August 14, 2008 Minutes

Pittsfield Zoning Board of Adjustment
Town Hall, 85 Main Street
Pittsfield, NH 03263
Minutes of Public Meeting

DATE: THURSDAY, AUGUST 14, 2008

ITEM I. Call to Order at 7:01 P.M. by Ed Vien, Chairman

ITEM 2. Roll Call

Members Present: Ed Vien (EV) Chairman, Susan Muenzinger (SM), Vice Chairman, Carole Dodge (CD), Paul Metcalf, Sr. (PM), Larry Federhen (LF), Alternate, and Delores Fritz, Recording Secretary.

Members Absent:

Jesse Pacheco (JP) and David Rushford (DR), Alternate.

ITEM 3. Approval of Minutes of July 10, 2008

(PM) Motion to approve Minutes of July 10, 2008. (CD) Second.
Carried 4-1 (SM) Abstain.

Several corrections were noted.

ITEM 5. Public Hearing with respect to an application for a Special Exception for a Home Occupation for landscape and design business filed by Chris Morel, 375 Tilton Hill Road, Pittsfield, NH 03263 (Tax Map R-6,
Lot 3). The property is owned by Edmond and Marion Pouliot, 375 Tilton Hill Road, Pittsfield, NH 03273. This property is located in the RURAL Zone.

(EV) It has been noted that one of the abutter has not been notified. Therefore, we will have to re-notice all abutters and notice will be published in the newspaper. We apologize for any inconvenience.

Since several members of the audience had some questions in regard to this hearing, (EV) recused himself and was seated in the audience.

(SM) As the Chairman mentioned, we will re-notice all the abutters. We are doing this as it might matter to someone and this is the procedure in these matters.

Mr. Morel questioned whether he would be able to continue his business as usual until that time? (SM) assured him that he would be able to until the hearing. (SM) advised him that the Board would require a letter from the property owner noting that the application as filed is agreeable with them. This will need to be presented at the next hearing.

Mr. Morel explained that they currently live on the property and that it is his wife’s parents property. Mrs. Morel noted that they would bring the letter with them at the next hearing.

(EV) returned and was seated on the Board.

ITEM 4. Public Hearing with respect to an application for a Certificate
of Approval pursuant to RSA 236:114 for the location of a junkyard business, filed by James Snedeker, 629 Tilton Hill Road, Pittsfield,
NH 03261. The business would be located on a portion (90 ft. x 130 ft.)
of the property located at 629 Tilton Hill Road, Pittsfield, NH 03261
(Tax Map R-7, Lot 4B). The property is owned by James Snedeker and is located in the RURAL Zone.

(EV) I have read the hearing notice and what I am going to do is first explain what has occurred prior to this hearing. Concerns were brought forward regarding the noticing. It is an arguable position that we should redo the hearing so that all would be noticed properly.

When an individual applies for a junkyard license before the Zoning Board, we let the Board of Selectman know if it is okay in regard to the location and size. This hearing has nothing to do with licensing tonight. That is all up to the Board of Selectman. There have been letters received that it is an opposed use in a RURAL Zone and we have sought the advice of Town Counsel.

(CD) Motion to bring forward all information presented at previous hearings and read into tonight’s Minutes. (SM) Second. Carried 5-0.

(Please see attached for information brought forward tonight from previous hearings read into Minutes by Carol Dodge.)

Mrs. Snedeker questioned whether they would have to give their presentation again? She questioned what notification (EV) was addressing? (EV) explained that it was not a notice to abutters but rather the notification in the newspaper but that it was really immaterial now. Mrs. Snedeker noted that she was concerned because this has been going on since March 27th. (EV) This is being done per Town counsel recommendation. As discussed in March, nowhere in the Ordinance is there a provision for junkyard. This Board cannot grant an ordinance, which does not exist. This hearing will provide BOS with notification, if approved, that “Yes it is okay and the location suggested is okay and they will do what they want as far as the permit is concerned.”

Mrs. Snedeker noted that many people in Town deal with junk. There is junk in apartment buildings and we live about 3 ½ miles out of Town. We have made improvements on the site, put up a fence and cleaned up.

(EV) explained that Town votes ordinances in and when they are there, we have to abide by them. If we find any violations, Code Enforcement would pursue them.

Mrs. Snedeker noted that the reason they put in the variance to begin with was at the suggestion of Building Inspector who advised it would be a good idea and if we do not need one, why are we continuing with this proceeding?

(EV) noted that they are before the Board for a Certificate of Approval only. I am going to open this to the public. We will first hear from anyone that is in favor of it and who has not spoken before and then we will hear from those opposed who have not had the opportunity to speak previously.

