the position is that a wind turbine is not an
109 accessory use. Peter advised that the town attorney has taken a position and the Board is
110 abiding by that position. Mike stated that the Zoning Board has the ability to look to the
111 new law for guidance. Peter Urbach advised that he thinks town counsel should review
112 Mr. Durfor’s arguments rather than having the Board review them in the absence of town
113 counsel. Mike stated that he would like to proceed with presenting his arguments and the
114 Board has the right to wait on making a decision to confer with town counsel. Mike
115 continued with the court case examples.
116
117 Mike stated that he believes a mono pole structure is exempt from the requirement for a
118 variance. Roger commented that the attorney’s position if that a mono pole, as a wind
119 generator, has a structure on top of it. Mike requested removal of the current wording of
120 Section 4.20 and a review of that section. Mike stated, regarding hardship, he doesn’t
121 believe a use variance is required. He believes there is no impairment in putting up a
122 wind turbine to the public purpose of the Zoning Regulations. He stated there is no
123 danger, in terms of allowing it to be an accessory use, because historically there has been
124 accessory use with the old windmills that generated power. Bob Henry commented that
125 the case of windmills 100 years ago is really not appropriate today. They do not allow
126 things that happened 100 years ago today and that was prior to Zoning. He stated he
127 cannot fall back on that for justification. He also stated that, with the new law, they know
128 it is going to happen, but they don’t know how it is going to happen. He can’t see
129 moving forward now on a use variance when we don’t have a criteria. Harry advised that
130 Mike needs to give the town a chance to come up with guidelines and wait until March so
131 the towns can give guidelines as to what they want to do. He thinks Mr. Durfor should
132 wait for a decision which is acceptable to the whole town. Mike stated that he does not
133 think the Board needs to wait for the law. He doesn’t think it sets a precedent by using
134 the existing accessory uses. He thinks the Planning Board’s approach was, if it was not
135 specifically permitted, you can at least hear the case. He believes it would be reasonable
136 for the Zoning Board to continue the case so that the town attorney can review some of
the supporting documentation and supposedly, after September 30th137 , the Office of Energy
138 and Planning is going to have some very specific guidelines that the towns can use as a
139 template.
140
141 Harry pointed out that if they grant his request and others now, and in March the town
142 says it does not want wind turbines in residential areas, they would have failed their
zbamins081408 4
duties to the town. Any decisions they make, they always do in the 143 interest of the
144 residents of Sunapee. He was asked to recuse himself because he is an abutter. He is not
145 voting because of what is good for him. He has taken an oath to make sure that anything
146 he does is in the interest of Sunapee and its residents. If we do otherwise, we have failed
147 our commitment to the town. Mike agreed and stated that no one has accused the board
148 of doing anything that was not in interest of the town. Mike has no objection, as long as
149 he does not have to have another hearing, to continuing to allow town counsel to review
150 the submissions. Bob Henry stated he would not vote for a continuance because, since
151 they granted a rehearing, they have had a definitive recommendation from the state which
152 will take effect in a year, which will come through with guidelines that we are going to
153 interpret to our own particular town and put forth to the residents to vote on in March.
154 He stated there is no way he could consider himself in a position to create his own law for
155 an individual prior to that date. He cannot vote for continuing this because it is
156 premature.
157
158 Mike stated he would like town counsel to have the chance to review his submission.
159 Roger stated that a wind generator is not customarily considered an accessory use to the
160 property. The attorney is going to stand by that terminology that it is a use that is not
161 allowed so it is prohibited in the town of Sunapee. Bennie Cooper commented that they
162 don’t have to do anything until town counsel has an opportunity to review this. Peter
163 advised that the ruling from town counsel specifically says it is not an accessory use and
164 Mike has challenged that with a number of cases which town counsel has not had the
165 opportunity to review and Mike has challenged Section 4.20 that prohibits any use not
166 specifically mentioned. He would like to have the benefit of town counsel’s advice
167 regarding the challenge. His inclination would be to submit Mike’s papers to the town
168 counsel and have town counsel give the Board advice and if town counsel stands by it’s
169 decision that this is not an accessory use, and as he thinks 4.20 is constitutional and
170 proper, then the Board would be in a position to rule quickly. His recommendation
171 would be to submit this to town counsel and grant a continuance. Mike agreed to
172 continue to the next regular scheduled meeting in September. Alex Kish stated he
173 disagrees. He thinks the Board should look at Section 4.20 and the language. He thinks
174 they can make a reasonable decision, but doesn’t think they are in a position to do so.
