The minutes of September 10, 2003 were reviewed with the following additions/corrections made;

Page 5, after "Mr. Polito thinks this is a high intensity use of the property", add "and".

Mr. Friel made a motion to accept the minutes as amended. Mr. Carter seconded and the minutes were approved. Mrs. McGrath abstained.

Mr. Polito announced that the scheduled hearing of Fire Inspector Charles Earley request for Appeal from An Administrative Decision relating to the interpretation and enforcement of a Zoning Ordinance provision had been withdrawn.

Daniel & Margaret Osborn (Attorneys Beaumont & Campbell) request for a Variance from Article V, Section 530 and Article IV, Section 410:8 of the Zoning Ordinance to permit construction of a residential dwelling 31’ from Wetland (69’ variance) w/septic system 75’ from Wetlands (25’ variance) as opposed to the required 100’ setback on property (11,200 sq. ft.) located at Hemlock Shore Drive, Map 22, Lot 57, RR3 Zone.

Abutters list was read with the following present:

Hemlock Heights Improvement Association; Mr. And Mrs. Osborn; Big Island Pond Association, Mr. Holligan

Attorney Campbell stated that Board should have received revised septic plans based on the request from the Board at the last hearing. They have located the abutting well radii, relocated the well an additional one-foot away from the water, obtained verification that the septic system cannot be turned and received indication from Mr. Chamberlain that the septic system is in the best location and will meet state requirements. The Board also asked about the Shoreline Protection Act. Attorney Campbell stated that the Shoreline Protection Act does not apply to this site because it is an undeveloped existing site, which is subject to the exception, but for informational purposes, 483b(9), states that 75’ is the required setback and that they meet this.

The second part of the last hearing had to do with the size of the house. Mrs. Osborn has spent considerable time with assessment records and will make a presentation relating to that later.

Kurt Meisner, Septic Designer, stated that there are a lot of constraints with turning the septic system. The state requires a 3 to 1 grade of the slope coming down to the property line. If the septic system were turned they would encroach over the property line with the grading. If they slide it back upslope it would come up over the street. Mr. Meisner stated that Town would have to grant approval for an easement over a road and it could only be done through Town Meeting. Mr. Meisner said that in order to get the letter from Mr. Chamberlain they had to present all the alternatives and he agreed that this was the best location. Mr. Polito asked how much smaller a one bedroom septic design would be. Mr. Meisner said that the state minimum is a two-bedroom design. Mr. Polito asked what other types of septic systems would be available if this were a seasonal home and not year round. Mr. Meisner explained that the State would only approve a holding tank as a last ditch resort and would normally only be allowed for an existing structure. Mr. Carter agreed that a septic system could be monitored for possible failures where a holding tank is regulated by an alarm. The risk is much greater in a holding tank.

Mr. Polito opened the public input for septic issues only. An abutter wanted to know how many bedrooms and square footage the house would be and was concerned that the septic would be overused by a larger structure. Attorney Campbell stated it is a two-bedroom home. Mrs. Osborn stated that the home would be 1900 to 2400 square feet. Mr. Polito stated that that was really large to have only two bedrooms. If you went around town and divided bedrooms by square footage, there would be a much different number than what this suggests. The amount of square footage can impact the utilization of the property in terms of guests, etc. Mr. Carter stated that at this time there is no house plan, but when the applicant presents the actual plan, what they might think is two bedrooms, the Board may not agree with it. Attorney Campbell said he believed that it would be incumbent upon whether the plan was an open concept with cathedral ceilings and large rooms, etc. Ms. Rotnick stated she owns one of the homes that were actually constructed as year-round. Her house is a two-bedroom 1700 square foot structure on .4 acres.

Attorney Campbell asked Mrs. Osborn to make her presentation. Mrs. Osborn presented color-coded maps depicting all the surrounding waterfront properties. There were 11 seasonal properties and 39 year-round properties. Eight out of the 39 year-round properties had over 2000 square feet of living space. Her lot was larger than all of others. Mr. Polito stated that her lot was the most unique and challenging in terms of topography. The houses depicted in blue were year-round with garages. Mrs. Osborn presented pictures of surrounding homes that were quite large, and believed the lots were even more challenging than her lot, yet they were able to put large homes on them. Mr. Polito asked if she knew the history of the lots, such as whether they predated zoning, were granted variances, etc. Mrs. Osborn did not know. Mrs. Osborn showed a picture of Lot 72, which according to the assessor’s map, states the lot is 7,950 square feet and is extremely large. There are many homes over 2000 square feet that are represented as two or three bedroom homes.