Mr. Victor Hughes noted he has lived on Tilton Hill Road for 45 years. He noted that he knew Jim’s father who started there in 1963. “I do not see what the problem is. Five people on the Board voted before to give him the right to do this.” (EV) explained that the Board decides along with a 30-day appeal, but now this is a new hearing. Mrs. Snedeker wanted to be assured that this is not an appeal hearing. She was assured that it was not an appeal hearing. Mrs. Snedeker, since this is not an appeal hearing, Mr. and Mrs. Richardson’s letter should not be a part of this? (EV) explained that it is part of the previous files on this.

Jim Pritchard questioned, “The Board granted a Motion for Rehearing. What about that?” (EV) We granted a Motion for Rehearing but because of the validity of the posting, Town counsel has recommended we proceed this way. (SM) We granted the motion but never heard it. Jim Pritchard, “What about the hearing that was already granted?” (SM) Based on Town counsel recommendation, there will not be a rehearing. Mrs. Snedeker, “How can the appeal letter be part of the process?” (CD) “It is part of the file.”
(EV) “Any items that come out in this rehearing, please feel free to bring them forward.” Jim Pritchard, “Since you are not rehearing the Motion, what happens to the decision when the motion was made” What happens to that decision?” (EV) “That decision is null and void.” Jim Pritchard, “So it has been vacated.” (EV) “Yes, per Town counsel.” Mr. Topouzoglou noted to Board, “Rules come from the State, you are the people, follow the rules.” If you can find a solution, you do it. The junkyard is 90 ft. x 130 ft.

(EV) noted that the Board would now hear from those opposed to this.

Diane Richardson noted that she was part owner of Roy’s Auto Salvage relating that they had been there over 13 years. “I know John and his family. The problem we have – What has he been doing all along with no permit? There is junk all over the property and he is not doing it the way he is supposed to do it. When we came to get our permit, we had a hard time. We’ve come a long way with doing things the right way. We are proud of what we have done. I do not like to see batteries, motors, and other scrap on the ground. These should be taken care of properly. We do things the right way, what does this say to us.”

“If you are just grandfathering this in, I do not understand how it came before this Board. A lot of people have junk lying around illegally. Does it make it right the way he is doing it? There are a lot of people who have so much junk in their yards and no one says anything.”

(EV) explained that the issue is the Zoning Board is not a policing board. Whether he was properly licensed is not our issue. We address whether it is an acceptable location according to our Ordinances. If it was there before the Ordinance, it was there. We do not decide whether they do things properly. We decide if it is acceptable under our Ordinances. Yes, I have a concern regarding pollution, but that is not before this Board. Mrs. Richardson questioned, “What happened when zoning came in. Why did it not happen then?” (SM) “We had no Building Inspector. We had one for a number of years but not that long ago and people came in for permits. I was not on the Board when you and your husband opened the junkyard. I know you had a difficult time and had your attorney demonstrate that you were grandfathered.”

Jim Pritchard, “Is the issue of grandfathering properly before this Board?” (SM) “No, I would not say that. I recalled when the Richardson’s were before the Board of Selectman. Mr. Snedeker is here now for Certificate of Approval and we are to decide if it is permitted under the Zoning Ordinances and whether he is grandfathered.” Jim Pritchard, “Are you saying that grandfathering is properly before this Board? Is that a Yes?” (SM) “Okay, it is a yes.”

Dan Schroth noted that he has been dealing with Jim Snedeker since the early ‘90’s. “I think we should think about changing the Ordinances. More individuals are going to be having independent operations in the future. Get used to it. Do not take this right away from us. People want to use their land for the best use of the owner. He does not tell his neighbors how to use their land.”

Carole Richardson, “I believe we are not discussing what we should be discussing tonight.” (EV) “I discussed your letter of August 8th with Town counsel, and she does not agree with you.” Ms. Richardson questioned whether he had read RSA 236:114? Could you read it.?” Jim Pritchard suggested reading 236:114 and 115. (Carole Richardson read Statutes to the audience.) Ms. Richardson noted, “We need to stay on track here. You people do not know what you are talking about and the Zoning Ordinances in Pittsfield.” Jim Pritchard noted and read into Minutes RSA concerning application for license and Certificate of Approval noting that it should be made in writing to the governing body. “I would not think you have any business talking about this.” Whether or not he is grandfathered is a separate issue. All that you are doing is contrary to the language and goes against State Statutes.

