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Minutes of Town Board Meetings

Minutes of 5/11/2017

May 23rd, 2017


MAY 11, 2017

Members Present: Chair Dave Scalley, Diane Hogan, Joan Karpf and John Trammell and Alternates Paul Bussiere and Chris Pappas
Public: Evan Karpf, Ashley Thompson, Warrick Dawson, Bob Carey, Counsel for the ZBA, Jae Whitelaw, Counsel for the PLBD, Rachael Hempe, Counsel for Jason and Mary Sullivan, who were present, Jason Bielagus, Counsel for Joe and Lisa Trainor, who were present, Len Wood, Chris Allen, John and Anita Greer, Judy Cookson, Jim and Donna Matz.
Minutes taken by: Rena Vecchio
Pledge of Allegiance: 7:00 PM

Approval of Minutes
Chair David Scalley asked if there were any changes/additions to the minutes of April 13, 2017. There were none.
Joan Karpf made a motion to: approve the minutes of Aril 13, 2017 as written. John Trammell seconded and the motion passed unanimously.
Nomination of Officers and Alternates
David Scalley made a motion to: nominate Aaron Seatian as an Alternate to the Zoning Board for 3 years. John Trammell seconded and the motion passed unanimously.
Chairman Scalley said he will be stepping down for the coming applications and would like the board to vote Paul Bussiere to be Vice Chair for the meeting at the request of John Trammell, elected Vice Chair in April. John has never chaired a meeting and did not feel comfortable starting with these applications.
John Trammell made a motion to: nominate Paul Bussiere to Chair the meetings reviewing the Appeal by the Trainor’s. Chris Pappas seconded and the motion passed unanimously.
Applications before the Board:
1. Special Exception Application for Birchwood Common, LLC, Change of Use
Chairman Scalley said there is an application before the board for Birchwood Common, LLC for a Change of Use. He said he would like to recues himself now for that application. Joan Karpf said she would also like to recues herself. Both moved from the table to the back of the room.
Paul Bussiere introduced Evan Karpf/Birchwood Commons, LLC. He said he is looking for a Special Exception to bring Light Manufacturing into his building. Birchwood Common is located at 491 Route 3 South, Map 206 Lot 73-1 and is zoned for Residential Business (RB). Light manufacturing is only allowed in an Industrial Zone, but by Special Exception it is allowed in RB.
Warrick Dawson, owner along with Ashley Thompson, said they are a small specialty foods company called “Wozz”. They do specialty foods like savory spreads, condiments, dressings, sauces, vinegars and chutneys. They have worked for 4 years out of Bethlehem with the manufacturing taking place in Vermont. Currently their items are being sold out of the Littleton Co-op.
Evan Karpf, owner of Birchwood Commons, said this is a clean, low hazard business. He will do as the Fire Chief recommends. The owners at this point are the only employees of the business. They would eventually like to do sampling. And they would like to do items for businesses with their own labels. They also have State/septic approval.
Wozz is an award winning company. They have been awarded the NYC Fancy Food Show sofi Gold 4 times in the past 3 years, have won the Yankee Magazine Editor’s Choice Award and have been on the Today Show.
Criteria for Special Exception
1. The proposed use shall not adversely affect the capacity of existing or planned community facilities.
This is an existing building. There will be no changes to the foot print of structure. (Evans response)
2. The proposed use shall not adversely affect the character of the area affected.
Purpose is located in a commercially zoned area. All activity will be contained in the building. There will be no noise, discharge of materials, hazardous waste or toxins. (Evans response)
3. The proposed use shall not adversely affect the traffic on roads and highways in the immediate vicinity.
The location exceeds required parking for the most stringent use. Parking will be in the back of the building. (Evans response)
Evan said that the light manufacturing would be in the old bowling alley that has concrete floors and high ceilings. They would be using everything professional and industrial kettles and such.
Paul asked if they had to have a sprinkler system. Evan said no they did not but had to have a 2 hour barrier and fire doors. They also had to have notification to the apartment upstairs.
Acting Vice-Chair Bussiere asked if there was any comment for or against the application. Dave Scalley, as a member of the public, asked if the State required him to get a new driveway permit. Evan said he hadn’t but could check. Dave also asked what the hours of operation would be. Warrick said it would be probably 9-5, one or two days a week. He said there would be 3 hours of boiling and the rest would be canning and labeling.
