Correspondence: Number 2, change "Budge" to "Budget".

Page 3, first Paragraph, one quarter of the way down, change "coli form" to "coliform".

Page 3, first Paragraph, halfway down, after "flush toilet from" delete "of".

Page 3, third paragraph, first sentence, change "flush" to "flushing".

Page 3, fourth paragraph, half way through, change "existing" to "existing"

Page 5, first paragraph, change "Ted" throughout the document to "the Road Agent".

Page 5, first paragraph, end, after "Mr. Polito" , change "noted" to "annotated".

Page 5, seconded paragraph, after "abutting property" change "though" to "through".

Page 5, third paragraph, second last sentence, change "could not control" to "could not be controlled", delete "that".

Change the overstriking under the criteria on pages 6 and 7.

Home Business Application for Brian Donnelly, 11 Woodside Way, Map 18, Lot 13. Based on the application as presented, Mr. Friel made a motion to approve the application; it was seconded by Mr. Lewis and approved. Mr. Carter abstained.

Arlene Hawkins dated 11/30/04 re: Osborn proposed new building, Hemlock Shore Drive.

Home Business Application (replacement of Gopher Errands) for Julie Fortin, 56 Academy Avenue, Map 14, Lot 72. The Board agreed that based on the letter, Gopher Errands was abandoned. Based on the application, Mr. Friel made a motion to approve the application for Fortin Financial Services, Mr. Carter seconded the motion and it was unanimously approved.

Robert Jones to Michael Saviano dated 12/22/04 re: Permit Renewals, 33 Boulder Cove Road, Map 20, Lot 12.

Frank Polito to Planning Board dated 1/4/05 re: Proposed SCR Zoning Amendment.

Frank Polito packet dated 1/5/04 re: Citizen Petition on proposed Amendment to Section 620 SCR Zone.

Outgoing

Mr. Eugene Lagasse dated 12/9/04 re: Home Business renewal at 40 Academy Avenue, Map 14, Lot 56.

Kimberly Hess dated 12/13/04 re: Home Business Approval at 154 Main Street, Map 17, Lot 75.

Lewis Builders, Inc. dated 12/13/04 re: Special Exception- Expansion under Zoning Section 700:1a on 54 Sawyer Avenue, Map 8, Lot 3-1.

Attorney Bernard Campbell dated 12/13/04 re: Daniel and Maggie Osborn Wetland and Frontage Variance approval, Hemlock Shore Drive, Map 22, Lot 57.

Philip Consentino dated 12/9/04 re: Home Business Renewal for 140 Main Street, Map 13, Lot 23.

Zoning Board Legal Notice for meeting of 1/12/05.

 

 

Attorney Bernard Campbell for Big Island Nominee Trust, Daniel Osborne, Trustee submission of a new Application with new information to request a Wetland Variance to allow an existing non-conforming structure to be 23.1’ + (76.9’₊ variance) from wetland as opposed to the required 100" on property located on Map 22, Lot 39, RR3 Zone.

Abutter List was read with the following present: Mrs. Osborne; Big Island Pond Corp.; Attorney Bernard Campbell

Mr. Polito said that at the last meeting the Board had taken considerable input from the public and had discussed the issues in detail. They had accepted the application because it was new information. At the conclusion of the last hearing, the Board was waiting for the approval from the State on a contigency plan on the septic system. Attorney Campbell explained that they had received verbal approval from the State and had an approval number, but was not able to get the written approval for this meeting. Mr. Polito also said he tried to obtain a copy of the approval, but could not. The Board agreed they could condition an approval on receiving this. Mrs. Osborne gave the Board a copy of the plan, which was signed by the Town’s Health Officer, depicting the location for a new well, if it were ever needed.

Attorney Campbell read the application and the Board reviewed the criteria:

Based on the discussions in the previous hearings the Board agreed unanimously that this criterion was met.

The applicant represented that they will be installing a composting toilet in the outbuilding to reduce the load on the existing toilet located in the house. Based on the discussions in the previous hearings the Board agreed unanimously that this criterion was met.

1.) Based on the discussions in the previous hearings the Board agreed unanimously that this criterion was met.

2.) Based on the discussions in the previous hearings the Board agreed unanimously that this criterion was met.

Based on the discussions in the previous hearings the Board agreed unanimously that this criterion was met.

Based on the discussions in the previous hearings the Board agreed unanimously that this criterion was met.