Eileen Legg related, “I am extremely disappointed in some of you for not following the RSA’s. When I explained the situation to some people in Hopkinton, they laughed stating that the whole community is a junkyard. People cannot sell here because of the reputation of the Town.” Your job is to see that the community is protected. If someone wanted to buy downtown and put in a pig farm, would that be okay? In a rural community, they expect those kind of activities to go on. That is why you have zones and restrictions, to protect community. The Town suffers, the school suffers and your decisions are important. It is for the whole Town. Many people here are concerned. Open your eyes and say that you do not think this is best for the Town. You should be calling this recycling, it sounds much better. We have enough of that in Town. “It is sad what you people are doing to the Town.”

(EV) Just because we have so many people here, it does not necessarily mean we follow them. We have to follow the rules and we are following the recommendations of Town counsel. We do not make things up as we go along. Speaking against it does not mean they will not be getting it. We have not yet made a final decision.

Mrs. Legg, “Don’t you look at the abutter and consider their thoughts? Why do you contact them then?” (EV) All can speak. If you are an abutter, we still have to go by the rules and regulations. We have contacted Town counsel and we can go by their suggestions. We have done our homework on each and every item brought up. We have to consider what is here and what is in Zoning Ordinances and decide accordingly. Town counsel has to defend it. Jim Pritchard, “Are you suggesting because Town counsel said it that you should be doing what Town counsel says?” (EV) “No, that is not what I said. We got Town Counsel opinion and we make the decision.” Jim Pritchard, “I thought you said you were following Town counsel’s advice.”

Barbara Lee (?) questioned, ‘Why is the process different now than twelve years ago? The Richardson’s did not go before the Zoning Board. Has the Town changed so much? Should this be before the Board of Selectman instead of the ZB? I am not asking about the prior process, but am asking for this process.” (CD) The Richardson’s were already licensed and were transferring license to different location. (EV) License is not passed on owner to owner. Tom Hitchcock, “As far as grandfathering is concerned, it has to be done within a year after.” (EV) If it lapses for a year.
Tom Hitchcock, “This is not a grandfathering hearing.” (SM) No, this is for a Certificate of Approval.

Paula Belliveau, “We are in a Rural Zone and junkyard is illegal in Rural Zone. You need to give them a variance and should not be talking about grandfathering and determine if they are performing business illegally.” (EV) It is the use and when it started. Mr. Belliveau, “If it is restricted, what is your purpose?” (SM) Think of it as a non-forming use, a pre-existing non-conforming use. Perhaps, that will make it clearer. Mrs. Bealliveau noted that it has taken the Snedeker’s twenty years to come forward.

Mrs. Snedeker related that everyone was talking about this. It was my father-in-law’s business. It was going on then and it was not licensed. All are complaining that it is not licensed. It is not, but we are trying to do that. We are trying our best to go through the process. If it were licensed, some would still be opposed. (EV) License has nothing to do with this hearing. It is not an issue before the Board tonight. Mrs. Snedeker, “We are trying to get the license part.” Mr. Snedeker, “One other thing. The yard has been there since the early 1960’s and only abutter was Carole Richardson there for some years. All of a sudden, she is opposed. They knew when they bought the house the junkyard was going on there then. (EV) “It is their right to speak to this. You have to look at the whole process.” Mr. Snedeker, “No one said anything until I brought it up before the Board.” Mr. Snedeker noted, “Did anyone come and talk to me about it?”

(EV) If we say this is not appropriate, they cannot issue the license. Tom Hitchcock, “People should be able to run their own businesses. RSA’s say if it is a hardship there can be an exception. It has been there for so long.” Mr. Richardson noted, “You have listened to all opinions. A lot of people are against it, and that should have some bearing on it. (EV) It can have some bearing on it. Dan Schroth, “I would not trade our property rights because of Pittsfield’s reputation. I live here for my freedom, not the Town’s reputation.”

Jim Pritchard, “RSA’s not the Board of Selectman should enforce what is determined by ZBA. The Board fails to follow the law. You believe you have jurisdiction over grandfathering, but what gives you original jurisdiction to determine grandfathering? Are you going to answer?”
(EV) “No. I am asking now if anyone else would like to speak?”

Bob Legg, “Jim’s comment that he has improved the area and that it is hidden in the woods is noted. However, you can see the fence, there are cars on another lot and parked on the shoulder of the road. His expansion of the business is what is a concern. He has been expanding without a permit.”

Mrs. Snedeker, Sr. related “My husband did it for years and years. When he passed away, Jimmy took over.”

