Home Business Renewal Application – Michael Murphy, 50 Summit Drive, Map 8, Lot 53.

Town & City issue September 2002.

Home Business Renewal Application – Ronald Thompson, 25 Providence Hill Road, Map 7, Lot 28-2.

The Board agreed this was exempt; there is no outward appearance of a business.

Memo from James Kirsch dated 9/18/02 re: Thomas Tarr – Storage of Vehicles at 8 Dow Avenue, Map 8, Lot 124.

Home Business Application – Thomas Tarr – 8 Dow Avenue, Map 8, Lot 124.

The Board agreed they could not act on this. They are exempt based on the information but cannot have the dump truck (commercial vehicle storage) located on the property unless it is screened.

James Miller, Home Business response slip to inquiry re: employees.

Atkinson Budget Committee memo re: 2003 Budget.

Home Business Renewal Application – Joseph Guischard – 6 Jericho Road, Map 2, Lot 12.

Memo from Vic Richards re: Budget Presentation to Selectmen.

Rockingham Planning Commission memo re: 2002-2003 Zoning Ordinance Amendment Schedule.

Home Business Renewal Application – Michael Jackson – 6 Conley Road, Map 20, Lot 20-3.

Planning Board minutes dated 10/2/02.

Home Business Renewal Application – Robert Levine, 48 Summit Drive, Map 8, Lot 54.

Home Business Renewal Application – Dr. Charles White – 29 Island Pond Road, Map 17, Lot 45.

Sumner Kalman dated 10/7/02 re: Currier v. Zoning Board of Adjustment.

Outgoing

Mr. & Mrs. Tarr dated 9/18/02 re: Commercial Vehicle Screening.

Mr. Eugene Lagasse dated 9/17/02 re: Home Business Renewal approval.

Mr. Lincoln Jackson dated 9/17/02 re: Cluster Buffer Variance denial.

Mr. David Cosio dated 9/17/02 re: SE/Accessory Living Unit approval.

Mr. Paul Hammond dated 9/17/02 re: Cluster Buffer Variance approval.

Mr. Robert Weber dated 9/17/02 re: Wetland Variance approval.

North End Blvd. Corp. dated 9/17/02 re: Frontage Variance approval.

Mr. Robert Allen dated 9/18/02 re: Wetland Variance approval.

Mr. Robert Levine dated 9/24/02 re: Home Business renewal.

Dr. Joseph Guischard dated 9/24/02 re: Home Business renewal.

Mr. Michael Jackson dated 9/24/02 re: Home Business renewal.

Dr. Charles White dated 9/24/02 re: Home Business renewal.

Work Session – Update Zoning Application to reflect changes to Hardship Criteria.

The Board agreed that there should be a legal disclaimer added to the document to protect the Town. The Board members will review the document and discuss it further at the next scheduled meeting.

Michael Murphy, 50 Summit Drive, Map 8, Lot 53

Mrs. McGrath reviewed the application. There have been no changes. Based on the information presented, the Board unanimously approved the renewal, contingent upon the inspection of the Fire Department.

James Miller, 79 Maple Avenue, Map 14, Lot 12

The Board had asked for clarification of his application regarding the hours. The Board determined the Applicant worked off site. The Board unanimously approved the renewal.

Joseph Guischard, DVM, 6 Jericho Road, Map 2, Lot 12

Mrs. McGrath reviewed the application. There was a question regarding the number of hours. The Board determined that the number of hours is for the additional employees. The Board unanimously approved the renewal.

Jennifer Latham

Mrs. McGrath reviewed the application, which was dated in 1999. Mr. LeMay had sent a letter for renewal in January of 2002. There has been no response from the applicant. The Board determined this was no longer a business.

Michael Jackson – 6 Conley Road, Map 20, Lot 20-3.

Mrs. McGrath reviewed the application. The application from 2000 was slightly different, but had the same elements. Mr. Carter believed that the herbal business was agricultural. The Board unanimously approved the renewal.