175 The town is in the process of crafting an ordinance to deal with small energy systems and
176 agrees with Bob Henry that it is premature to grant this prior to the adoption of the
177 ordinance. He thinks they can deny it in the interest of the town because the town is in the
178 process of drafting an ordinance. Mike stated he thinks it would be unreasonable if they
179 don’t give town counsel the opportunity to review. Alex stated it fails under substantial
180 justice and the spirit of the ordinance. He stated it is not in the spirit of the ordinance, in
181 his opinion, to give a decision on something we are specifically crafting an amendment to
182 the ordinance for the townspeople to consider. Mike stated what he was trying to get to
183 was that town counsel may want to reverse its position as to whether or not this use is an
184 approved use or not. His application is for an approved use under the existing ordinance
185 and Peter clarified that what he is saying is that in that case it would not require a
186 variance and in which case his criteria is relevant. Mike agreed that is correct.
187
188 A motion was made by Bob Henry to approve Case #08-14 of Michael and Holly
189 Durfor, Map #137, Lot #18, 40 Harbor Hill Rd., Sunapee, NH, seeking a variance of
zbamins081408 5
Article IV, Section 4.20, to operate a wind turbine generator for 190 residential use.
191 Discussion on the motion: Peter clarified that if the Board votes yes, they approve the
192 request. If they vote no, they deny the request and neither of those choices give them the
193 opportunity to continue the case and go to the attorney. Bob Henry stated he agrees with
194 Alex and that this is our decision as a board to make. This is what we are here to do and
195 this is why we have a state giving us direction. This is not to try to find a loop hole in the
196 law that allows something to go through prior to due course and he feels, in this case, he
197 wants to do it the way that we, as a board, do it. He doesn’t need the attorney, for the
198 third time, to tell us if it is an accessory use or not. He can make that decision. If
199 someone wants to take our decision further and address it with all these cases, then so be
200 it. The motion was seconded by Bennie Cooper. The motion was not approved with
201 a vote of 4 against (Harry Gazelle, Bob Henry, Bennie Cooper, Alex Kish) and one
202 abstention (Peter Urbach). The request for a use variance is denied. The reasons for
203 denial are the applicant could not prove substantial justice and the applicant failed
204 to demonstrate that his request is not contrary to the spirit of the ordinance.
205
206 8:17 PM – The public hearing was closed.
207
208 8:17PM – Public hearing opened.
209 CASE# 08-07. MICHAEL & HOLLY DURFOR. MAP #137 LOT #18.
210 40 HARBOR HILL RD., SUNAPEE, NH. A REQUEST FOR AN AREA
211 VARIANCE HEARD AND DENIED ON 6/12/08. HAS BEEN APPROVED FOR A
212 RE-HEARING.
213
214 Mike Durfor stated that the case is being presented as if the state law were in effect. The
215 maximum fall zone would be 150% of the height of the structure and he would have to
216 move it because it was to be placed within 35’ of the lot line. Peter advised that it is not
217 in effect yet. Mike stated that under the current Zoning Regulations, the structure can’t
218 be more than 40’ and he is requesting 45’ and the current regulations have no provision
219 for a side setback fall zone or structures. He cited cell towers and stated the same applies
220 to wind turbines. He advised that the wind turbine cannot work at 40’. He would have to
221 cut more trees. Bob Henry stated that the Board has specific regulations for cells towers.
222 They don’t have them for wind turbines. It is premature. Mike requested that, if in fact,
223 we get to a point where turbines are allowed in the community, that it not be a case where
224 you need more than a building permit. Whatever ordinance is drafted should be
225 sufficiently clear so that the Zoning Administrator can issue a building permit. Peter
226 advised that all of that will be written into the statute. Bob Henry stated that he thinks
227 Mike is saying they need very clear regulations. Roger stated that after the regulations
228 are developed and accepted, there is a good chance he may not have to come back to the
229 Zoning Board. Mike advised that in order to place the turbine where needed, it would be
230 in violation of the 150% state regulation and would probably be in violation with any
231 other regulation you would ask for. He suggests there be sufficient relief in that in terms
232 of a variance which is also in the new state law, such as guide wires on one side of the
233 post so that it cannot possibly fall in the neighbor’s property.