Attorney Campbell said this was to address the Board’s concerns with the size of the home. Mrs. Osborn said she was working with an architect to come up with a house plan to fit into the area without crowding them. Attorney Campbell said the Board had discussed bifurcating the application and dividing it into two parts. One dealing with septic only and if that is approved, coming back before the Board for the house.

Mrs. McGrath asked if the footprint shown on the plan was a viable location for the house. Attorney Campbell stated that it was. Mrs. Osborn stated that her architect put the footprint there based on some of the house plans they had been discussing and that they were certain the house would be located in the footprint as shown.

Mr. Polito wanted the minutes to be clear that the applicant did a good job researching houses but there still is not a good metric of house size to lot size and house size to topography. There is no history of the other houses. If this were before the Board as a seasonal conversion, it would have to meet WS300 and 400. When these lots were subdivided they were intended to be seasonal. Mr. Polito believes the Board would like to work with the applicant to put something on this lot, but believed what they are trying to put on this lot vastly overuses the lot in terms of size and topography. A 2000 square foot home is a moderate home in Atkinson and requires 2 acre zoning today. Mr. Lewis does not have a problem with this size house, but does have a problem with the septic system. He believes the applicant should research a high tech septic system.

Attorney Campbell stated that if the Board has a concern with the two-bedroom design then it would be incumbent upon the applicant to present plans that would make the Board feel comfortable. Mr. Polito stated that the Board had some real concerns with a 2000 square foot two-bedroom house. The Board agreed this would be a very intensive use. Mrs. McGrath stated she would have to see final plans, but right now it seemed quite large to her as well.

The Board agreed to bifurcate the application and deal with the septic system only, but wanted to make it clear to the applicant that they may have a difficult time approving a 2000 square foot home.

Not only did the Board have concerns with the size of the house, but Mr. Polito also stated that before this is decided the issue of parking for the island would have to be dealt with. Mr. Carter’s concern was that if the island was sold and the new owners parked on this lot it would add to the intensity of use. The Board agreed this issue would have to be addressed.

Mr. Polito opened the public hearing with regard to the septic only. Big Island Pond Association questioned how the two issues could be separated. Mr. Friel stated that the Board was not approving the design of the septic, but only the location. The association asked that even though Mrs. Osborn showed there are similar size structures on other lots, the past is the past and does the Board wanted to set a precedent by allowing this size structure on this lot. Mr. Polito wanted the record to be clear that there has been considerable discussion regarding this issue and he does not know the history of the other lots. He does not know if they predated zoning or required variances. The only issue being dealt with at this point is the septic system. Hemlock Heights Association asked where the septic system was and was shown on the plan. Hemlock Heights Association believed the 100’ setback should be adhered to.

Mr. Polito read a letter from the Conservation Commission, which did not recommend this proposal.

The Board reviewed the criterion:

Based on the previous discussion and the presentation by the applicant the Board agreed this criterion was met.

Based on the previous discussion and the presentation by the applicant the Board agreed this criterion was met.

a). Based on the previous discussion and the presentation by the applicant the Board agreed this criterion was met

b.) Based on the previous discussion and the presentation by the applicant the Board agreed this criterion was met

c.) Based on the previous discussion and the presentation by the applicant the Board agreed this criterion was met

Based on the previous discussion and the presentation by the applicant the Board agreed this criterion was met

Based on the previous discussion and the presentation by the applicant the Board agreed this criterion was met

Mr. Carter made a motion to grant the variance request of 24’ from the required 100’ setback for a two bedroom septic system based on the above criterion being met and with the condition that the applicant has one year to complete the application with a State approved Septic System. Mrs. McGrath seconded the motion and it was unanimously approved.

Mr. Polito gave the applicant guidance relating the future application for the structure as to the intensity of the use, the size of the structure, and access to the island. Relative to other plans, there are issues not dealt with on the current plan such as run off, construction sequences, location of driveway to wetlands, etc.

Abutters list was read with the following present:

Randal Bing; Hemlock Heights Improvement Association

Mr. Lewis recused himself

Mr. Bing explained that he wanted to put a foundation under the current structure, but not add to the existing footprint. He is putting in a new septic system and well. He presented a plan to the Board, with pictures. The lot will be graded up. The basement will be a walkout. There is only a crawlspace at the present time. This will remain a two-bedroom home and there is a State approved septic system. The well has been drilled and in operation for about one month.

