September 29, 2004 Minutes

Pittsfield Zoning Board

Pittsfield, NH 03263
Minutes of Public Meeting

September 29, 2004

Chairman Elliott called to the meeting to order at 7:06 pm.

Members in Attendance:
Roll Call was taken. Robert Elliott (RE), Chair, Susan Muenzinger (SM), Paul Metcalf (PM), and Ed Vien (EV), were present. Member, Robert Lincoln (RL), and Alternates, Judith Burrows (JB), and Glenn Porter (GP) were absent. Staff present: Hank FitzGerald (HF).

Item Three 1 on agenda:

Consideration of the Boccia area variance requirements:

(RE) stated that the information the Town Administrator had provided laid out the issue for the Board quite clearly. He suggested making a worksheet laying out the procedures for the two types of variances. (RE) asked the other members for their thoughts. (SM) asked if they were going to amend the Zoning Ordinance to include these points. (RE) stated it should be done. He then asked if the Board had a problem following the new criteria in the interim. The other Board members did not have a problem with this.

(SM) motioned that the Board use the Boccia criteria on future area variance applications until the Zoning Ordinance is amended to include them.

(EV) seconded.

Vote: 4-0 Motion Carries

(SM) asked if the Town Administrator would be preparing a worksheet for the Board to use with the two sets of variance criteria. (RE) stated yes. (SM) stated that the application form should be amended to include the different criteria as well. (SM) asked if everyone knew what the difference was between area variances and use variances. (RE) explained the difference between them.

Item Three 2 on agenda:
Discussion of what Zoning category the Keath Wood business falls under:

(RE) stated that the Board needed to decide what Springvale Kennel was and whether or not Mr. Wood even needed to come before the Board. He asked the Board if they had read the letter from Mr. McGill. (SM) asked where Mr. Wood was because she wanted to ask him questions about this letter. (HF) explained to the Board that the letter was given to (HF) while he was at Zoya’s on Sunday by Mr. McGill. Mr. McGill had heard about the application while working in town. (SM) stated that she would have felt better if the letter was signed. She wanted Mr. McGill present to answer questions about the letter as well.

(RE) stated that there was either a misunderstanding or something as the letter conflicted the testimony from the previous Board meeting. He had also heard from others that dogs were being boarded there. (HF) brought up the Animal Control Officer’s letter (see attachment A) and wanted to be certain that the Board reviewed it. He stated that Mr. McGill could be asked to attend the hearing on the 14th. The Board discussed the letter further. (EV) stated that if the first three points of the letter were correct then the business is a kennel and if they are incorrect then it would be a home occupation. (HF) related the site visit and the legal case so far regarding the Wood business. (SM) reviewed the definition of kennel and how it related to breeding. She reviewed the description of the business from Mr. Wood’s application and stated that it appears to be a low-impact business. (SM) felt that additional information was needed from Mr. Wood. (HF) stated that there were five outdoor kennel structures on the property.

(SM) pointed out that both Kennel and Home Occupation were allowed in the Rural Zone by Special Exceptions so the process would be the same for each application. (RE) asked if the Board felt that Mr. Wood needed to come before the Board. (SM) stated yes, it was clear that he needed a special exception for the business. (PM) agreed, especially given the letter. He said the letter contradicted the testimony from the previous meeting. (RE) stated that the Board can put people under oath and this could be done to resolve the disconnect between the application and the letter. He then stated that the Board should send a letter telling Mr. Wood that he does need to seek a Special Exception, although the Board cannot determine whether the Special Exception would be for a Kennel or a Home Business without further information. (RE) then asked (HF) to have Mr. McGill come in for the 14th. The Board decided to notice it as a Special Exception for a Kennel or Home Occupation and the Chairman will send a letter to Mr. Wood. The Board discussed how the letter should read and how the meeting should be arranged on the 14th before agreeing that the Wood application should be first on the agenda.

Item Three 3 on agenda:

F.Y.I. – The Revised Zoning Regulations:

(RE) informed the Board that the Revised Zoning Regulations would be available for pickup tomorrow and that there will be a Joint Meeting with the Planning Board on October 6th to discuss the changes. He asked that Robert Lincoln be made aware of this too.

(SM) asked about when the new information from Nancy Bates for her rehearing would be available for the Board members. (HF) stated that he would contact Nancy about the information.

(RE) agreed that the new information should be given in advance so that the Board could review it prior to the meeting. (SM) asked Nancy if this would be a problem. Nancy Bates stated that this would not be a problem.

(SM) Motion to adjourn. (EV) Second. 4-0 Motion Carries

Meeting adjourned 7:37 pm

Respectfully Submitted by Jeremiah Lamson, Town Administrator

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September 23, 2004

Chairman Elliott called to the meeting to order at 7:08 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. Alternate, Glenn Porter (GP) was absent, resigned by default. Also present was Judith Burrows, Alternate to be sworn in.

Public Hearing: Application for a Variance filed by Robert Tarantino of 129 Prescott Rd. to allow a two (2) lot subdivision at 7 Lyford Hill Rd. in the Light Industrial/ Commercial Zone. (Tax Map U-5-Lot 50) Pittsfield, NH 03263

(RE) Explains procedure for presentation to applicant.

Tarantino: I would like to separate the apartment house from the property that has the car wash and the office building. Existing use will remain unchanged. I need the variance because there are dimension problems on size. It is a mixed use with Commercial/ Light Industrial. There are similar uses in the neighborhood now. It is non- conforming; I do not see a reason to be denied because of dimensions. It won’t hurt the neighborhood, I am not expanding. The traffic coming into the commercial part interrupts the dwelling part. As far as the tax base-it would enhance property value. It has been in existence twenty years. If it were to be sold in the future, it would serve to benefit property values, because they would be separate. Any questions?

