October 14, 2004 Minutes

Pittsfield Zoning Board

Pittsfield, NH 03263
Minutes of Public Meeting

October 14, 2004

Chairman Elliott called to the meeting to order at 7:05 pm.

Members in Attendance:
Roll Call was taken. Robert Elliott (RE), Chair, Susan Muenzinger (SM), Robert Lincoln (RL), Vice chair, Paul Metcalf (PM), Ed Vien (EV), were present. Also present was Judith Burrows, Alternate.

Item three a on agenda: Public Hearing: Application for a Special Exception filed by Keath Wood of 275 Shaw Road to allow a kennel in the Rural Zone. (Tax Map R-3 -Lot 5-E) Pittsfield, NH 03263

(RE) There were questions at the last meeting how this application shall be considered, a home occupation or a kennel. We had deliberations at our work session and still had not determined what consideration he needed.

Paul Vince (abutter) – requests to put microphones on table and request is granted.

Mike McGill (present) submitted a letter of testimony against Mr. Wood and is asked to proceed. The letter was not accepted previously as testimony as it was not signed or certified and was considered hearsay.

(RL) He needs to give names of the people mentioned in the letter so we can verify.

M. McGill: There is a Concord Hospital employee that boarded with him 7 or 8 years ago named Wes Reed, he lives in Loudon.

(RL) Were you in this property then?

Wood: No, eight years ago was the other residence.

M. McGill: St.Paul’s employee Parker Chase boarded his dog Buck with Wood 6 to 7 years ago. He is still employed at St. Paul’s. There were members of a local Retriever Club that would board their dogs with him for 2-4 weeks at a time. One gentleman’s name was Ken Morey (deceased) from Brentwood 5 or 6 years ago. I personally bred my dog, Storm, with one of his dogs 3 years ago for the sole purpose of profit for him. He has bred with other members of the Granite State Hunting Retriever club; members name is Sean Kilhaney approximately 2 ½ years ago.

1.

(RE) Were dogs boarded overnight?

McGill: According to lines 1,2,and 3 on letter, yes.

(RL) All of this testimony applies to the other premises, correct?

McGill: Yes. Exception being line 5 on letter.

Wood: I did board and train 8 years ago. He is only here because we had a sour breeding problem. He is trying to blackball me.

(RE) Stop. Are you breeding now?

Wood: Not now.

(RE) Board questions?

(RL) Eight years ago has nothing to do with now.

(EV) Sounds like home occupation.

Board agrees.

(SM) Do dogs stay overnight on any occasion?

Wood No, One hour of training and then they leave. I do four to five per week.

(SM) Ref: kennel and home occupation definitions.

Doug Keane (abutter): Objects to barking dogs. I chose to live here because of the quietness.

(EV) Asks applicant for an explanation of his training.

Wood: I grab a few birds and I do blank gun shooting for an hour or so with the dog. If it rains, they do not come. It is 4 to 5 people a week-mostly done during hunting season.

Don Williams (abutter): I think it is a good training item for my horses. They hear the shots and it teaches them indirectly not to get spooked.

Discussion on low intensity type of use, the primary actions occurring in the home, the range of shooting, and the use of live ammunition and range of ammunition. Based on the definition of kennel, the Board agrees that Wood does not qualify under kennel.

2.

(RE) Lets deliberate on the Home Occupation Special Exception

Criteria:
A: The site is an appropriate location for the proposed use because:

(SM) The house is set back from the road, there is adequate parking, the property is large at 53 acres. I believe it is appropriate.

Vote: 5-0 passes.

B: The proposal will not be detrimental, injurious, obnoxious, or offensive to the neighborhood and will not diminish surrounding property values because:

(RL) There is a swamp in back-no harm there.

(SM) I did not know it was there; it is mostly out of the home and the backland of property.

Vote: 5-0 Passes

C: There will be no undue nuisance or serious hazard to pedestrian or vehicular traffic, including the design and location of access ways and off-street parking because:

(SM) There is a long driveway, plenty of space for parking, and site distance is not a problem.

Vote: 5-0 Passes

D: Adequate and appropriate facilities and utilities will be provided to insure proper operation of proposed use of structure because:

(RL) The land covers that.

Vote: 5-0 Passes

E: The proposed use or structure is consistent with the spirit of the town’s Zoning ordinance and the intent of the town’s Master plan because:

(SM) Both uses, kennel, and home occupation are allowed by Special Exception.

Vote: 5-0 Passes

3.

(RL) Motions to grant the Special Exception as a home occupation business with the condition that he not board dogs overnight.

(PM) Seconds motion

Motion carries 4-0

(RE) Explains thirty-day appeal process.