Dianne Hogan asked about signage. Evan told her that when they took down the original sign, the selectmen at that time, told him in a letter that he could put up another sign of the approximate size. He said he will be giving a copy of the letter to the secretary.
John Trammell asked if the there would be a store front. The answer was no.
The Vice Chair asked if any public had anything to say for or against. There was none.
Vice Chair Bussiere told the board they would now go over the 3 Criteria for a Special Exception as a board:
1. The proposed use shall not adversely affect of the capacity of existing or planned community facilities.
Vice Chair Bussiere asked the board for their opinions.
The Board unanimously agreed that it would not adversely affect the capacity of existing or planned community facilities.
2. The proposed use shall not adversely affect the character of the area affected.
The Vice Chair asked the board for their opinions.
The Board unanimously agreed that the use would not adversely affect the character of the area affected.
3. The proposed use shall not adversely affect the traffic on the roads and highways in the immediate vicinity.
The Vice Chair asked for the opinions of the board.
The board unanimously agreed that the use would not adversely affect the roads and highways in the immediate vicinity.
Vice Chair Bussiere asked in there was any discussion from the board or if they were considering a vote, did the board want any conditions? The replied they had no more discussion and they did not feel the need for conditions.
John Trammell made a motion to: approve the Special Exception for Light Manufacturing, Birchwood Commons, LLC, 491 Route 3 South, Twin Mountain, NH, Map 206, Lot 73-1. Chris Pappas seconded and the motion passed unanimously. Paul Bussiere said even though there were no conditions, he hoped they would be good neighbors and would not do any business at 3 AM or such.
2. An Application for an Appeal and Request for a Rehearing for a PLBD decision made March 16, 2017, in re Sullyville, LLC, Map 207, Lot 2.
Chairman Dave Scally and Dianne Hogan recused themselves and move to the public area. Joan Karpf joined the ZBA.
Vice Chair Paul Bussiere started by saying that this would be an appeal to the
ZBA and not a rehearing under RSA 676:5 III. An appeal is for an interpretation of the Zoning Ordinance. This application will be treated “de novo” or starting new. As of now the decisions of the PLBD’s findings are suspended.
Paul told the applicants that this board would only be comprised of 4 members, which would mean that any vote would need to have 3 concurring votes. Also if the decision or vote did not go in their favor they could not use the fact that there were only 4 board members as a reason to appeal again to the board.
Paul told Jason Bielagus, Counsel for the applicants, that it would be their call as to whether to move forward or not. Jason asked for a break to confer with his clients. The applicants decided to move forward.
Jason B asked the board to introduce themselves so he could put a face to the names. He then asked who submitted the Response to the appeal. Jae Whitelaw, Counsel for the PLBD, said she did. Jason B said he objected ad went to say he did not believe the PLBD had standing. He did not believe she could be here to advocate for the PLBD’s own decision under RSA 677:2 & 3. He wants to have her Response removed from evidence. Jae said she objected. She has been defending appeals for years.
Jae asked the board for a few minutes to look at the law.
The board reconvened after 5 minutes. Vice Chair Bussiere told the board and the public that he believed that RSA 677:2 & 3 quoted by Jason were the wrong RSA’s. The ZBA is dealing with an appeal and that would come under RSA 676:5 III. The RSA Jason B quoted was for a rehearing.
Jae said she believed the stature he is quoting is wrong also. She has a right to be here to defend the PLBD’s decision.
Vice Chair Bussiere said he is in agreement with the RSA 676:5 III and that the PLBD’s decision is being defended. He would like the appeal to move forward now.
Jason B began his appeal by having the board look at a map of the property in question:
• There is a map showing the property Map 207 Lot 2
• The area in the south is zoned Residential Business
• The area north of that is zoned Residential 1
• According the Zoning Ordinance no campgrounds are allowed in RES 1 district without a Variance
• Campgrounds in the RB district need a Special Exception
• The landowners made you feel that the land was grandfathered
• However on page 18 of the town’s Zoning Ordinance, Jason read:
Section 306. Non-Conforming Uses and Non-complying Building
Any building or use existing on the effective date of this Ordinance, which does not conform, to the requirements of this Ordinance shall be continued indefinitely, but it shall not be:
a. Expanded, unless approved by the Board of Adjustment, which shall find such expansion or extension, does not create a greater nuisance or detriment.