Open to public 7:20pm

(RE) Anyone for or against? No comments.

(SM) The property is 23,481 sq. ft. how large is the entire parcel?

(HF) .75 the existing lot is undersized.

(SM) So this is a pre-existing non-conforming lot. This lot you are creating would be .539, the lot with the car wash and the office building, and the other lot would be .211.

1.

Tarantino: I was planning on putting up a fence (points on map where fence will go)

(SM) In essence, you are asking for a variance because neither lot has frontage? The side has twenty-five feet.

(HF) Points out that the front, side, and rear have setback violations, but they are pre-existing (1988).

(SM) But the Light Industrial zones ask for front side and rear yards at twenty-five feet and you’re showing me that all three have the twenty-five feet.

(RE) Nothing changes.

(EV) Is there a driveway here now?

Tarantino: There was years back.

Would like to put in a drive, points out building, berm, four ample parking spots for the apartment, where the driveway would go, does not want people backing out into street for safety reasons.

(HF) This is subject to G. Bachelder’s approval.

(EV) Are we sure this is legal?

(HF) It is pre-existing; G. Bachelder would not want another driveway on Water St. He has sufficient turnaround on Lyford Hill.

(RE) (SM) brought out a case in Portsmouth for a variance in regard to area. The court distinguished a difference between use, and area variances. The court suggests we be more relaxed in our criteria when dealing with area situations. Let us keep that in mind. We need to set up a separate set of criteria for area. We have not done that yet.

J. Lamson brings in a copy of the case and (RE) suggests copies be made for all.

(RE) The court has instructed us to look at area variances more leniently.

There are two criteria items different from our zoning ordinances. We want to use the appropriate criteria. Any comments?

Break for five minutes at 7:25pm.

Meeting resumes at 7:34pm.

2.

(RL) We should stick with our regular criteria.

(JL) Suggests using new criteria the court recommends.

(RE) We do not have time to review them and decide how to apply them. It makes sense to be sure how to apply them. In the meantime, we could use the regular criteria because if we approve of it, then we know we would approve of it the other way. If not, then we could continue it to the next meeting.

Closed to public 7:36pm

Bates memo- Simplex Analysis-Use variance and Boccia Analysis-area variance

(SM) Let’s use these criteria first and then we can go back to the other.

Discussion on if the variance is needed. (SM) Recommends that it is because without adequate setbacks, he would need the variance in order to subdivide. (RL) Doesn’t see any other way and thinks it is unreasonable to ask him to sell the whole property. (PM) Agrees.

Boccia Analysis:

(RE) Is the variance needed to enable the applicants proposed use of the property, given the special conditions of the property?

(SM) I think it would be because it is a preexisting, non- conforming use. It is really small according to our Zoning Ordinance requirements. The buildings exist on a site without adequate setbacks according to zoning. The applicant needs a variance.

(RE) Can the benefit sought by the applicant be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance?

(RL) The only other way would be for the applicant to sell the entire property and I do not think that is reasonable.

(RE) So we have determined that he meets these criteria. Do we want to go forward with the other criteria?

(SM) Reads criteria under the Simplex analysis:

The zoning restriction, as applied, interferes with a landowner’s reasonable use of the property, considering the unique setting of the property in its environment
No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property.
The variance would not injure the public or private rights of others.
3.

A: No diminuation in value of surrounding properties will be suffered because:

(RL) Nothing changes- no effect

(RE) It may help.

B: Granting the variance would not be contrary to the public interest because:

(RL) Again, It was done before zoning. The apartment is not going to go away whether we grant it or not.

(SM) It doesn’t make a difference.

(PM) and (RE) agree.

F. Granting the variance would permit substantial justice to be done because:

(RL) He should be able to sell one and keep the other, which he cannot do now.

(RE) The appraisal value will go up and will benefit the town.

(SM) Agrees.

G: The proposed use is not contrary to the spirit of the ordinance because:

(SM) The spirit of the ordinance is to allow him to subdivide the property.

(RE) The use isn’t changing.

(RL) Motion to grant variance to 7 Leavitt Rd. (Tax Lot U5-50).

(PM) Seconds motion.

4-0 Motion carries

(RE) Explains the thirty-day appeal process

(HF) He still has to go back to the Planning board.

(RE) He is granted a variance for area, setbacks, and frontage.

Public Hearing with respect to an 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, New Hampshire 03263

4.

(RE) Explains procedure to applicant.

Applicant K. Wood: We want to withdraw. We do not have a kennel, we do not board dogs, and I train dogs outdoors, so I don’t even know if that falls under home occupation.

(RE) Do you keep the dogs overnight?

K. Wood: No, one hour, so it’s not really under “kennel” and I am not sure if it is a home occupation.

(HF) Introduces ad from the “Hawkeye Journal” that has an ad under Springwood Kennels (owner K. Wood) with pups for sale. Clearly defined as Labs and Spaniels for sale.

K. Wood: Kennel does not mean boarding; it is a name I have used for years. It is confusing to me; I am not here for a kennel.

(RE) Did you fill out this application?