Dr. Charles White – 29 Island Pond Road, Map 17, Lot 45

The Board questioned the number of employee hours, but there has been no change on this application since the 1970’s. Mr. Carter suggested that the limitation of hours probably was not in effect in 1976. There is only one dentist and he requires support employees to operate his practice. This business had not changed since 1976. The Board agreed unanimously to approve the renewal

Robert Levine, 48 Summit Drive, Map 8, Lot 54.

The Board reviewed the application and agreed unanimously to approve the application

Review and Consideration - Lincoln Jackson request for rehearing of Variance from Article VI, Section 600:11 to permit the construction of an inground swimming pool within the 100’ landscaped cluster buffer zone on property located at 2 Moccasin Path, Map 6, Lot 54

Mrs. McGrath explained that in order to grant a rehearing the applicant must present new evidence that was not considered at the last hearing or that the decision was unlawful or unreasonable. Mrs. McGrath read the request.

Mrs. McGrath read from the August 2001 book, The Board of Adjustment in New Hampshire handbook, pages 42-44, and the criteria regarding a rehearing request. The standard for the Board to consider is that a rehearing should not be granted "unless the petitioner claims a technical error has been made to his detriment or he can produce new evidence that was not available to him at the time of the first hearing."

The applicant maintains that zoning sections or the 1993 zoning history was not available to him or specifically considered by the Board at the time of the first hearing. Mr. Carter stated that it is not the Board’s responsibility to make information available to the applicant but solely the responsibility of the applicant to do due diligence. The new evidence standard is not met by citing the applicant’s further review of zoning law records. The Zoning book is available at the town hall to any applicant to review. Mr. Rockwell said it is not the Board’s responsibility to explain the law.

Mr. Carter stated that if applicant’s response is attacking the premise of the buffer zone it is not the purview of the Board to interpret whether the law is a correct law. That is the purpose of the courts.

The applicant also cites zoning section 600:15 as new information or as technical error by the Board. Mrs. McGrath read section 600:15, which deals with open space recreational use of common lands in a rural cluster residential development and permits swimming pools in common land. Mr. Ashford agreed that this might be new information. Mrs. McGrath stated the applicant was saying that his request for a swimming pool was incorrectly denied because buffer areas allow swimming pools.

The Board discussed whether this section should have been considered or whether it even applied to the last hearing. Mr. Carter stated that common lands could often be the central land around which clustered homes exist. Common land is not the buffer. Mr. Carter believed that common land and buffer are two separate things. Mr. Carter contended that the applicant is using apples to explain oranges and this argument is not relevant. Mrs. McGrath stated that the applicant is trying to raise a point that in his opinion this is a new point not previously considered.

Mr. Carter said that there is no intent in the opportunity to grant the rehearing that goes to the issue of trying to do a better job to convince the Board to grant the variance. The applicant obviously prepared the rehearing request in a more thorough fashion in an attempt to re-present his case. The applicant has not presented issues that were not considered and issues or arguments that he could have or should have presented but did not do not count. Mr. Carter stated that there have been good arguments but the applicant does not get a chance to present the case twice and has not offered huge new facts. Mrs. McGrath stated that this was a good point but to grant a rehearing there does not need to be huge new facts. However, zoning provisions are neither "new evidence" nor "new facts".

The buffer zone used to be outside of the residential lot. The buffer requirements have been changed so that there is now landscaped buffer zones on residential lots and zoning section 600:11 (b) reduced the landscaped buffer requirement to 50’. Mrs. McGrath thought the point the applicant was making was that the Board should have considered the zoning ordinance in 1993, when the subdivision was approved and not the zoning ordinance of today. Mrs. McGrath was not sure this was true and did not believe it would have affected the Board’s decision.

The applicant also suggested he could relocate the proposed site of the pool. The Board suggested that if the applicant is attempting to modify his original request then he could reapply to the Board with a different set of facts as a new request for a variance.

Minutes Transcribed from Tape Rebecca A. Russo