Barry VanRy request for Appeal of the Building Inspector’s decision to deny a Sign Application under Article IV, Section 470:11 "Farm stand Signs" on property located at 29 Main Street, Map 4, Lot 1, TR2 Zone

Abutter List was read with the following present: Barry VanRy

Mr. Polito reiterated that this was not an application for a variance, but simply an Appeal from an Administrative Decision. Mr. VanRy contends the Building Inspector denied a permit for a sign for an agricultural property and thought the issue is whether or not this was agricultural. Mr. Polito did not agree. Mr. VanRy wanted to know why the request was denied. Mr. Jones contends that it is not a farm stand. Mr. VanRy said that Mr. Polito wanted the record to be clear that the application for a sign permit said VanRy Stables, and not a farm stand. Mr. VanRy contended a farm stand sign does not have the words farm stand in it. Mr. Polito asked how a stable was a farm stand. Mr. Polito read zoning section 470:11 regarding farm stand signs. Mr. VanRy claimed the stables are there to sell equine goods. Mr. Polito asked if anyone on the Board believed a stable was a farm stand. Mr. Polito said that a stable is the boarding of horses. Mr. VanRy did not agree. Mr. Polito contended the sign does not advertise horses for sale, or tomatoes for sale or anything related to a farm stand. Mr. Polito said that Building Inspector denied the permit because it is not a farm stand sign. Mr. Jones concurred. Mrs. McGrath stated the issue was the zoning definition of "farm stand sign" and the criteria is that the sign must advertise the location and items for sale, which the proposed sign does neither. Mr. Polito said a farm stand is a temporary facility to allow the selling of agricultural products grown on the property. Mr. Polito agreed the proposed sign did not meet the definition. This does not mean he cannot have a stable, but he cannot try to go under the definition of a farm stand when this clearly is not one. Mr. VanRy said there are no definitions in the zoning that define what the uses are for agriculture. Mr. Polito said that agricultural businesses would fall under home business or commercial. Mrs. McGrath did not agree they would fall under home businesses because it could not qualify and meet the guidelines under the zoning. Mr. Polito said that does not mean the Town doesn’t have the right to regulate this. Mr. VanRy did not believe this was true and told the Board he had the RSA, which he attached to his application. Mr. Polito explained to Mr. VanRy that he did not have the Law, but rather the Construct of the RSA. Mr. Polito said that under RSA, the Town has the right to regulate agricultural businesses. He has spoken to the Commissioner of Agriculture who has confirmed this. A town cannot regulate an agricultural business out of existence. The Board noted that this was getting off track and not the issue before the Board and agreed they needed to deal with the appeal and then discuss what options Mr. VanRy may have.

Mrs. McGrath said the sign that is proposed is just an identification sign and asked if a permit was even required. Mr. Carter said if it is not included in the zoning, it is excluded. It was Mrs. McGrath’s belief that the proposed sign did not qualify as a "farmstand sign" under 470:11 but that Mr. VanRy may put a sign on his property for identification purposes without a permit under 470:8. Under 470:8, a non-commercial sign showing property number, name of occupant or other identification is allowed. Mr. VanRy agreed that the sign was a different issue than whether or not he is conducting a business that the Town wants to regulate. Mr. Polito did not agree and said the applicant has represented that he is going to have some sort of business activity on the property. Mrs. McGrath reiterated that under 470:8, a non-commercial sign showing property number, name of occupant or other identification is allowed. The porposed sign "VanRy Stables" is for identification. Mr. Polito explained the Construct of the RSA is not law.

Mr. Carter made a motion to deny, but Mr. Lewis said he did not know how to vote if he did not know if there was actually a stable there. If there is a stable there, does he have the right to tell the world it is there, by displaying a sign? Mr. Lewis said he was going to put a sign up on a farm he owns for identity. Mr. Polito said there are 4 or 5 pages of zoning related to signs and he does not see any zoning that allows that. Mrs. McGrath said that under zoning 470:10, in the commercial zone, a sign for identity purposes is allowed. Mr. Carter thought the Board was getting off track, because this is not what is before the Board. The issue is whether the Building Inspector made an error in denial of the application.

Mr. Polito opened a discussion for the Board on relative issues. Mrs. McGrath asked if there was arequirement for a sign permit to put up an identification sign.

Mr. Polito said there was a difference between a farm that has no customers, and no business but just grows things and a farm that generates business and has an impact. Stables do seem to fall under agriculture and animal husbandry. Mr. Polito said that the Town of Atkinson does allow agricultural in the zoning. Mr. Polito also believes that based on discussions with the NH Commissioner of Agriculture and upon reviewing the RSA’s, the Town can regulate an agricultural use because the State understands that some uses affect traffic, odor, noises, etc. Mrs. McGrath contends that agriculture uses are permitted in all zones except commercial and therefore this would not qualify under a home business because it would not meet the guidelines.

Mr. VanRy claims that under section 450:4, he is exempt. Mr. Polito asked him what products are grown and sold on the product. Mr. VanRy said they were equine products, which could include hay and manure. Mr. Polito reiterated that as soon as the agricultural activity takes on the appearances and dimensions of a business that has impact, the Town has the right to regulate it under the zoning.