K. Wood: Yes, and I clearly wrote no kennel.

(SM) Part of the reason it was advertised as a kennel is because at the September 8, 2004, meeting, J. Lamson asked how it should be advertised and I said kennel. Without looking at the application and the particulars I believed it was a kennel, I erred and jumped to the conclusion that it was a kennel. Refers to definition of kennel in the zoning ordinances. Do you breed dogs?

K. Wood: I breed my own dogs.

(SM) How often?

K. Wood: Not very often, maybe once a year.

(SM) How many dogs do you have?

K.Wood: I have four, but only one can be bred. It is more of a hobby and it is done in the house. I have had three, no two litters at a time.

(RE) Sounds like a home occupation.

(SM) Refers to home occupation definition. Does the Board think it is a home occupation?

(HF) It may fall under a business dwelling.

5.

(RL) It is not an existing kennel if there is only one litter a year. It also does not seem to be a home occupation.

(SM) That is only one element; he is also training the dogs as well. There is another example of Special exception- it is defined as a combined dwelling and business.

(RL) Do customers ever enter your house with dogs or to sign papers or anything?

K.Wood: No everything is done over the phone or outside.

(SM) It is a business, he gets paid for training.

(RE) Let’s take a look at this and table it.

(HF) He also has a radio ad on WOKQ and his wife was deceptive in her statements to the Animal Control Officer and me. He had ten days to file the application and came in fifteen days later because I executed the zoning violation form with the court. I told him how to avoid that and I would rescind the order.

K. Wood: They came to my house and saw it was not a boarding kennel. I have used that name for years. It is just a name.

(SM) I do not have a problem with the word “kennel”, but you do have a business there. I am curious why you did not come before us before.

K. Wood: I have done this for eight years. I have come in here and asked what I had to do for a kennel and they said nothing. Can I withdraw and then open it up…

(RE) You can withdraw without prejudice and come back. We want to help, you have paid the fees. We could table it.

(HF) I would rather him not withdraw so he doesn’t have to pay more money.

Next hearing date is October 14, 2004.

(SM) Seems like nothing in his application is going to change.

(JL) Date certain October 14, 2004.

(RE) If we come to the conclusion that there is nothing for him to apply for, we can close it.

Larry Federhen: For clarification purposes, what determines whether someone needs a special exception for a home occupation. It seems like there is a lot of areas in town where people are operating out of their houses and I do not know if they have had exceptions or not.

6.

(RE) we do not have those people in front of us now, we have this situation and we have to deal with it in some manner that puts it to rest.

D. Keeley: Is there a rule running that addresses someone running something out of his or her house.

(SM) There is a zoning ordinance and what uses are allowed in what zones and also if the Board’s interpretation of use matches up.

Discussion on if anyone running a business in a Residential Zone should have a special exception or not. Referred back to ordinances.

(RE) The best thing would be to continue this and give us a chance to look at the zoning again, just to be sure.

M. Emerson: Ref: Bates case, which cannot be answered at this time and asked how much land he has, which is 53.7 acres.

R. Laroche: addresses concern that the notification was regarding a different map and lot number – notice R39 Lot 16- today’s notice of public hearing as R3 Lot 5-E.

(SM) Correct address, wrong tax lot.

R. Laroche: We did we receive wrong notification?

(JL) It was corrected before tonight’s meeting.

R. Laroche: You said we were going to be re-notified.

(JL) No, I said I would get a corrected notice out.

P. Vince asks question on notice of violation.

(RE) Explains issue of Mr. Wood’s business and how it may fit into our zoning regulations.

P. Vince inquires about Mr. Wood’s fee being refunded if it turns out he doesn’t need anything from the Zoning Board.

(SM) No.

(RE) Wood made the application he does not get the fee back.

A.Bissonnette: Is that conservation land?

7.

Wood: No, current use.

(RE) Closes discussion, continues hearing until October 14, 2004, in the meantime the Board will deliberate whether or not there is anything to continue on. Everyone agree?

All agree.

Item four on agenda: Review of September 8, 2004, minutes

(RE) Correction on pages seven and ten.

(SM) Motion to approve as corrected. Includes reference to J. Lamson in attendance at roll call and a minor correction on page three and fourteen.

(RL) Seconds motion.

4-0 Motion carries

Item five on agenda: Member’s concerns:

(HF) Ref: Law lecture series covering zoning issues and legal decisions, Saturday, October 30, 2004.

(RE) Ref: The Land use and planning handbooks- 2005 edition.

Work session set for Wednesday, September 29, 2004 at the Town Hall to discuss rewriting criteria and what category the Wood application falls under.

(SM) Motions to adjourn

(RL) Seconds motion.

4-0 Motion carries Adjournment 8:20pm

Respectfully Submitted,

Anne Taylor, Board Secretary

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September 8, 2004

Chairman Elliott called to the meeting to order at 7:03 pm.

Members in Attendance:
Roll Call was taken. Robert Elliott (RE), Chair, Susan Muenzinger (SM), Robert Lincoln (RL), Paul Metcalf (PM), Ed Vien (EV), were present. Alternate, Glenn Porter (GP) was absent, resigned by default. Town Attorney Timothy Bates and Town Administrator Jeremiah Lamson were also present.

(RE) Asks Board members if they have gone over the Code of Ethics?

Attorney Tim Bates is sitting with us tonight.

Item Three a on agenda:

Public Hearing: Application for a Special Exception filed by Kim Bryant to allow a combined dwelling and business in a Light Industrial/ Commercial Zone. (Tax Map R-39-Lot 16)

(RE) Explains procedure for presentation to applicants.

Kim Bryant: I would like to start a grooming business in my home. I have been doing this for nineteen years. It will be small, no boarding and I believe where I live is the proper location.