Break 7:45 to 7:47pm

Item three b on agenda: Public Hearing with respect to a Rehearing of Special Exception denial filed by Nancy Bates and Anthony ReSavage Jr. of 39 Range Road to allow a kennel in a Rural zone at 39 Range Road (Tax Map R-2 Lot 5) Pittsfield, New Hampshire 03263

(RE) Explains procedure to applicant re: new info to be presented.

Attorney Donald Gartrell asks to be recognized for the record that is here at the request of Paul Vince (abutter) and other neighbors who are against the kennel. Addresses new submissions by applicant at this meeting- refers to RSA 677:2 and interpretation of Supreme Court. Applicant must submit evidence that could have been submitted at earlier hearing, according to Attorney Gartrell’s statements. The issue is what are the errors allegedly made by the Board that the applicant feels the decision should be reversed. The applicant must prove that the actions made by this Board at the original hearing are unreasonable or unlawful, according to Attorney Gartrell’s interpretations. The applicant’s burden of proof has not changed.

(RE) Requests written document for the Town Attorney to look at.

(PM) States he is uncomfortable with this hearing without additional info.

(SM) Nancy Bates provided the Board with a letter on August 20, 2004, which outlined the basis for her request for a rehearing and enumerated the five criteria and stated things where she thought the Board had been misled. So, what you are saying is that anything she hands to us that is new information that does not address these particular items where the Board is in error is not admissible? Bates had submitted new info on sound and on impact. If we proceed and it is my understanding that you are saying we cannot, I do not understand what the basis for our discussion of sound information would be in the context of additional information.

Attorney Gartrell makes point that the Board made a decision based on the evidence the applicant and others directly affected brought their attention and the decision that four out of five criteria for Special Exception were not met.

4.

Attorney Gartrell believes everything was replayed from original hearing and that there was no new information presented and if there was anything new, wants to know why it was not presented at the original hearing-references statute and requirements.

(SM) Were we in error for granting rehearing?

Attny. Gartrell: No, it was your discretion. But it seems like we are going back to square one.

Discussion Re: New admissions from applicant and the fact that an acoustic engineer was consulted, not hired, so he wishes to remain unidentified. (RL) feels that information should not be accepted. Attorney reiterates that the decision for rehearing has to be that based on the evidence put before you originally, you made the wrong decision.

(HF) If the Board did not want to take his word for things, he did not want to work for the Board.

Audience applauses

(SM) We have two alternatives: continue this until we talk to town attorney or proceed and do a review of the new information.

(RL) Requests to be present at the question asking session with the town attorney.

(RE) According to Attorney Gartrell, we are to limit the scope of rehearing.

Attorney Gartrell: The rehearing needs to be confined to what the law says and that is not a replay of the whole thing. This is gratuitous and it would be best to talk to Attorney Bates.

(RE) Generally, when we have a rehearing, we try to focus on new info and that is the primary reason that we are meeting…that there is new information. From what I hear you say, that is not allowed, and that is contrary to what I understood as to how we as a Board are supposed to operate. We need to talk to our attorney to clarify.

(EV) Agrees.

(SM) Are you saying that one of the reasons for a rehearing is not new information presented on the issue?

Attorney Gartrell: I do not know if it is new information or not. What is the reason it was not submitted the first time?

(SM) It was not available.

5.

Attorney Gartrell: That is not an entrée of reopening the case because the applicant was not prepared and could have produced it at the original hearing.

(RE) I respectfully disagree; we are here to help our townspeople. You are taking very stringent interpretation of the zoning ordinance and I am not sure it is keeping with the spirit of what our zoning is all about. I would like to talk to our Attorney, as you do represent the opposition’s perspective.

Attorney Gartrell welcomes the idea.

Meeting with Pittsfield’s town attorney to be set for October 18, or 25, 2004.

(HF) Will notify those living out of state.

Larry Federhen: One of the major reasons that she was granted the rehearing was that she was going to produce more soundproofing information if you go back to the July 22, 2004, minutes of the hearing, it was conceded that the building would be soundproofed. It is in the minutes, so I do not know how producing any more info on soundproofing is going to make the building any more soundproof than it already is.

(RE) Well, it is clear from the packet that there is new information to be presented.

(PM) I think it should be postponed, as I just received my packet today.

Larry Federhen: She has already admitted that the building is going to be soundproofed at the hearing and it is in the minutes of the July 22, 2004 hearing.

(RE) So are we all in agreement that they are satisfied that there is going to be no problem with sound?

Larry Federhen: That is what it says in the minutes. We are satisfied that the building is going to be soundproofed, we are not satisfied that there is not going to be any noise. We are satisfied that the building is going to be soundproofed. She said she was going to submit more sound info for the building, and it seems really irrelevant and redundant at this point.