234
235 Alex Kish advised that in terms of the new evidence presented, he is not persuaded to
236 change his previous decision.
237
zbamins081408 6
A motion was made by Bob Henry to approve Case 238 #08-07, Michael and Holly
239 Durfor, Map 137, Lot 18, 40 Harbor Hill Rd., Sunapee, NH, a request for an area
240 variance heard and denied on 6/12/08. The motion was seconded by Bennie Cooper.
241 The motion was not approved with a unanimous vote not in favor (Harry Gazelle,
242 Bob Henry, Bennie Cooper, Alex Kish, Peter Urbach). The request for an area
243 variance was denied. The reason for denial is that the new evidence presented was
244 not compelling.
245
246 8:28 PM – The public hearing was closed.
247
248 8:28 PM – Public hearing opened.
249 CASE# 08-15. MARGARET SULLIVAN. MAP #103 LOT #34. 17 OTTER HILL
250 ROAD. SUNAPEE, NH. SEEKING AN AREA VARIANCE OF ACTICLE III
251 SECTION 3.10 TO REDUCE SIDE SET BACK IN A RESIDENTIAL AREA
252 FROM 15’ TO 9’ FOR CONSTRUCTION OF A NEW GARAGE.
253
254 Roger advised the board that the correct footage for reduction in the set back is from 10’
255 to 5’.
256
257 Frank Wiggins of Frank Wiggins Construction presented the case for the applicant. He
258 stated that this is the only way the garage will fit square without turning the driveway up
259 hill and making an existing water problem worse. He presented a letter from an abutter
260 in favor of the request. Peter read the letter from Amy Bailey (see letter in case file).
261 Joan Butler, an abutter, stated that she has no problem with the request.
262
263 Bob Henry asked if there is any physical reason they can’t put the garage closer to the
264 house. Mrs. Sullivan stated that the PSNH meter and the oil fill pipe are there and Mr.
265 Wiggins stated that if they cover it up they would have to move the meter. Mrs. Sullivan
266 also stated that area is the only way to get around to the front of the house. It is a long
267 narrow lot. Jim Lyons asked why they can’t move the garage closer to the road and Mr.
268 Wiggins advised that the turning radius would be very tight. Charlie Balyeat asked if the
269 abutters don’t object, what is the issue and Jim Lyons stated he thinks the Board is
270 getting requests for some things that should not be a variance. Alex noted that it is a
271 narrow lot, but that the spirit of the ordinance would be upheld if the garage would be
272 made diminutive as well. He stated that the hardship has to be borne out by the property
273 itself. The applicant can accomplish the outcome without requesting a variance by
274 making the garage smaller. Harry Gazelle asked if there is a way to turn the garage so
275 that it would not be encroaching and Mr. Wiggins advised that the more you turn the
276 garage, you make the water problem worse with water running down from Otter Hill Rd.
277 Ed Frothingham asked what would be the big issue of placing the garage 5’ from the
278 house and making the breezeway narrower. Mr. Wiggins stated they would have to turn
279 the garage or they would intrude on the walkway. Roger suggested that they bring the
280 garage forward 3’ and over 3’ and the result would be that the point of the garage would
281 be on the setback. Bob Henry advised that there are other solutions without granting a
282 variance.
283
284 A motion was made by Alex Kish to grant an area variance for Case #08-15,
285 Margaret Sullivan, Map 103, Lot 34, 17 Otter Hill Rd., Sunapee, NH, seeking an
zbamins081408 7
area variance of Article III, Section 3.10, to reduce side set back in 286 a residential area
287 from 10’ to 5’ for construction of a new garage. The motion was seconded by Bob
288 Henry. The motion was not approved with a unanimous vote not in favor (Bob
289 Henry, Alex Kish, Peter Urbach, Jim Lyons, Harry Gazelle). The reason for denial is
290 the applicant could not demonstrate hardship.
291
292 8:48 PM – The public hearing was closed.
293
294 8:48PM – The meeting adjourned.
295
296 Submitted by Joan Bleau, Recording Secretary Date approved
297
298
299
300 Peter Urbach, Chairman Alex Kish, Vice-Chairman
301
302
303
304 Robert Henry Harry Gazelle
305
306
307
308 James Lyons Charles Balyeat, Alternate
309
310
311
312 Ed Frothingham, Alternate
| 