• Jason B told the board if they were to go to page 4, of their ZO’s under the definition of Expansion of Use, it reads:
Alteration of an existing building or use of land which does not result in a substantial difference to the use which existed before the alteration. Expansion of anon-conforming use or non-complying building must be approved by the Zoning Board of Adjustment in accordance with the provisions of Article III, Sections 306.
He said basically the Planning Board cannot make ZBA decisions.
• So whatever existed before 1979 you can keep but you can’t expand before going to the ZBA.
• PLBD’s argument that they didn’t really get the Ordinance 303.a, so decided to throw it out and use Common Law
• Jason feels you have to realize the intent-the ZO did mention expansion but to with limitations-should follow the intent
• Jason B gave cases which the courts said not to the expansion of non-conforming use: New London case, Hotel to Condo’s, Hurley vs. Thomas expanding non-conforming use from one barn to another, pre-existing Arcade that wanted to expand from one room to another and the Portsmouth case where a man could not expand out but wanted to expand up.
• Jason B showed a transparency of 1990 with about 70 sites showed RB and RES 1
• He showed Exhibits A & B 375 B (1989) & 448 A (1990) and Exhibit I (all will be attached to the hard copy in the office) – A note on one of the exhibits states that all sites outside of RB zone had to be removed
• Landowners said that there have been expansion thru out the years and no previous owner had to get a permit or approval – Jason B said all illegal expansions
• #448A shows previous owner bought Lot 1, seven years later bought Lot 2 (1990-1997)-so the use of Lot 2 had gone through “abandonment”- Jason said you cannot abandon the use and then 7 years later start again with the use
• Exhibit E #1884(attached to hard copy in the office)—2002 previous owner wants to merge Lots 1 & 2—was a very informal review—no sites, nothing was shown—merger was allowed—this PLBD said if the merger was ok’d with no conditions on the campground then they ok’d everything that existed In the campground at the time—Jason B say no
• Some board members showed bias by asking if the Trainor’s were full time residents and they are not—and derogatory remarks were made about the Trainor’s having more money they brains
• PLBD failed to follow 306.a
• ZBA should have been making those decisions
• Jason B wants the ZBA to say the PLBD made errors—ZBA to decide if this a lawful continuous use or the ZBA should make the decisions if Special Exception or Variance is needed
Vice Chair Bussiere asked if anyone wanted to talk in favor of the appeal.
• Anita Greer, abutter-- feels the when the Jones went for an appeal, it appears to concur with the arguments today
• Len Wood, abutter—feels the new 30 sites will affect the quality of life because of the smoke, fire risk and having people looking around for fire wood
• Lisa Trainor, abutter—says laws need to be applied equally for everyone—in 2002 no one knew that the lot line merger would be legally allowing all the previous expansion—if this is deemed legal where does it stop?—abutters want to preserve the area
• Joe Trainor, abutter—not trying to be against the Sullivan’s or their business—maybe the boards before, were not as diligent as they should have been—but the real process was never done and it is not fair
• Donna Matz, abutter—not against the expansion and she has never complained—but the smoke and the people coming up from the river thru their yard bothers them
There were no more comments or questions for Jason Bielagus.

Jae Whitelaw, Council for the Planning Board started her response to the appeal:
• The PLBD was not in favor of or against the expansion, they went with the law
• Sullivan’s went before PLBD in November 2016 to add 30 new sites—sits in 2 zoning districts RB/Special Exception and RES 1/not permitted—expansion planned in RES 1 zone & would need a Variance unless:
1. Current use is a legally existing non-conforming lot as defined in Zoning Ordinance or
2. Has right to expand
• Bousquin (previous owner of the campground) goes before the PLBD on 9/5/2002 for a lot line adjustment
• Nickerson, previous abutter (Trainor’s bought property from her), appeared before PLBD at the 9/5/02 meeting and complained that 3 sites were over her property line—there were others also that were not at the proper setbacks—the approval for the Lot Line Adjustment was conditioned that the 3 sites would be 5’ away from the lot line and any future sites would be 15’-20’ away-- Atty. Ransmeir, representing Carrie Nickerson, said if Bousquin would agree to that it would be fair to abutters—Jae said so sites were discussed at the Lot Line Adjustment so PLBD was aware of the sites and where they were--and some abutters were present --LLA was approved 9/5/02 –problem here is no one knows how many sites were there
• No one knows how many sites were there or when—Sullivan’s testified they have not added any new sites—what is there existed when they bought the business
• The case with the hotel/cabins to condo’s was turned down not because of the non-conforming use but because they were taking the cabins and raising them up to become condo’s—court said not natural expansion
• Back to the ZO’s, they need work—think ZO intent was to allow expansion but with guidelines
• Section 306—reads to protect a non-conforming use –they can expand by the ZBA- however ZBA has authority by the legislature to only address a variance, special exception, equitable waiver or an appeal
• Definition of Special Exception in ZO, page 7 reads:
A use of a building or lot which may be permitted under this Ordinance only upon application to the ZBA and subject to the approval of that Board, and only in cases where the words “Special Exception” in this Ordinance pertain.