Mrs. McGrath said the sign that is proposed is just an identification sign and asked again if a permit was even required. Mr. Carter said if it is not included in the zoning, it is excluded. It was Mrs. McGrath’s belief that Mr. VanRy could put a sign on his property for identification purposes and that it was allowed under the zoning. Mr. VanRy agreed that the sign was a different issue than whether or not he is conducting a business that the Town wants to regulate. Mr. Polito did not agree and said the applicant has represented that he is going to have some sort of business activity on the property. Mrs. McGrath stated that the issue of business activity is not properly before the Board.

Mr. Polito recognized Chief Consentino who was in favor of Mr. VanRy being able to display an identification sign on his property.

Attorney Bernard Campbell for Mary Ann Casey request for Appeal from An Administrative Decision of the Building Inspector to deny a Building Permit for the purpose of reconstructing an existing year round 5BR dwelling in place of a seasonal dwelling on property located at 37 Stickney Road, Map 23, Lot 32, RR3 Zone.

Abutter List was read with the following present: Mary Ann Casey; Attorney Bernard Campbell; Mr. Casey

Attorney Campbell contends the Board needs to make a decision on two issues. The first being whether it was used as a year round home and second, if the first part is proved, has the vested use gone away by some type of abandonment.

Attorney Campbell explained the parcel was originally part of the Connolly property in the 1900’s. It passed into the Stickney family and conveyed into Mr. Casey’s father and mother in 1962. It was conveyed from her father to herself in 1992. Attorney Campbell acknowledges that there is a provision in the ordinances to allow for a seasonal to year-round conversion. The site has some geographic constraints with regard to the septic and the upgrading of it, and the goal is to reduce the number of bedrooms in it, but to rebuild in the same location and upgrade it. If it is determined that the house has vested year round rights, then the approvals would be sought from the State with waivers needed. If it is determined that the home is seasonal the State would be less likely to grant waivers or the waivers would probably be limited to a two-bedroom dwelling, which is not the desire of the Caseys. Mr. Polito reminded the Board this was an appeal from an administrative appeal.

Mr. Polito explained that back in the 1980’s and again in the 1990’s, the Town sent letters to property owners of these homes explaining the Town had classified their properties as seasonal and that they needed to come before the Town if they did not agree. They would have needed to demonstrate that they had a prior use that was year-round. This would include showing affidavits from neighbors, records indicating there was someone receiving mail year-round, voting cards, vehicle registrations and utility bills and a chronological use of the property and occupants. Attorney Campbell did get a couple of statements from two neighbors about the use pattern. This was used as a year-round home up until Mr. Casey bought it in 1962. It was used briefly by Mrs. Casey’s daughter in the mid 1970’s, for a period of 1 to 2 years, as a year-round residence. Other than that it was used as a secondary residence or vacation home for the Caseys from 1962 forward. Mr. Casey said that they live in the house 8-10 months out of the year. Mr. Polito said that Town records and everything in the property folder, which is quite extensive, indicate that this is a seasonal home. Mrs. McGrath said the key wording in the zoning is primary/permanent residence. Attorney Campbell has concerns about the structure of the ordinance as it relates to the definitions.

Mr. Polito agreed there is a gray area around vested rights and abandonment. The Town took a position a long time ago that there was a health and safety issue on the lake. Most of the homes were constructed in this area before there was any such thing as seasonal or year round status. Most of them would not come close to meeting building requirements or water and waste water requirements of what would be built as a year-round residence today. The Town sent letters to all owners, more than once, that alerted them to the status and explained that there was a process to convert to year-round or demonstrate that it was year-round. If someone comes in and there are no records of a year-round status then it is was incumbent upon the resident to demonstrate that it is year round.

Mrs. Casey explained that the property was originally bought by her father. The house was passed on to her in 1992 and has been used from April through December ever since. They would like to retire there permanently. Her daughter lived there between 1977 and 1979. Mrs. Casey met with a neighbor, Nancy Woodman who would attest to the fact that there was a family named the Wheelers, who lived there year round. Mr. Santomosino also attested the Wheeler family lived there. Mrs. Casey said that during her stay in the 1970’s, she had registered a vehicle in New Hampshire, but there was no mailbox and the Post office does not keep records dating back that far for PO Boxes. She has contacted the State of New Hampshire to try and get a copy of the registration for her vehicle. Mr. Carter asked if the residency had to be continual?

Mr. Casey said that when the original letter came, they thought because the Wheelers had lived there, they didn’t have to do any thing else. Mr. Polito stated for the purposes of the Town, they have defined issue of abandonment by giving people the opportunity to correct the tax cards and or records, and if it is not done then the supposition is the records of the Town are correct. Mr. Polito said that in addition to the letters that have gone out, the tax bills that go out every year indicate the property is seasonal. Mr. Casey said they did not pay attention. Mrs. McGrath said that all the information presented indicates that the town records indicate the property as seasonal, the Casey’s had notice of the seasonal classification, and there is no record of the seasonal status ever being challenged, questioned, or appealed.