(RE) I understand what you are saying, I am not sure I agree with you.

(HF) The Board requested additional information.

(RE) The issue, Mr. Federhen, is the fact that she is going to be disturbing the neighbors, that is one of the issues you raised, and if the applicant can show there will be no noise then that would have some bearing on your considerations as a neighbor, so I think it is relevant. The opposing attorney will send documents to our attorney.

6.

S. Greenlaw asks what he should be prepared to discuss at the next meeting.

(SM) Motions to continue hearing until November 10, 2004, after discussions with town attorney.

.

(RL) Seconds motion.

4-0 Motion carries

Break called at 8:22. Return to order at 8:30pm

Item three c on agenda: Public Hearing with respect to an application for a Special Exception filed by Robert and Sharon McKechnie of 561 Suncook Valley Highway in Epsom for a Multi-Family Unit in the Urban Zone at 29 Manchester St. (Tax Map U-1 Lot 47) Pittsfield, New Hampshire 03263

(HF) It is an existing four unit building with one unit occupied by the owner. Mr. McKechnie is the new owner and does not want to live there. If the Board does not need to hear this, I can do the rest administratively. Ref: HSA in town refers to owners unit and three rentals. If the Board does not address this, he cannot rent out the “owner’s unit” without a Special Exception.

B. Pelligri (abutter): It needs to be addressed –this whole back row, we are all abutters.

R. McKechnie: The realtors had no idea it was an owner occupied building. The previous owner had it rented out for years. I bought it assuming it was a four family and found out after it was not.

(RL) Do we have authority to hear this?

(HF) Refers Board to Table two in Zoning ordinance. It was there before he bought it.

B. Pelligri: I am not against Mr. McKechnie I just want to find out what is going on. Application is confusing. It was a single family once. I spoke with the listing agent and it was advertised as a four-unit property. I am sure Mr. McKechnie is concerned with the safety of the building.

(RE) That is a different issue- not within our jurisdiction.

Discussion re: site plan for parking.

(RL) Let’s help him. He bought something and got another. The unit is there. It does not make sense that he cannot rent out a unit.

7.

Mr. McKechnie: (addressing abutters) I am not someone who just buys properties and just lets them go. We take care of our properties and the people that live in them. If they do not conform to safety, if they are a hassle to neighbors, they are gone. I do not play games with those kinds of people. We are good property owners and take care of our properties. I know I have my work cut out for me on this building.

McKechnie (cont’d) I have to replace windows, hardwire smoke alarms, the furnace is being shut down completely, it is all going to gas. We are long termers.

B. Pelligri: We have had a history with the tenants there for the past four years, it has been horrendous and I was hoping the Police Chief would be here to give you a rundown of some of the calls that have been at that property over the past few years.

McKechnie: I can understand your concerns. I have addressed the parking with one of the residents because it presents a safety issue for police and fire. If he parks there again, he is gone.

(RE) The dialogue with the owner and the abutters is good.

Discussion on how many apartments in town are licensed (658).

Mr. McKechnie offers abutters home phone number in case of any problems.

T. Riel (abutter): Questions if there is a law that requires so much footage per person in an apartment.

(HF) There is an HSA requirement, not a law, for the number of people in an apartment it is difficult to identify unless I can identify beds all over the place when I go to do the inspection. If you are aware of a case like that write me a letter and I will address it.

(PM) In Hank’s defense, some people say that extra people are just visiting.

(RE) Are we going to hear this as an Exception?

(RL) I think we should hear this.

(SM) I am not convinced he needs the Special Exception, but if the Board feels we need to hear it, let’s hear it.

(RE) I am not sure either; there are four units there, no sense in leaving one apartment vacant.

8.

Discussion on in-law apartments. Every in-law apartment has a condition it cannot be rented out; only this Board can lift that – different case altogether- still single-family accessory use. This building is multi usage.

(HF) Asks crowd when building was single family.

Crowd: 1986

(HF) Pre-existing 1988 zoning. We are cleaning up a paper trail at the town hall.

Bill Miskoe (BM): Real estate error.

McKechnie: Is it grandfathered?

(HF) It is an owner occupied building with three rental units.

Scott Brown has concerns about the application not being filled out properly.

(HF) Clarifies that he made the error.

(RL) Hear it or pass to Planning Board.

(HF) The Planning Board has no authority to hear this issue.

Addresses issue from abutters on parking.

Scott Brown: Trying to see precedent-any place that is owner occupied, you are saying that that portion can be rented out without coming before this Board?

(RE) Each case is addressed on its own merits. RSA states such.