• In Section 306.a the words “Special Exception” never appears—ZBA cannot approve expansion or extension or whether it is a nuisance or detriment—they can only do the variance, special exception, equitable waiver or appeal-Had the word “Special Exception” been in a. that would have followed the Ordinance
• So according to that any non-conforming use would not be allowed to expand or extend—not what the legislature wanted, or the intent-now it is up to the board to decide to just keep this lawful—the board had to work on being legal and the intent—board did not just decide to throw this out and use Common Law—Board went thru a lot of work
• You have plans that show 1990 and minutes of 2002 where the PLBD discussed sites, restrictions, and limits on them and they were never appealed—so what is existing now is a legal non-conforming lot—and it is in RES 1that the expansion is wanted
• Questions on the definition and 306 a. cannot assume they meant anything-have to go with intent
• So have to look at Ordinance to see what language you can knock out but still have the intent of the Ordinance—Ordinances can say you cannot do an expansion or extension—but this is not what ordinance said—so board did their homework and deliberated over this—ordinance was clear that an expansion or extension was allowed with control—So now we are at Common Law(page 9 of Jae’s handout) – So it is up to the ZBA to decide if the campground is an natural expansion under Common Law or do they need a variance
• Could be a line between modernizing or intensifying
• Common Law Criteria
a. Is the expansion a natural activity (i.e. flows from the current use)
b. Closely related to the way the property was used a the time the use became a non-conforming
c. Is not a substantial expansion (even if it is all just more campground-is it substantial)
d. May not render the premise or property proportionally less adequate (not to big physically)
e. Does it reflect the nature and purpose of the original use
f. Is it a different way of continuing the original use or is it a different use
g. Will it have a substantially different impact on the neighborhood
• The campground use is non-conforming –whole property is considered non-conforming- Jason B objects
• Joan wanted to know why abandonment didn’t apply here—Jae said because the whole property or that time the 2 lots had camp sites on them
• Jason B said (as an example) owned a non-conforming lot. Buys his neighbor’s lot next door goes to board and wants to continue the nonconforming use. Can’t do it
• As long as it is a natural expansion she says they just disagree
• Jason B what lots were discussed at the 2002 meeting?—Paul said they would work their way around to that
Rachel Hempe, Council for the Sullivan’s/Sullyville, LLC/Beechhill Campground:
• Rachel started by saying she and her clients supported the decision of the PLBD for a legal non-conforming use
• If you have a lawful non-conforming use you do not need to get a special exception or a variance if it is a natural expansion
• She has heard several times that there are lots in the campground—there is one lot that is a campground—as far back as 1973 and possibly as far back as 1948
• A lawful non-conforming use is constitutionally protected as long as there are not provisions in the ZO that require it to do differently
• Asking to update/modernize with the 30 sites—so they will go from 142 sites and add 30 new sites for a total of 172
• Historical use of property
1. Tourist camps on site as far back as 1948 (ROW)
2. 1973 a DES subdivision and operation approval for the campground, including 70 RV sites, group camping, septic and water system approved (is approved for 209 sites total)-water line to the group camping area is still there & being used today
• Letter from Daigles saying they had camped in the area in question in the 70’s
• 1974 trademark registration for Beechhill Campground
• Listing of Beechhill Campground in 1978 NH Camping Guide being 200 acres with 70 sites and being in its 5th season—listed again in 1981 the same, in 7th season
• 1979 incorporation of BHCG, INC & warranty deed recorded, Book 625, Page 651
• 1995 State approved subdivision for 171 RV sites
• 1996-1997 aerial photo showing group camping area
• 9/20/2001 PLBD minutes noting Sullyville’s predecessor in interest, Bousquin, was asked if the northern part of the merged lot was used for camping and he said yes
• 4/15/02 letter stating property is grandfathered