(RE) Does the Board want to ask any questions?

(SM) What are your hours?

K. Bryant: Seven or eight in the morning until six in the evening Monday through Friday and Saturdays until I get the business started.

(SM) What about parking?

K. Bryant: I have four to five spots.

(PM) What about overnights?

K. Bryant: No.

(SM) By appointment?

K. Bryant: Yes, no walk ins.

(SM) How many per day?

K. Bryant: I would say about five. Ten is too stressful.

(SM) How long does it take to groom each dog?

K. Bryant: One hour.

(RE) Is there anyone in the public for or against?

Closed to public 7:11 pm

Criteria:
A: The specific site is an appropriate location:

(SM) I think it is.

(EV) I agree.

Vote 5-0 passes

B: The proposal will not be obnoxious, offensive, detrimental or injurious and no diminuation in value of surrounding properties will be suffered:

(PM) There have been no objections. I think it will be ok.

Vote: 5-0 passes.

(RE) Seems to be low impact. Is it in the house itself?

K. Bryant: Yes, it also has a separate entrance.

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:

(SM) She has adequate parking. Site distance is good. People do not usually walk on that road.

Vote: 5-0 Passes

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

(SM) All heating and plumbing has been updated in the past five years. We could have the building inspector check it out.

K. Bryant: We just bought the house and recently had it inspected.

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:

(SM) It is Light Industrial/ Commercially zoned. It provides a service and personal service uses allowed by right in that zone. I also believe it is in the spirit of the ordinance.

Vote: 5-0 Passes

(SM) I think I saw in the application that she would go for a change of use-to the Planning Board for site review.

(SM) I motion to approve the Special Exception for Mrs. Bryant for a combined dwelling/grooming parlor. I would like to have a condition that she goes before the Planning Board for site review.

(PM) Seconds motion.

Vote: 5-0 Motion Carries

(RE) Informs applicant that there is a thirty-day period in which the approval can be appealed.

Item Three b on agenda:

To consider an appeal of Administrative Decision filed by John Lenaerts of 520 Clough Rd Pittsfield, NH 03263 on property located at 111 Winant Rd. Pittsfield, NH 03263 (Tax Map R22-Lot 1C)

(RE) This is my property. That is the subdivision I applied for. I need to recuse myself. Does anyone else need to recuse himself or herself? Mr. Lincoln, I ask that you recuse yourself, as you have made clear your standing in the public meeting at the Selectman’s meeting. I think it would be the right thing to do.

(RL) No, I disagree. . I said that I don’t respect you, which I don’t. In fact I don’t really like you, but that has nothing to do with how I make my decisions. I make my decisions based on what I hear and the facts. I have no pre-conceived notions. If you want to put it up to the Board for a vote, I’d be happy to do that.

(RE) I think it would be in the town’s best interest.

(RL) The Board would have to vote on it because I refuse to step down.

(SM) Addressing (RE): I agree that you should recuse yourself, I am not sure that I agree that Mr. Lincoln needs to step down. The RSA that addresses recusal has very specific items in it, I do not have them memorized but it seems to me that they don’t apply to the situation we are talking about. I too was concerned that it appeared that the Chair was trying to cut off a speaker. I think Mr. Lincoln was rather vehement in his presentation, which is unfortunate for everyone, but I don’t believe that he needs to step down. He said he could handle reviewing the application and I believe he can. I think he will try. I would like to hear from the other Board members. The Board can vote if needed.

(EV) I personally think he should step down. From what I have heard at the meetings I have been at-it is one thing to say you can be impartial, but I think it is going to open up a can of worms. I think it would be best if he stepped down, then we’d have no problems.

(PM) I think he should probably stay. My feeling is in the Code of Ethics, People have the right to express themselves. That is why they are here.

(SM) Addressing Attorney Bates: Any comments on the RSA?

Attorney Bates: I don’t think it is necessary, but the basic notion is that there is a Board member who is unable to decide the matter fairly and impartially because they are prejudiced against the applicant or a party to a proceeding, then they should step aside. Is RL so biased against RE that he cannot make a fair and impartial decision? RL said he is not. It really is his choice, not the Board’s.

(RL) If the Board members vote for me to step aside, I will.

Bates: I respect you for that. That is the way it ought to be but it is absolutely your choice.

(RL) I will go with the Board’s wishes.

(RE) The vice chair should run the meeting.

(RL) S. Muenzinger should do it.

(SM) Why do you think I should do it?

(RL) RE has some reservations here and you‘ll have more control as the Chair. Me being the Chair will only add to the problem, I think.

(SM) Acting Chair opens the public meeting at 7:30pm.

Jeremy Lamson (JL): Make sure the offer is made to the applicant that this is not a full Board.

Jim Pritchard (for John Lenaerts) stated that they have no problem with a four person Board.

(RL) One other thing, to be fair, I supported RE in three elections.

(SM) Let the record show that (RE) has recused himself. We are operating with a four member Board which the applicant says he has no problem with.

(JL) (Presents a memo) I have a Point of Order. In reviewing the records, I can find no case where an individual who was not the Board of Selectmen, the applicant, or an abutter to the case was successfully granted standing to have an appeal heard by the ZBA. The categories of appellants granted standing were the Board of Selectmen, the applicant, or an abutter. Mr. Lenaerts is not an abutter, did not participate in the hearing, is not a member of the Winsunvale Association, and until he filed the appeal, he had made no comments or filings in regards to the application. So I would ask the ZBA to determine whether or not Mr. Lenaerts has standing to bring this appeal before they hear the appeal.