The Board reviewed the criterion.

The Septic Plan is in place and approved by the State

The report on the well indicates the compliance with WS 300 & 400

Mr. Carter made a motion that based on the presentation the applicant has met a, b and c of 700:2. Mrs. McGrath seconded the motion and it was unanimously approved, based on the condition that the applicant has one year to act upon.

Abutters list was read with the following present:

Tracy Morgan-Arnfield; Diane Poth

Ms. Arnfield explained that her mother owns the home and she is living in the basement apartment

Ms. Arnfield stated she had hired a local contractor, Rodney Mills, to convert the basement into a small living space. The contractor was supposed to obtain the necessary permits. She presented the Board with the contract showing she had paid for this. She asked the contractor on several occasions if he had the permit and he repeatedly lied about them. When she realized there were no permits she called the building inspector. Construction is not completely done. The plumbing and electrical inspector has been there to inspect the premises. The applicant presented a drawing to the Board

The Board reviewed the criteria of 460:1A

This condition is met

This condition is met

This condition is met

Her mother owns the home. This condition is met

This is a single family detached home. The Condition is met.

There were no additional doors added to the outside of the house. There are no outward changes to the house. This condition is met

The cellar stairs go directly to the upstairs and there is no door. This condition is met

The applicant stated there is approximately 570 square feet. The Board told the applicant they have no discretion on this issue. The living space cannot be more than 500 square feet. They asked how she came up with the measurements. She was not sure exactly what was included in the measurements. Mr. Lewis stated that the washer and dryer space should not be included because they were already there. There are no dimensions on the plan. Mr. Polito informed here that in order for the Board to approve this, there must be a plan before them depicting the rooms with square footage. This condition has not been met.

This condition is met.

Mr. Polito stated that the applicant needs to come back before the Board with a plan that shows what was added up and it must be no greater than 500 square feet. Mr. Carter agreed and stated that things that were in the house originally and that are shared space would not be included. Mrs. McGrath said if it were over 500 square feet the applicant might have to make a wall adjustment or figure out some other way to get to 500’.

Map 13, Lot 80, TC Zone.

Abutters list was read with the following present:

Peter and Karen Ashworth

The Ashworths presented pictures to the Board depicting the cube van. The Board agreed with Mr. Kirsch that this is a commercial truck and needs to be screened in the residential area. Mr. Ashworth stated that he has been parking this truck in his driveway since 1998 and that this is his livelihood. Mr. Polito sympathized but stated the Board did not have discretion and fencing or trees must screen this. Mr. Carter asked if the truck could be parked behind the garage. There is a leach field on one side of the property and the other side abuts a neighbor’s property. Mr. Ashworth said they would have to travel over the neighbor’s property and the neighbor would not allow it. There is no other way to screen the property because of the layout of the lot. Mrs. McGrath asked why there was no definition of a commercial vehicle. Mr. Polito stated that he believed the ruling the code enforcement officer made was reasonable. Mr. Polito explained that the ordinance was written to keep the residential character of the neighborhood.

Mr. Polito told Mr. Ashworth he would have to work out any issues with the Code Enforcement Officer and the Selectmen.

Mr. Carter recused himself from the Board

Abutters list was read with the following present:

Omnipoint Holdings, Inc.; Signal Tower by their Attorneys, Duval & Associates; Brian & Karen Donnelly; Feuer Realty Trust; Mr. Cogswell; Sandy Carter

Attorney Kelley Winer(?) asked that they be allowed to file an Administrative Appeal. It involves all of the same discussions that they will be having this evening and similar reasoning for the Special Exception. Mr. Polito asked would it have changed legal notice and would it affect any abutters from being prepared for this. The building permit request was for the installation by T-Mobile for a telecommunications facility. The Board determined this was materially different and without the Building Inspector present, they could not entertain this request tonight.

The representative from T-Mobile explained that Omnipoint Holdings is a wholly owned subsidiary of T-Mobile. Omnipoint Holdings is the FCC licensed carrier. They fall under the Telecommunications Act. They are proposing to co-locate on the existing tower, which now has the address of 10A High Hill Road, the addition of three T-Mobile Antennas 145’ up the tower that would be flush mounted to the pole. They would build a concrete pad and put the equipment on the pad. There is a trailer on the lot, which would be removed and the concrete 8’ x 6’ pad would be located in this location. There are three pieces of equipment on the pad, which are connected to the antennas by a coaxial cable. She presented a structural report, which indicated the structure is sound and would support the antennas. They would have to add an additional utility pole and would also use existing utility poles along the right of way to prevent any cutting of trees. They may have to add an additional one because of the distance. This is a basic outline of the proposal.

