3. Janet Porter – Mr. Carter made a motion that based on the application presented and being that there were no changes, the Board approved the request for renewal. Mr. Riehl seconded and it was unanimously approved.

The following amendments/corrections were made

Page 3, first paragraph half way through, change "consideranything" to "consider anything".

Page 3, first paragraph, half way through, after "Court if there was" change "nay" to "any".

Samuel Zannini and Maggie Osborne recused themselves from this hearing.

Abutters list was read with the following present:Samuel Zannini; Attorney Campbell

Mr. Polito recapped that at the last hearing the Board had taken an administrative decision to limit what the applicant could present tonight based on the instructions received from the Court. Mr. Polito said that he was exercising his prerogative to seek the Board’s input on whether he should recuse himself from this hearing as requested by Attorney Campbell in writing. Mr. Carter felt it was appropriate for Mr. Polito to involve himself the Administrative decision as to what would be discussed at this hearing. This is separate and distinct from what this Board is about to hear. Mr. Riehl agreed and reiterated that the Board stipulated what they would hear if the rehearing was to occur. The Board agreed unanimously that Mr. Polito should not recuse himself. Mr. Polito took that into consideration and stated that he would not recuse himself from the hearing and disagreed entirely with the written arguments made by Attorney Campbell. Mr. Polito stated that it was the prerogative of the Chair of the ZBA to rule on what is to be the administrative procedures.

Mr. Polito asked if any of the Board members would like to overrule the decision of the Chair to determine what would be heard from the applicant at the rehearing. The four person Board reaffirmed the administrative decision that the Chair had made last month.

Mr. Polito recognized Attorney Campbell and reiterated that he would be required to limit his arguments to issues concerning hardship.

Attorney Campbell requested that this matter be continued until there was a full five voting members of the Board. Attorney Campbell stated that under RSA 43:7 the Board could bring in alternate members to hear appeals and he believed he was entitled to a five member Board. Mr. Polito asked Attorney Campbell to show him the RSA where it said he was entitled to a five member Board. Mr. Polito thought it said that he was entitled to more than three; otherwise the Board was just going to rule that he was incorrect. Attorney Campbell said he relied on the opinions of Attorney Peter Laughlin. Mr. Polito said he preferred that Attorney Campbell find the RSA because that is what the Board would go by. Mr. Carter agreed.

Attorney Campbell said the provisions on which he is relying on for the five-member board are actually related to the question of due process to which an applicant is entitled. He again reiterated the provisions of Attorney Peter Laughlin treatise on New Hampshire Law. Mr. Carter read the provisions of RSA 673:11, involving alternate members. He stated his opinion that RSA 673:11 does not require that an alternate must be appointed. Mr. Polito agreed. Mr. Polito said that as a courtesy, the Board would allow Attorney Campbell to continue this to the next hearing, but wanted him to know that whether he got a five member Board or a three member Board next time, he would have to proceed or withdraw his application without prejudice as this can not go on forever. Attorney Campbell asked for a five-minute recess to discuss this with Mr. Zannini.

Attorney Campbell and his client decided to proceed with the four member Board but wanted to make it clear that they are under a reservation of rights to raise not only the Chair’s failure to recuse, but the failure to be provided with five members.

Attorney Campbell asked if was not going to be allowed to make a presentation on the other four criteria. He asked for a ruling by the chair on that matter and would like to appeal that ruling. Mr. Polito stated that he would not have an opportunity to do that since the Board had already voted on the matter last month and reaffirmed that decision this month when no member mad a motion to overrule the decision of the Chairman . Attorney Campbell protested and Mr. Polito stated that Attorney Campbell was out of order and asked him to continue on what he was instructed to do. Mr. Polito said that if he found Attorney Campbell out of order one more time, the Board will ask him to remove himself from the room. Mr. Polito told Attorney Campbell that he was to obey the instructions of the Chair. Mr. Polito said the instructions were that there was to be no more pontificating on the law. The Board has heard enough. Attorney Campbell is limited by the Board’s vote to do nothing but present that portion of the application relative to hardship per the court decision. Mr. Polito stated that if there is any deviation, Mr. Polito will have him removed and the applicant can decide if he wants to proceed without his counsel. Mr. Polito asked Attorney Campbell if he understood. Attorney Campbell stated that he did.

Attorney Campbell stated that this hardship fell under the Boccia standard and is an area variance. This lot was historically two separate house lots. It exceeds the size of the surrounding lots. The current setback and lot size was adopted after these lots were created and the existing house was built on the site. Attorney Campbell said the area upon which they proposed to build the second structure is an unreserved area that was intended by the developer at the time of the original subdivision. All of the surrounding lots on the other three sides have been fully developed. There are no additional lots to acquire to satisfy the lot size currently mandated by the ordinances.