(SM) (Addressing Atty. Bates) Procedurally, are we able to ask the applicant what he thinks gives him standing before the Board?

Bates: That would be my recommendation. I looked at this application after it was filed and wrote an opinion on the question of standing. In this opinion, I recommended that the ZBA address this issue first and ask the applicant to address the issue. It is important that the ZBA as an appellate board make sure that only people who have a legal right to bring an appeal to the ZBA are heard. If you decide that Mr. Lenaerts does have standing to go forward, then you’ll decide on the merits of the case. If he does not have standing, then you would deny the appeal based solely on the standing issue.

(SM) (Addressing Jim Pritchard) As the agent for Mr. Lenaerts, would you like to comment on why you think that he has standing before this Board?

J. Pritchard: Yes, John Lenaerts is a community advocate and thus he has standing under the Portsmouth Advocates, Inc. v. The City of Portsmouth 133 N.H. 876; 587 A.2d 600. We also have an article from the Concord Monitor that shows Mr. Lenaerts’ advocacy. (Copies of the decision and the article were given to the Board.)

(JL) You’re getting into another case.

(SM) Is there a reason…

J. Pritchard: The problem is Attorney Bates fell down on the job on that particular case. It illustrates the need for a community advocate.

Attorney Bates: If I were to advise the Board, I think you need to ask again why Mr. Lenaerts, who lives 3.8 miles away from Mr. Elliot’s property, has standing to bring forward this appeal.

(SM) Do you have any further comment as to why you think Mr. Lenaerts has standing?

J. Pritchard: Other than the fact that he is a community advocate and a community advocate was someone who was recognized as having standing in the Portsmouth case.

J. Lenaerts: This decision was profound. If this were practiced throughout town, in my opinion, it would be destructive to the integrity of our Zoning Ordinance. I come to every meeting and I am interested in what is going on in this town.

(SM) Does the Board have any questions for Mr. Lenaerts or Mr. Pritchard in this matter? How about Board discussion on the standing issue?

(RL) There is nothing on the books that says anything about standing.

Attorney Bates: (Reading J. Pritchard’s reference to the Portsmouth case.) Based on the facts, Mr. Lenaerts has no standing to bring an appeal. Reference to case Weeks Restaurant Corporation vs. City of Dover. You had to be an abutter before this case came to court. The Supreme Court expanded that. You did not have to be a direct abutter, but close enough to have a direct and concrete stake in the outcome of the case. No disrespect to Mr. Lenaerts, but just because you are a civic advocate does not give you the right to appeal every time you think the Planning Board or the Zoning Board has goofed up without regard to where the property is located. In the Weeks case, and I quote “Standing will not be extended to all persons in the community who might feel they are hurt by a decision on an approval pertaining to land quite remote from their own.” End quote. I think it is clear. Who has the right to engage the machinery of appellate review, which will potentially lead to Superior Court? We all don’t have that right. It is the people that are abutters or who are aggrieved by the decision. In order to be aggrieved, you have to demonstrate a stake in the outcome other than just being part of the public at large.

(SM) Mr. Pritchard, would you like to comment?

J. Pritchard: The only argument I have heard from Attorney Bates is that J. Lenaerts is not an abutter and that not everybody has standing. What I have not heard from Mr. Bates is addressing the issue that a community watchdog can have standing by virtue of being a community watchdog. That’s what I’d like to hear.

Attorney Bates: I don’t know of any case in New Hampshire that allows…Let’s assume Mr. Lenaerts is a group and that group is very interested in land use matters in the town and constantly involve themselves in Planning Board and Zoning Board Hearings. I know of no case in New Hampshire that grants authority to a group like that to appeal a decision where they do not have a concrete and direct interest in the outcome. There may be such a case, but not one I am aware of. I am not aware of any case where we have a public-spirited individual where the normal rules of standing do not apply just because he goes to all the Board meetings. It does not confer standing.

J. Pritchard: Addressing Attorney Bates: Ref: Portsmouth case not applicable?

Bates: The case does not tell me what the challenge to the standing was or how it was resolved, so I do not see how it is helpful.

(SM) I don’t understand it either.

J. Pritchard: If the Portsmouth Advocates were abutters, there wouldn’t be a question of whether or not they had standing. For example, you are saying Mr. Lenaerts doesn’t have standing because he is not an abutter. Now clearly…

Bates: Excuse me for interrupting; I am not saying he doesn’t have standing because he is not an abutter. Before the Weeks case, you had to be an abutter to have standing and that has changed. You have to be sufficiently close enough that would give you an aggrievement, which would give you standing. He is almost four miles away. Tell this Board why you think you were aggrieved by this decision.

(RL) Do you think we could table this thing to look into if there are any cases? How far did you look into this, Attorney Bates?

Attorney Bates: I wrote a two page letter to JL dated August 19, 2004 quoting case law in New Hampshire. This is not rocket science.

(RL) So, in your research, you could not find anything.

Bates: Right. It is not an esoteric difficulty of the law.

Anton Pritchard: You say this is not rocket science, yet as you study this Portsmouth case, you don’t seem to know what’s going on, is that correct?

Bates: I don’t know what’s going on in the Portsmouth case because I have not read it since 1991 when it was issued. There is nothing in here that addresses tonight’s issue. It has nothing to do with standing.

J. Pritchard: You’re saying that the decision that allows an advocacy group to have standing and we have already established the fact that if they were abutters it would not be an issue. You felt this was unimportant?