Mr. Polito said they could get into a long discussion about abandonment, but based on the information provided tonight, they are only here to decide one issue, that is whether the Building Inspector properly denied the permit because of the seasonal status. Attorney Campbell wants to know if they establish this was year round, could it be tabled to produce the written evidence. If the Board assumes that it was used, but instead focus on this issue of abandonment, the Board could make the ruling on this issue.

Mr. Carter said there is not sufficient input from the applicant to prove the Code Enforcement Officer made an error in denying the application.

Attorney Campbell asks that the Board make some finding of fact on whether there was some use. Mr. Polito said the Board respectfully declined. Mr. Polito believes the Board is under the narrow confines of voting on what the Building Inspector denied.

Attorney Thomas Morgan for Michael Saviano request for Appeal from An Administrative Decision of the Building Inspector to deny the renewal of Building Permit 4663 dated 4/26/99 & Permit 7453, dated 4/22/02 for property located at 33 Boulder Cove Road, Map 20, Lot 12, RR3 Zone.

Abutter List was read with the following present: Thomas Schwant; Attorney Thomas Morgan; Big Island Pond Corp.

Attorney Morgan asked Mr. Polito to consider recusing himself for the hearing based on the claim from Mr. Saviano that Mr. Polito could not be impartial. Attorney Morgan said that Mr. Saviano claimed Mr. Polito said "he had a colored and checkered past" and felt he had some prejudice toward any application that would come before the Board. Mr. Polito has no recollection of having ever said anything about Mr. Saviano personally. Mr. Polito said if anything were said, maybe it would have been in reference to the property. Attorney Morgan claimed they were one in the same for this purpose and questioned whether he could be impartial. Mr. Polito stated that he does not know Mr. Saviano personally and has never had any contact with him other than at the hearings. Again Attorney Morgan asked Mr. Polito if he wanted to step down from the Board for this hearing. Mr. Polito discussed it with the other members and they were unanimous that it was Mr. Polito’s decision. Mr. Polito said that he would not step down for this hearing.

Attorney Morgan explained that the building permits were all issued and stemmed from an approval given in 1998. Mr. Polito reviewed the property file. Mr. Saviano was issued two building permits; one was issued in 1999, which was never completed. Then there was another permit applied for in 2002, which was identical to the one in 1999. This was never acted upon, as far as the Building Inspector is aware. There were never any inspections requested and the permit lapsed. Mr. Jones said Mr. Saviano did not want to reapply for another permit, but wanted him to renew the previous two permits. Mr. Jones could not renew them because they had been closed out and because Mr. Saviano was attempting to expand the second floor without a variance. Mr. Jones said if Mr. Saviano had made a new application asking for the identical scope of work that was granted before, he would have issued it. Mr. Polito explained that Mr. Jones acted under BOCA Codes, which the Town has adopted. Mr. Polito read the BOCA Codes. Mr. Carter thought there was another issue in that the scope of work was greater than what was originally granted. Attorney Morgan contends the issue is that the scope of the work varied from the original plan submitted. Mrs. McGrath said it didn’t matter and that a new application would have to have been filed in any event because the previous permit expired a few years ago..

Mr. Carter said the issue is not relevant, in that the BOCA Codes gives the authority to deny based on the time lapse. Mr. Carter thought the Board was getting sidetracked and that the only issue before them was whether the building inspector made an error in the denial of the extension of the building permits. The Board agreed. Mr. Polito agreed and said the Town has adopted BOCA Codes and all of administrative duties.

Attorney Morgan contends the denial was based on work not being completed, but it has in fact commenced. Mr. Saviano is working on the house himself. Attorney Morgan contends this would overly restricts the entire BOCA Code. There is nothing that says you cannot renew a permit. Mr. Carter agreed that a person could build a house one brick at a time, over twenty years, but must timely request in writing and make a case for an extension. There is nothing in the record that Mr. Saviano ever applied for an extension 180 days at a time.

Mr. Polito asked Mr. Jones if there has ever been a call from Mr. Saviano in the three years since the issuance of the first permit, for an inspection. Mr. Jones said Mr. Saviano has never called for any inspections or requested any extensions on these permits. The buildings permits had expired and were closed out.

Attorney Morgan claimed that the Board’s decision is once the permit expires, you simply cannot renew it. Mrs. McGrath said it was not the Boards decision to make. Mr. Polito again reiterated the issue before the Board is the appeal of an administrative decision and whether the Building Inspector made an error.