Mr. Polito asked if the Special Exception was for the expansion of the use, the expansion being T-Mobile adding the facilities to the site? Attorney Winer asked if he were speaking specifically to the non-conforming use? Mr. Polito stated that the issue is if you come in under the non-conforming use, there has to be legal standing. The Board has before it a Stipulation and he would like for it to be tied into the non-conforming use.

Attorney Winer stated she would like to establish that this is a legal non-conforming use before getting to the Stipulation. The existing use of the site as a communications facility is the same use that has been since 1958. First, the piece of property was purchased by Taylor’s Express Company from Lillian Brock in 1958, specifically for a communications facility. They operated a trucking company and needed to keep in contact with the truckers. There is a lot of information anecdotal and otherwise that the site was being prepared for a communications facility even before it was purchased. There was some type of relationship between Lillian Brock and Raymond Blevin, who was the point person for Taylor’s Express at the time. They have spoken with Mr. Earl Benner, currently of Hudson, NH, whom installed the very first tower on the site in 1958. Attorney Winer stated that Mr. and Mrs. Feuer, long time residents of Atkinson and abutters corroborated this information and recalled that Mr. Brock actually hired the Road Agent for the Town of Atkinson to clear the site in preparation for the first tower.

Attorney Winer believed that the 1958-year was very important because the first zoning district was established in October of 1959. Prior to that point in time, any zoning regulations were the ones that were first promulgated in 1940 and meant to address summer camps on Island Pond in relation to chimneys, fires, etc. From 1940 to 1959 there was not much enforcement of any buildings permits, etc.,. There was nothing in place that would have required Taylor’s Express or Mrs. Brock to obtain any kind of permit.

Attorney Winer also spoke with a Mr. Maurice Collins and he was a member of the first Planning Board. He recalled the tower being there in 1958 and said it was a grand fathered use. Attorney Winer believes they are establishing that this is an existing non-conforming use and has been used continuously for the purposes of a communication facility.

Mr. Polito asked if that was the presentation of establishing non-conforming use. Attorney Winer stated that it was and that she could go into more detail in any aspect. Mr. Polito asked if as an Attorney she realized that the Board was not required to accept offers of proof and what she just recited, anecdotal at best, which might be true, but the Board has not accepted this as Offers of Proof. This Board would routinely require written documentation, and might consider signed affidavits. Certainly there is not enough information for him to conclude that this has standing as a non-conforming use and putting the Stipulation aside. Attorney Winer also presented a deed from Lillian Brock to Taylor’s Express, which is dated June 24, 1958. She also presented a map from 1960, which shows the site and the record owner.

Mr. Polito asked if she had FCC License records that would demonstrate usage. Mr. Polito stated she would need to show the use predated zoning that they predated and also show substantial use. There could be pictures or business records, etc. Mrs. McGrath suggested that the Board could take the testimony of the Feuers, who are present tonight. Attorney Winer said they could attest to the fact that there was a tower on the site in 1958. Mr. Polito stated that there is a difference between a tower, which could have been used for a ham radio and establishing that there was a commercial operation. There would still need to be a connection of dots in relation to zoning and the establishment that this has been in continuous operation. Mr. Polito did not believe the testimony would give the complete picture. Mr. Polito asked the Board if they had heard enough information to establish that this was a non-conforming use. Mr. Lewis stated that he knew the Tower was there in 1958, that Taylor’s Express used it and that Lewis Builders had a radio there. Mr. Polito asked if he knew the exact dates and if he knew the current zoning. Mr. Lewis stated he did not and further that the trucking business must have had some sort of license. Attorney Winer said the Trucking business went out of business two years after it opened and that it is very difficult to find these records. Mr. Polito said that giving this property standing as a non-conforming use, independent of the Stipulation, has serious ramifications for the land use rights of the property and the affect on the abutters. He has not seen enough material to take that leap. Attorney Duval asked for guidance as to what specifically the Board would be looking for to establish this use. Mr. Polito suggested reading the RSA’s regarding non-conforming use; find the threshold in zoning where this property would not have fallen under the restrictions of zoning today. It must be established with proof that there was a commercial use and that it has been continuous. FCC Licenses, detailed plans on the towers, business records, etc. could support commercial use. It must be shown that what is there today is legal and has all the necessary permits.