• 9/12/02 ZBA minutes-Bousquin was told when he went for a Lot Line Adjustment (LLA) that his property was grandfathered and he did not need to go before the ZBA for a Special Exception
• 10/03/2002 PLBD minutes confirmed property is grandfathered, approving LLA and placing copy of his plan for future RV sites on file in the town office
• 5/27/03 State Subdivision Approval for 309 RV sites & placed in town office file for the property
• Registration card of group area being used
• Testimony from the Sullivan’s that in 2005 they checked with Town & were told there is an approval for 309 sites pursuant to the State Approved Plan on file and the prior approvals
• Do to records on file and confirmation from town they obtained a SBA loan
& purchased property in 2006
• Testimony from Sullivan’s that there are old camp sites in the northeast portion of property where there are old paths that lead to areas that were cleared for camping
• Testimony from Sullivan’s that there are paths throughout the property which in its entirety has been used for camping since the 1970’s till today
• Only 30 sites are being asked for, a natural expansion
• Estoppels may have a play here
• Abandonment is the intent to abandon the use and act on it—both lots at time had campsites on them
• Reads Common Law Criteria
• Nothing was ever appealed-abutters knew what was there
• Nine campgrounds in 5 mile radius-30 sites not substantial—smoke from ˝ the RV sites is not going to be substantial
• PLBD recently found that the campground is a lawful non-conforming use
• Joan asks how many camp sites in 2006 when the Sullivan’s bought the campground –there were 142—
• Rachel said that whole property is considered campground not just where the sites are
Paul, referencing #448A, wanted to know how you can get more sites without getting rid of Note #2. He said he can see both sides now. Rachel said that from 1989-2002 it was a lawfully grandfathered use.
Vice Chair asked the Sullivan’s and Jason Bielagus if they had tried to work things out themselves. Jason B said they had not reached the negotiation stage yet.
Jason B said he objects to the reference all the time to natural expansion.
Vice Chair Bussiere said he is having a problem with the 1990 plan, #448 A, Note #2, saying everything outside of lot 1 would have to be removed. Can’t understand why that doesn’t stand. I can see arguments on both sides. Paul said he would like the ZBA to go into non-public for legal advice.
Joan wanted to know about why there were no site plans ever. Mary Sullivan said that Bousquin had gone to both boards and asked what he had to do to expand. He was told they were grandfathered by both boards and were never asked to do a Site Plan, ever. So all boards knew about the expansion.
Len Wood wanted to know why the expansion was there. The Sullivan’s said that it was along the road that is in existence now. Mr. Wood said the NW corner of the lot is old debris and has been there since 2000.
Jason B said if you turn to his “List of Exhibits, G, Warranty Deed”, second page, it reads, “SUBJECT TO any matters shown on Plan No. 448A, Pocket 9, Folder 4, File 36 and Plan No. 1884.”
Jae said at the time that Plan 448A was done there were several lots on the property (Lots 1-2-3) so that made sense. However the Lots were merged and it doesn’t make sense today because it is one Lot.
Anita Greer said she agrees with Lisa Trainor on her concerns as to where does this end, if this is approved under Common Law.
Paul said he is calling an end to the meeting. The board has a lot of information to go over. He wants the board to listen to legal Council, think, do their homework and try to straighten this out. He hopes this ends without the neighbors hating each other.
After discussion as to the continuation of the meeting till June 8th, it was noted that neither Jae nor Jason B could be at that meeting. It was decided that June 20th would work for all parties. Joan Karpf said she thought she may be gone at that time and because the board was comprised of only 4 members, she had to be there. All parties then agreed to meet again on Wednesday, June 28th, at 7 PM.
Joan Karpf made a motion to: continue the Appeal of Decision of the PLBD of March 16, 2017, re Sullyville, LLC, Map 207 Lot 2. Paul Bussiere seconded and the motion passed unanimously.
Paul Bussiere made a motion to: adjourn. John Trammell seconded and the motion passed unanimously