Bates: You’re saying that Portsmouth Advocates Inc. is an advocacy group. I don’t know what they are. They could be landowners involved in the historic district that was an issue in this case. This case gives us no enlightenment on this issue.

(JL) There was nothing in the appeal that would declare why Mr. Lenaerts should have standing and I don’t know about the definition of community advocate, but even if standing could be granted to a community advocate there is nothing that defines it.

(PM) Mr. Lenaerts means well, but he does not have standing. He is not aggrieved.

(EV) He has no grounds. I’m ready to vote.

(RL) None of us have background- we have to take testimony. I do not see Mr. Lenaerts as aggrieved.

J. Lenaerts: People can be aggrieved even when proximity is not an issue.

Bates: Do you think you have standing to appeal every decision by the Planning or Zoning Boards? What is so special about this? Anger?

J. Lenaerts: It turns the integrity of Zoning Ordinances on its head.

Anton Pritchard gave an extended monologue on how the application will affect Mr. Lenaerts using power plants and necks on chopping blocks as examples.

(SM) You have made your point. Are we ready to vote on standing?

(PM) Motions to not hear the appeal because of lack of standing.

(EV) Seconds motion.

4-0 Motion carries

(RL) I voted because it was the right thing to do but I am not happy about the way this thing was done, not this meeting here, but the whole situation. However, I do agree he does not have standing.

(SM) I would like to say something also. I agree I did not like the way this thing came about to us. I appreciate the fact that you have been an advocate for proper procedure and been the watchdog for all the Boards. I do believe that we need to follow procedure as a Board and we have to work with the RSA and the legal interpretation. On that basis the Board voted that you did not have standing.

J. Lenaerts: I would like thirty seconds of the Board’s time. This started with Mr. Bates, (JL), Larry Konopka, and (RE) discussing this issue and putting it together. I have read the meeting minutes and (JL) came in as an advocate for (RE), led the meeting, so to have (JL) then go to Mr. Bates and ask if I have standing. (JL) had standing forever, which he manufactured. He had standing that should not have been. Mr. Bates should not have had standing in this situation in the beginning. He was not at all proper to have the applicant meet with these four people before the applicant comes in to apply. There is something distasteful about this situation. Granted there were considerations that required Mr. Bates to give a position, but I would have thought that (JL) and Mr. Bates could have done this at arms length with letters rather than meet with these four individuals. Thank you very much.

(SM) Thank you John.

(JL) I would like to rebut. First the issue involving Mr. Elliot’s subdivision began before I started here. An application was made to the Planning Board and at the time the application was withdrawn, the issue was referred to Mr. Bates. Second, the meeting was not about the application, but in regards to the acceptance of the Winant Road Extension. I would thank Mr. Lenaerts if he would not slander me in public.

(SM) closes discussion.

J. Lenaerts requested that his application fee be returned. The ZBA says no. (SM) closed the public hearing at 8:04PM. A short break was taken.

Item Three c on agenda:

To consider an application for 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, NH 03263.

(RE) gives the others ZBA members the opportunity to see the recusal motion. (RE) then brings the motion requesting (RE) recuse himself filed by the applicant up for discussion. He asks the applicant why they feel that he needs to recuse himself.

Pauline Dodge states that Jim Pritchard is her agent. Jim Pritchard states that the reason for the request is that this application hinges on the same frontage issue that Mr. Elliot’s subdivision application involved. He contends that the frontage in both applications is illegal.

(RE) I don’t have a problem rendering an impartial decision on this application, but like (RL), I will leave it to the Board’s decision.

(SM) asks Jim Pritchard if the motion for recusal was predicated on the appeal of the Elliot Subdivision being before the ZBA.

J. Pritchard: No

(RL) (to J. Pritchard) Am I right in assuming that you are saying that because (RE) did something similar, then he is prejudiced in favor of approving the subdivision?

Jim Pritchard felt that if the frontage were illegal then (RE) would have a hard time accepting that because of his subdivision.

The other ZBA discussed the issue further and decided that the application issues were not the same and that (RE) did not need to recuse himself.

(RL) made a motion that (RE) stay on the Board.

(EV) seconds.

Motion passed 4 to 0 with (RE) abstaining.

Andrew Sullivan, Esq.: It appears that the appeal addresses two points: the frontage issue and whether or not the bond failure affects the road approval. I feel that the bond issue is not properly before this Board as it is a matter of the Subdivision Regulations, not the Zoning Ordinance. I would ask the ZBA not address this point.

(RE) asked if the bonding issue should not be before the Board. Attorney Bates stated that the applicant should have an opportunity to make his case, then Attorney Sullivan should have the opportunity to respond, once you are done, then you can ask for my legal opinion. (SM) questioned if Atty. Sullivan is saying that part of the issue should not be before the Board and if that means that the frontage issue should be before the Board. Atty. Sullivan responded that he did not feel that the frontage question should be before the Board either. After discussion, the ZBA decided to proceed.

Jim Pritchard stated that he agreed that if a performance bond had been attached to the Planning Board decision then the matter would be for Superior Court however there was not one. The bond would stand in place of a town road for the lot’s frontage. Because there was no bond, there was no frontage because there was no guarantee that the subdivision road would become a town road. Stated that the road was not a public highway and that in January the ZBA found that frontage had to be on a town road. Mr. Bates advised the Board. The three lots on the proposed Hilltop Drive do not meet the criteria established in January.

(RE) asked if that was both arguments. Jim Pritchard responded that there was really only one issue: that there was no bond so that there was no frontage.