Mr. Polito wanted a consensus vote from the Board that independent of the Stipulation and based on the presentation that enough evidence has been presented tonight that would convince the Board that this is a non-conforming use with those rights conferred to it. Mrs. McGrath asked why the Board could not go forward from the Stipulation? Mr. Polito stated that the applicant asked to put the Stipulation aside and made a presentation to establish this as a non-conforming use. Attorney Duval stated that it was taken out of context, because before they get to the Stipulation he believed it was very important to address from 1958 forward. Attorney’s comments were based on setting the Stipulation aside for the moment so they could go back to 1958 and then go forward.

Mr. Polito wanted the record to be clear that the Board did not confer upon the applicant that they were accepted as a non-conforming use upon the presentation. Mr. Polito asked the Board for a vote. Mr. Friel seconded and Mr. Ashford agreed. Mr. Lewis stated again that he knew the tower was there but did not have actual knowledge about its broadcast operations. Mrs. McGrath asked Mr. Lewis if there was any doubt that the tower was used commercially. Mr. Lewis replied he had no doubt that the tower was there since the 1950’s, but he could not give an exact date. He also said that he could not attest to the tower’s operation, broadcast or use. Mrs. McGrath believed that the applicant is attempting to provide evidence to establish a legal non-conforming use; there is a deed to Taylor’s Express and a Board member has actual knowledge of some of the historical facts. Mrs. McGrath asked Mr. Lewis how soon after Taylor’s Express bought the property, did the tower go up. Mr. Lewis stated if it were not simultaneously, then the tower was erected before the transfer. Attorney Winer stated that her presentation corroborated this.

Attorney Duval wanted to state for the record that the vote Mr. Polito asked for by the Board was premature in that they were not complete with the presentation and he tried to make this point before the vote. Mr. Polito replied that he believed a presentation was made on why they believe, without the Stipulation; they have standing as a non-conforming use. Mr. Polito wants the record to be clear that he is not indicating it could not be proven. The applicant did not come prepared tonight with enough evidence to support standing as a non-conforming use. It has not been demonstrated that there was a commercial radio operation, only that a tower was erected. Some indications of commercial use may include tower specifications, antennas, the existence of licenses, information on the frequency and power or any of the ancillary facilities. If that were established the applicant would get a lot of rights and the Board would be able to review the historical usage record to build upon for the natural or requested expansion of use.

Mr. Polito stated there was a motion on the floor. He asked the members if they believed the applicant has presented sufficient information to establish status as a non-conforming use. Four members voted no and one abstained. Mr. Polito stated that according to the Board, without consideration of the Stipulation, the applicant has not submitted sufficient information to establish standing as a non-conforming use

Mr. Polito asked if the applicant wanted to proceed to the Stipulation. The Stipulation appears to give the applicant some rights. Attorney Duval argued that the rights given under the Stipulation would have allowed the building permit that was filed to be approved. The Building Inspector denied it based on non-conforming use. Mr. Polito stated that if this Stipulation gave the right to expand, the applicant would have to be in compliance with the Stipulation. Mr. Polito asked Attorney Duval whether his client was in compliance with the conditions of the Stipulation. Attorney Duval stated his client was not present so he could not confirm this but would also question whether this Board has the authority to enforce. Mr. Polito stated they do not have the authority to enforce, but if they granted a Special Exception to expand what is there, the Board runs the risk of blessing whatever is there, whether or not it is in compliance with the conditions of the Stipulation. The Board could be giving rights that they never intended on giving. Mr. Polito stated that he has been at the site and knows that there is no chain link fence. Mr. Polito asked Attorney Duval if his client had a chain link fence around the site. Attorney Duval stated that he did not believe there was a fence installed. Mr. Polito responded then that if Attorney Duval’s client did not have a chain link fence then he was not in compliance with the Stipulation.

The Board needs something saying they are in compliance. Attorney Duval stated he has spoken with one of the Selectmen and will be going before the next Selectmen’s meeting to discuss the Stipulation.

Mr. Polito asked how the applicant wanted to proceed. Attorney Duval asked for a continuance.

Minutes transcribed from tape Respectfully Submitted