Mrs. Belliveau, “It is a public road and we pay taxes. Is it a legal function in a Rural Zone?” (EV) “That is true, but the law provides for a pre-existing use.” Mrs. Belliveau questioned why he did not apply for a variance?
(EV) Mr. Snedeker chose not to.

Mrs. Legg, “In the RSA’s, for it to be grandfathered, it has to be a pre-existing business but lawful. This is not lawful. I am confused on this issue.” Mr. Snedeker noted, “My business is registered with the State. I pay taxes. That should be proof that it is a legal business.” Many individuals were speaking at once and it is difficult to decipher author, but question was asked, “Is he taxed as a junkyard and if not, would it change if he was a junkyard?”

Mrs. Snedeker, “We are trying to make a living, pay our mortgage and pay our bills. We are trying to go through the procedure and follow the legal steps we need to take.”

Close Public Input

(EV) Does the Board have any questions or comments? (None.) Does the Building Inspector have any questions or comments? (None.)

(CD) I have read RSA 236:114 top to bottom and grandfathering clauses more than once. I think we followed procedures. My interpretation is that the Zoning Board are the interpreters a lot of times. Why do we send letters to abutters? It is so people know what is going on. I think we got a lot of things hashed out.

(SM) “Mrs. Richardson, do you have any documentation that the Snedekers did not have a junkyard there prior to the 1988 Zoning Ordinances?” Mrs. Richardson, “Only my eyes. No documentation.”

(LF) “I’ve done a lot of reading on this and I know we all have done a lot of reading of the RSA’s. In my mind, it is a legal non-conforming business. Whether he is licensed or not, is not material tonight.”

(PM) “I agree it is non-conforming, pre-existing. I have done business with his father. It has been there so long. He has complied. We have asked him to clean up the site, which he did. Way back, his father did not know that he had to have a license. It was “Live Free or Die.”

(SM) The Board has reviewed the records of the previous hearing and has motioned to bring forward all the information present at the previous hearings. The Board has also listened to the statements from abutters and other hearing participants. The Board has reviewed the application for a Certificate of Approval pursuant to RSA 236:114 for the location of a junkyard business filed by James Snedeker on a portion of his property
(90 ft. x 130 ft.) at 629 Tilton Hill Road, Pittsfield, NH (Tax Map R-7,
Lot 4B). The ZBA finds that the junkyard is not a permitted use under the Zoning Ordinances in the Rural Zone. However,

(SM) Motion The Board finds that the use lawfully existed prior to the adoption of the 1988 Zoning Ordinances and prior to the State law of 1965 governing such uses and that under said Zoning Ordinances, the use is allowed to continue as long as it remains otherwise lawful and subject to the provisions of Article 4.3 of the Pittsfield Zoning Ordinances. Certificate of Approval is granted for a location of junkyard as noted in the application. (CD) Second. Carried 5-0.

(PM) “Is there any way we can require him not to park vehicles on the road as there is quite a bit of objection to this?” Mr. Snedeker explained that most of the vehicles are on his truck and his truck is parked on the street. Mrs. Snedeker explained that they are unable to widen their driveway due to wetlands issues on the sides of their driveway and that the family cars and the truck cannot both be parked in the driveway due to size.

(EV) The location has been approved and the thirty-day appeal process will start at this time. We will forward the Certificate of Approval to the Board of Selectman and then it will be noticed accordingly and anyone can come in and discuss with BOS. However, BOS will not act on this as an appeal. The BOS will make determination of licensing and may put stipulations on at that time.

Hearing ended at 8:30 P.M.

ITEM 6. New Business

(EV) informed Board of upcoming workshop on October 25th.

ITEM 7. Members Concerns

(PM) noted that Board should have had representation of counsel here tonight. Board should not have had to go through all these deliberations. When it is a difficult situation such as this, we should let the attorney be present. Board had to go through a little too much.

ITEM 8. Public Input

Jim Pritchard, “This junkyard has been operating without a license. Why does he need to get one now? It is not a requirement.” (EV) explained that license is a separate issue.

Carol Richardson, “Could Mrs. Snedeker’s comments regarding the driveway and wetlands be included in the Minutes?” (Affirmative.)

Mr. Topouzoglou addressed Board noting “If you take the job, you have to do the job by the book and not play games. If you cannot do the job, then get out. Something is wrong here.”

Close Public Input

ITEM 9. Adjournment

(LF) Motion to Adjourn. (CD) Second. Carried 5-0.

Meeting adjourned at 9:12 P.M.

Approved: September 11, 2008

_______________________________ ____________________
Ed Vien, Chairman Date