Atty. Bates clarified that the issue before the ZBA in January, which he pointed out the Superior Court had ruled in favor of the Town on, was what kind of town road qualified for frontage. The case did not involve a private road, only town roads. He felt that this was an unfair attack on him and the ZBA regarding the issue. Atty. Bates also felt that Jim Pritchard was not correctly or fairly interpreting the January 15, 2004 decision.

Jim Pritchard reads the January decision where (SM) stated that “If the Zoning Ordinance does not interpret or have a definition of the term “frontage,” then part of what we need to do is decide what is frontage.” He added that the statement clearly addressed the ZBA’s intent to determine the meaning of frontage and Atty. Bates had advised the Board that its decision would determine the meaning of frontage.

Hank FitzGerald (HF) stated that the frontage issue being discussed involved a subdivision and was clearly outlined under the processes in the Subdivision Regulations. The ZBA also does not have the authority to change the Zoning Ordinance, only the Planning Board did. The ZBA could define something and forward it to the Planning Board. He did not believe that the issue should be before the ZBA. (RL) asked Atty. Bates if he agreed. Atty. Bates stated that he agreed that the ZBA could not amend the ZBA by interpreting the language of the Zoning Ordinance in a manner that the plain language could not support.

(HF): Frontage is not defined in the Zoning Ordinance. The Subdivision Regulations define frontage and the specifications for building roads. Even though the ZBA voted on the meaning of frontage, it never went to the Planning Board as an amendment.

(RL) asked Atty. Bates if (HF) was correct. Atty. Bates stated that the problem was that frontage was not defined in the Zoning Ordinance and defined inadequately and illegally in the Subdivision Regulations. He felt that a clear, legal definition was needed in both the Zoning Ordinance and the Subdivision Regulations. Atty. Bates continued that if anyone thought that creating private roads and subdividing lots off that road was illegal, then they were dreaming. He stated that it was illegal to require that subdivisions only occur on town roads. Atty. Bates stated that it was necessary for the ZBA to decide what frontage meant because frontage was not defined in the Zoning Ordinance. (RE) and Atty. Bates discussed the January 15, 2004 decision. Atty. Bates stated that January decision did not bar this discussion on private roads.

Anton Pritchard asked is frontage defined in the ordinance? Atty. Bates responded no. Anton Pritchard then asked if that rendered the frontage requirement meaningless because it was not defined. Atty. Bates partially agreed, stating that it was up to the ZBA to give the frontage requirement meaning by defining frontage until the voters amend the Zoning Ordinance at town meeting to insert a definition of frontage. Jim Pritchard asked about (SM)’s statement in January and whether its meaning was becoming a moving target through these revisions. Atty. Bates stated that the issue needed to be fixed in the Zoning Ordinance. (RE) stated that the Joint PB/ZBA Committee was addressing the issue of frontage.

Attorney Sullivan stated that the bonding requirement is required by statute and the Subdivision Ordinance. He continued that the bond is a mandate and did not need to be stated in the decision because the Subdivision Regulations list a number of things that cannot happen without the bond. The process, he said, has two-steps in every town because he could not build on a road unless it was approved by the Planning Board and the bond could not be obtained until after the Planning Board has approved the project. The bond is not a subjective condition, continued Attorney Sullivan, therefore it did not matter that the Planning Board did not list it as a condition. Subjective conditions need to be required by the Planning Board in their decisions, but mandated actions do not and the bonding is mandated, therefore Attorney Sullivan concluded that the ZBA lacked jurisdiction to hear the appeal.

(RL) asked if the he (FHS) intended to bond the road. Attorney Sullivan answered that they had already signed a subdivision improvement agreement. (RL) then asked Attorney Bates if he agreed. Attorney Bates stated that he had read the appeal document and the objection filed by Attorney Sullivan and he agreed with Attorney Sullivan’s argument.

Attorney Sullivan then addressed the frontage issue stating that the proposed new lots on a proposed new street had adequate frontage with the proper distances. Helen Schoppmeyer asked what happens if the mylar is recorded and no bond is posted? Attorney Bates stated that the Planning Board should mention the bond requirement in their decision. Discussion continued on the issue until (RE) stated that the mylar will not be signed in this case without the bond being posted.

Jim Pritchard stated that they (himself and Pauline Dodge) agreed that the bonding was a nonissue because they felt that the bond was not posted. He continued by stating that the January 15th decision leaves little doubt that the language used was intended to limit frontage to only being on a town road. Jim Pritchard stated that either the January 15th interpretation of frontage would stand after the meeting or the ZBA would create a new decision allowing frontage on private streets.

Attorney Sullivan concluded his comments by stating that if the ZBA rules that frontage has to be on a town road then all subdivisions in Pittsfield on new private roads would have to stop. Jim Pritchard disagreed stating that a road could be built first or the bond could stand in for the town road under RSA 674:36 (III). Attorney Bates asked Jim Pritchard if he felt that frontage must always be on a town road or if he felt that frontage could occur on a private road provided that the road was properly bonded. Attorney Bates thought that Jim Pritchard was saying from his final comments that the bonded private road was okay and wanted confirmation. Jim Pritchard refused to answer.

(RE) closed the meeting to the public and opened the appeal for Board deliberations.

(PM) stated that he felt that the cart was before the horse because if the Planning Board approves the road then the mylar cannot be signed without the bond and road standards.

(RE) asked (PM) for his opinion on the appeal.

(PM) stated that it should be denied.

(EV) agreed with (PM).