(SM) He makes a good point, we should hear it. I am changing my opinion; it should be dealt with as a Special Exception.

(BM) Tim Bates says that your Board is not setting precedent when it does something. In the eyes of the people of this town, if you do for one and do not do for another, you have set a precedent. Legally, maybe no, but you’ll have set one defacto.

McKechnie asks difference between owner occupied and a four family. (SM) explains absentee landlord.

Board decides to hear Special Exception

Closed to public 9:11pm

9.

Criteria A: The specific site is an appropriate location for the proposed use or structure:

(RL) No question about that

All agree.

Criteria B: The proposal will not be detrimental, injurious, obnoxious or offensive to the neighborhood and will not diminish the value of the surrounding properties:

(RE) Good dialogue between owner and residential abutters.

All agree.

Criteria C: There will be no undue nuisance or serious hazard to pedestrian or vehicular traffic, including the location and design of access ways and off street parking because:

(SM) He says he has dedicated off street parking for all units. One unit one space?

McKechnie: I want to say yes, but I do not like it. I need to sit down with Hank and address some of this.

(RL) You have the area for the parking, though.

All agree.

Criteria D: Adequate and appropriate facilities and utilities will be provided to insure the proper operation of the proposed use or structure because:

(SM) The building inspector will make sure adequate facilities are available.

(RE) Sounds like the owner is committed.

All agree.

Criteria E: The proposed use or structure is consistent with the town’s Zoning Ordinance and the intent of the town’s Master Plan because:

(RE) he is continuing the use that has already been there.

All agree.

10.

(SM) Motions to approve Special Exception with the condition that the parking situation is worked out and is to the satisfaction of the building inspector and the abutters.

(RL) Seconds motion.

4-0 Motion carries

(RE) Explains thirty-day appeal process.

Item three d on agenda: To consider a motion for rehearing with respect to an application for Appeal of Administrative Decision filed by John Lenaerts of 520 Clough Road, Pittsfield, New Hampshire 03263. Property location is 111 Winant Road (Tax Map R14-Lot 4) Pittsfield, New Hampshire

(RE) Steps down as he it is his property. (SM) Steps in as Chair.

Judy Burrows cannot sit, as she is a resident of the development “Winsunvale”

It is explained to applicant that there is not a full Board present.

J.Lamson: The consideration of the full Board is not necessary for the hearing of the motion.

(SM) Let’s check with the town attorney and ask Mr. Lenaerts if he wants the full Board or if he is happy with the four of us.

J. Lenaerts: First of all I would like to address your Town Administrator who sat there and said absolutely not that Ms. Burrows cannot be seated.

(SM) She lives in Winsunvale.

J.Lenaerts: It is not up to the Administrator to tell her to recuse herself.

J. Lamson: Explains that she was noticed and spoke at the original hearing as an abutter.

Judy Burrows was asked directly if she felt comfortable and she did not.

J. Lenaerts does not feel comfortable with a four member Board and may consult an attorney. He asks for a continuance.

(RL) Motions to continue hearing until November 10, 2004, at request of applicant due to the fact he is not comfortable with a four member Board.

(PM) Seconds Motion.

11.

3-0 Motion Carries

J. Lamson states the Board may have another Alternate by November 10, 2004

Item three e on agenda: To consider a motion for a Rehearing with respect to an Application of appeal of Administrative Decision filed by Pauline Dodge of 80 Will Smith Road Pittsfield, New Hampshire 03263 Property location is 212 Tilton Hill Road (Tax Map R14- Lot 4) Pittsfield, New Hampshire 03263

Attorney Sullivan asks if there is anything new addressed.

(RL) they are saying we are in error and that they can prove this. We have to decide whether we erred or not. Did we?

(EV) Our decision was justified according to town counsel.

(PM) Let’s hold off until we consult town counsel.

(RL) I am not sure there is new evidence, they are saying we erred. This is over my head. Let it be on the record that I think this needs to go before a judge.

(SM) There is no new information.

(EV) Motions to deny rehearing, as there is no new information and the Board did not err in their decision.

(SM) Seconds motion.

5-0 Motion Carries

Item four on agenda: Review minutes of September 23, and September 30, 2004

Corrections to pages 2,5,and 6 for September 23, 2004

(SM) Motions to approve minutes for September 23,2004 as amended.

(PM) Seconds motion.

Language added on how letter arrived on page one and amendment that the letter from the Animal Control Officer was not referred to on September 29,2004 minutes.

(EV) Motion to approve September 29, 2004 minutes as amended.

12.

(PM) Seconds motion.

Item five on agenda: Members Concerns

None

Item six on agenda: Adjournment

(SM) Motions to adjourn

(PM) Seconds motion

Adjournment 9:50pm