Mr. Polito asked Attorney Campbell to clarify his claim that this is the largest lot in the subdivision and asked if he had the tax map where he could demonstrate this. Attorney Campbell said that lot 31 is a double lot and if you look at the size of the lots on Blueberry Lane and Pheasant Lane, the only lots that approach it or equal it in size are lots, 28, 26 and 27. These lots had been re-subdivided after the original subdivision. Mr. Polito asked if he had a record to indicate that. Attorney Campbell said that he provided a plan to show that. Mr. Polito said that Attorney Campbell had not provided information regarding acreage of these lots and that the Board was just guessing. Mr. Zannini believed the lots 26 and 27 were one-acre lots. Attorney Campbell had the original subdivision plan and said it was clear that these lots were re-subdivided because originally lot 33 on the plan fronted all the way on Pheasant Lane. The Board looked at the plan dated October 1965. Mr. Polito said all of this is in the Court records. He asked Attorney Campbell what year it was resubdivided and if he had all of the acreage to compare. Attorney Campbell said he did not think he had all of the plans with him this evening. Mr. Polito asked if this information mattered and that he did not think this was materially different. Mr. Zannini was trying to demonstrate the uniqueness of his property because he has five hundred feet of frontage on his lot and is twice the size of any other lot in this subdivision. Mr. Polito said this may be true in his subdivision, but this whole area was done around the same time and he can see plenty of other lots that are the same as his. Mr. Polito said this was a good piece of information to compare with houses in this particular subdivision, but also it was a piece of information to show how it compared with other subdivisions nearby that were created at the same time under the same zoning. Mr. Polito disagreed with a statement in the application that this lot exceeds the size of surrounding lots. Attorney Campbell has verbally represented that those surrounding lots were subsequently subdivided. The Board agreed they were subdivided, but Attorney Campbell does not have the information to substantiate when they were subdivided. The Board does not know if this lot exceeds the surrounding lots because they are looking at a tax map that does not list acreage. Attorney Campbell stated that he would reference the visual tax map with regard to the configuration of the Zannini property today. He would consider the surrounding properties to be listed as 33, 34, 35, 29, 25, 26, also the remaining lots down Bluebird Lane and the other lots on Pheasant Lane, all of which were developed by the same developer. Mr. Friel asked if the Wood Drive and Sunset Drive subdivisions were done at the same time. There are four different subdivisions on this plan and Attorney Campbell is picking and choosing which ones he wanted to use for comparison. Attorney Campbell claimed he was comparing to the neighborhood that this property is in. Attorney Campbell said that the Wood Drive and Sunset Drive subdivision were created subsequent to this subdivision and after the zoning had changed. He believed Mr. Lewis created them. Mr. Polito did not see anything presented tonight that tells the Board they should not consider the whole area.

Mr. Polito asked if Attorney Campbell had anything else to add, so that the Board could close the public hearing and discuss this without being there all night. Attorney Campbell stated that he did not. Mr. Polito closed the public hearing.

Mr. Polito stated the Board would be voting on the hardship criteria as it relates to Boccia.

2.) There was a consensus of the Board that this criterion was met.

3.) Mr. Friel said that based on the information presented he cannot come to the conclusion that this lot met this criteria. Mr. Riehl asked for a history of this, as he is fairly new. Mr. Polito gave a brief description of how the lots became one. Mr. Polito said there is a consideration because this was originally two lots, but there are no vested rights and the applicant needs a variance. Mr. Polito said that when Mr. Zannini purchased this it was clear that it was a single lot. Mr. Carter stated that even if there were vested rights, they do not transfer upon new ownership. Mr. Polito reiterated that there are no irrefutable facts from the public record that would indicate that this lot is that unique. The Board agreed that an area variance is needed. The Board agreed unanimously that the hardship criterion was met. Mr. Polito closed the hearing.

Mr. Polito recused himself from this hearing.

Abutters list was read with the following present:

Barry VanRy;. James Kirsch for the Town of Atkinson

Mr. VanRy stated that he was going to reference both the State Statues and the Local Zoning regulations. Mr. Van-Ry believed that he qualified under Section 454 as an agricultural activity according to both the local and state regulations. Mr. VanRy read a portion of the regulation that said a farm/roadside stand shall remain as an agricultural activity and not be considered commercial. He believed this was important because some people believe he is running a business. Mr. VanRy read a portion of his deed indicating that a commercial entity is not allowed. He is a business, which files his farm income with the IRS and is recognized by the Federal Government as such. Mr. Friel asked what document Mr. VanRy was reading from and Mr. VanRy indicated it was the "State and It’s Government", Chapter 21, Statutory Construction, 21:34(a). The local zoning says that as an agricultural activity he is exempt from home business application. However, it was recommended to him to apply for a home business and that is why he is here. Mr. Carter believed that based on the description of what Mr. VanRy does on the property it is agricultural. Mr. Riehl asked Mr. VanRy if he were training people to ride and dressage. Mr. VanRy said that he does give riding lessons to a few select people. Mr. VanRy said the business includes all of those activities.

The Board discussed the sign issue. Mr. Riehl asked if the business were boarding horses, riding lessons, hay sales, produce and flower sales. Mr. VanRy said that is all they have discussed selling at this particular point. Mr. Kirsch did not believe that a sign that said Mr. VanRy Stables was advertising products for sale and that interpretation for the multiple signs would be that you have one sign advertising one product, another for a different product and so on. Those multiple signs could equal 15 square feet. He did not believe it was only to have one 15 square foot sign. Mr. Riehl said the zoning indicates that multiple signs are allowed but does not disallow only one sign. Mr. Carter agreed. Mr. Carter said the possibility exists that it could be one 15 square foot sign under the zoning if it were truly agricultural. Mr. Riehl believed that allowing multiple signs for agriculture was a relaxation of the ordinance and what a farm stand might wish to do.

Mr. Friel asked the Board if they believed this was an agricultural use. There was a consensus of the Board that this was an agricultural use and that it was exempt from the requirement for a home business permit. Mr. Kirsch believed that a sign must advertise the products he is selling. Mr. VanRy stated that the care of horses and horseback riding is one of his products and the VanRy Stables sign advertises that. Mr. Zannini asked about other properties in Town that have signs. Mr. Kirsch explained that you could have signs that identify your home, as long as you are not a business. Mr. Zannini did not understand the difference. Mr. Riehl thought he was missing something, as he had not heard anything that did not sound agricultural. A stable is an agricultural use. Mrs. Osborne agreed.

The Board agreed the sign was related to the agricultural use. Mr. Mr. Riehl believed the sign "VanRy Stables" conveyed an agricultural use. The Board agreed.

Minutes Transcribed from tape.

Respectfully submitted ________________________________

Rebecca Russo Approved