(SM) stated that the bond issue was not an issue for the Board to be hearing.

(RE) asked (SM) about the application.

(SM) The bonding issue is in the subdivision regulations and should go to Superior Court not the ZBA.

(RE) stated that he believed that (PM) was saying that the road issue was moot once the bond issue was resolved.

(SM): When the application was received there was not a bond, but there was now. I tend to agree with Attorney Sullivan that the frontage was on the new subdivision and was a common practice. I do not believe that Mr. Pritchard made the case for it being a proper issue with the Planning Board not doing something right. I would vote to deny the appeal.

(EV) motions to deny the appeal filed by Pauline Dodge.

(SM) seconds.

Motion passes 4 to 0, with (RE) abstaining.

The ZBA took a five minute break at 9:15PM. The Board reconvened at 9:20PM.

Item Three d on agenda:

To consider a motion for rehearing filed by Nancy Bates and Anthony J. ReSavage Jr. to allow a Kennel in a Rural zone at 39 Range Rd. (Tax Map R02-Lot 5) Pittsfield, New Hampshire 03263.

(RE) stated that there would be no public input on this item.

(RL) (responding to the application) I did not ask for the public’s approval and that the dispute was between (RE) and myself. It had nothing to do with Nancy Bates’ application.

(RE) asked Nancy Bates about her comments on sound, if they referred to soundproofing the kennel.

Nancy Bates answered that she had been talking to engineers about a proposal on soundproofing the kennel.

(RE) opened the discussion to the Board. (SM) stated that she had read through the letter and that she disagreed with some Nancy’s statements. However, (SM) felt that Nancy Bates had more information on sound and the ZBA could rehear the application to see if a different decision could be made. (RL) stated that he disagreed, he disagreed with the motion for rehearing and felt there was no new information in it to cause the Board to rehear the application. (RL) also felt that he was not aware of nonabutters speaking as abutters to the application. (EV) asked how much new information was necessary to trigger a new hearing. (SM) stated that the determining factor was that the new information be significant. (PM) stated that it failed on four out of five points and that is quite a number to make up on rehearing. (SM) stated that the other reason for holding a rehearing is for the ZBA to have a second chance to correct errors in the decision or the decision-making process.

(RE) stated that he may change his vote from the first hearing and he would like to hear more on the application. He cited the kennel application on Eaton Road where the Board denied the application originally and the applicant pursued mitigating the concerns of her neighbors and the ZBA changed its decision. He felt that the applicant in this case was trying to address the neighbors’ concerns in the motion for rehearing. (RE) thought that Nancy Bates should have the opportunity to be reheard to see if this was the case. (RE) cited examples such as the planting of fir trees from the motion to support his beliefs.

(RL) stated that the ZBA had to be concerned about the abutters and he did not feel there was enough to warrant a new hearing. (PM) asked Nancy Bates if she would bring a lot of new information on soundproofing and other changes if a rehearing was granted. Nancy Bates responded yes. A discussion of the Eaton Pond Road case followed.

(RE) was in favor of a rehearing.

(PM) was in favor as long as everything is posted in a proper manner.

(EV) was in favor of a rehearing.

(SM) was in favor of a rehearing though she did not think there was a lot of new information.

(PM) motions to grant a rehearing to Nancy Bates and Anthony ReSavage, Jr.

(SM) seconds.

Motion passes 4 to 1.

(SM) stated that the next issue was when the rehearing should be scheduled for. She proposed that it be the next regularly scheduled meeting of the Zoning Board. (HF) stated that there was a meeting scheduled for the 23rd of September because of the thirty-day timeframe on a different application. (SM) stated that there were other applications on that night and she felt that a later date would be better. (JL) stated that the date would be October 14th. The Board agreed to the 14th as the date.

Sam Greenlaw asked if the whole application would be reheard. The Board discussed the issue and answered yes. Larry Federhen asked if they would be working from the old application or if Nancy Bates would submit a new application. (RE) stated that a new application would be submitted for the rehearing.

Review of Minutes: August 12, 2004 and July 22, 2004
The Board started with the July 22nd minutes. (RE) stated that he had wanted the exchange between (RL) and himself in the minutes. The Board discussed additional changes before agreeing to the changes proposed by (SM). Leslie Federhen stated that the changes she and her husband had requested at the last meeting had not been made. After extended discussion, the references to the exhibits given at the July 22nd meeting were to be included in the minutes of the meeting. These corrections will be made for the next meeting.

(RL) motions to approve the July 22nd minutes as amended.

(PM) seconds.

Motion passes 5 to 0.

The Board then reviewed the August 12th minutes. (RE) stated that he did not like the fact that the Board approved a point on the Sorrentino application without a comment. (SM) had some corrections – 1. on page 2 at the bottom – that she said that Sorrentino would have to come back to the Zoning Board if there was a change, not the Planning Board. 2. on page 3 halfway down – she said that she would do a sheet of corrections not redo a sheet of corrections. 3. on page 4 at the bottom – that she said the Pritchards had joined the AHG variance lawsuit.

(SM) motions to approve the August 12th minutes as amended.

(RL) seconds.

Motion passes 5 to 0.

(JL) asked how the Board wanted the Wood application advertised. The Board discussed the matter and determined that it should be advertised as a Special Exception for a Kennel.

(SM) Motion to adjourn.

(PM) Second.

5-0 Motion Carries

Meeting adjourned 10:05 pm

Respectfully Submitted by Anne Taylor, Board Secretary

Jeremiah Lamson, Town Administrator