Zoning Board of Adjustments
ZONING BOARD OF ADJUSTMENT
APPROVED MEETING MINUTES
July 28th, 2020
Public Hearing/Meeting
Members & Staff Present:
Bob Holmes (Member), Shelley Nelkens (Member), Ray Ledgerwood (Member participating by Zoom), Diane Kendall (Member), Christopher Parks (Alternate), Carol Ogilvie (Planning Consultant), and Ashley Brudnick-Destromp (Assistant)
Absent: John Giffin (Chair)
Public Attendees: Carol & Dave Dahlberg (Self), Bernadett Todd (Self), Renee and Michelle Rabideau (Self participating by Zoom), John Cronin (Attorney for applicant), Tom & Joyce Davis (Applicants), and Thomas Carr (Meridian participating by Zoom)
*Due to COVID-19 this meeting was conducted with social distancing and also made available to public access via Zoom*
The Assistant informed the Board she just received the Conservation Commissioners report this evening, and emailed it to the applicant.
Opening of Meeting: Vice Chair Kendall opened the meeting at 7:00 pm.
She introduced the Board, and appointed Mr. Parks as a full member in replacement of Chair Giffin who was unable to attend.
I. Public Hearing Continued: JT Enterprises, LLC 2020-03 ZBA Map 214 Lots 011, 012 &013 (Corner of Smith Rd and Elm Ave.) Continued Public Hearing for a Special Exception for a proposed new excavation site.
The Assistant read the public notice for the continued Public Hearing. Vice Chair Kendall asked if there was anyone present or participating by Zoom that wished to speak. The Assistant said she had received one email from Renee Rabideau, and read the email. (Email will be attached to minutes).
Mr. Cronin asked to respond, Vice Chair Kendall granted permission. Mr. Cronin started by saying he wanted to reference the letter from Town Council in 2007, and that in both the Village and Highway Business Districts by Special Exception building materials and excavation are allowed. He added that if the ZBA reads the Ordinance, the only use that covers excavation is building materials and that use is permitted by special exception.
Vice Chair Kendall asked if there were any further questions or comments. There was no response.
Vice Chair Kendall closed the Public Hearing at 7:04PM. The Board moved into deliberation.
Mr. Holmes said the Board needs to discuss if the applicant has met the criteria for a Special Exception. Vice Chair Kendall said she first wanted to clarify the application. The original application was for Article VII Section C-h “building materials.” The original application was passed in prior to the recodification of the Zoning Ordinance this year as mentioned in the previous meetings. Vice Chair Kendall then read the answer on the applicant’s application for a description of the proposed use: “Excavation of, and removal of naturally deposited esker (gravel & sand) to allow reasonable access and development of applicant’s land. The existing topography prevents both reasonable access and development.” Vice Chair Kendall reiterated that this is the description of the proposed use they want in the Rural District.
Mr. Holmes said he would like to vote if applicant can apply for a Special Exception with “building materials.” Vice Chair Kendall added that excavation is clearly defined in the Zoning Ordinance, and that the application references excavation throughout the responses but not building materials. Mr. Parks asked for some clarification, and Ms. Nelkens also wanted to clarify/mention that the original application in 2007 was denied, reapplied, and then withdrawn, and how the withdrawal does not change the fact it was denied. Vice Chair Kendall referenced the term “Can’t take a 2nd bite of the apple” to clarify what point Ms. Nelkens was making, and Ms. Nelkens confirmed that was her point.
The Board discussed how RSA 155-E was the 1st application in 2007, and the ZBA determined that it was not allowed. The applicant then asked for a rehearing and withdrew immediately without prejudice. Mr. Holmes also mentioned there was an issue of the NOD (Notice of Decision) not being delivered on time. Vice Chair Kendall mentioned now the applicant is not asking for a Special Exception under RSA 155-E, now they are asking to have building materials as the Special Exception. The Board discussed the differences between the 1st and 2nd application. The biggest questions were “Is excavation building materials,” and “What was the intent of the Zoning Ordinance.” If excavation was intended to be a permitted use by Special Exception, it would have been listed there followed by specific criteria but it’s not, building materials is listed but what is building materials defined as?
Ms. Ogilvie read the definition of building materials from the Zoning Ordinance: “Any materials or equipment used in the construction of residential or commercial buildings and accessory structures.”
Mr. Holmes mentioned he wanted to go over the other definitions to get a better understanding. Mr. Holmes read the definitions for:
Excavation: Means a land area which is used, or has been used, for the commercial taking of earth, including all slopes.
Earth: Means sand, gravel, rock, soil, or construction aggregated produced by quarrying, crushing or any other mining activity or such other naturally-occurring unconsolidated materials that normally mask the bedrock.
Mr. Holmes ended his statement by saying that the definition of earth says it’s a “construction aggregate,” so it is clear that it is a construction material and that the Special Exception is being asked for “building materials,” and not “construction materials.” Mr. Parks was still not clear on the differences between building materials and construction materials and asked if a Special Exception is needed for the sale of those items. Vice Chair Kendall suggested looking at it in context of other items listed as permitted uses by Special Exception in the Rural District: “Restaurants, business and professional offices, veterinary clinics, hospitals and nursing homes, motels, hotels, motor inns, tourist homes, bed and breakfast establishments, social clubs, building materials, recreational vehicle park, conversion apartments, elderly housing, manufactured housing parks, and raising animals for their pelt or pelt ranches.” Mr. Parks concluded that you would need a Special Exception to sell building materials after further discussion with Vice Chair Kendall. Mr. Parks also mentioned the fact that if they were having a gravel store, it would be allowed, but not the excavation of gravel. Vice Chair Kendall reiterated that the applicant is asking for excavation which is clearly defined, and not saying that they are looking to sell and supply gravel with a store. Mr. Holmes added on saying that the applicant wants to excavate earth, and if excavation of earth is not allowed in the Rural Residential area, then the Board needs to decide if excavation is building materials or construction materials.
Ms. Nelkens was confused with the differences, and asked if the applicant applied for a store for selling gravel would they have gotten approved. Ms. Ogilvie said that they would not get approved without having to go through a separate process.
Motion: Mr. Holmes made a motion to vote if the applicant has authorization or not for grounds for a Special Exception, Mr. Ledgerwood second it.
Discussion: Mr. Holmes wanted to clarify with the Board that a “Yes” vote means that they would continue with the process and then go over the criteria. A “No” vote would mean the applicant had no authorization to file. The Board members all understood.
Roll Call Vote: Mr. Holmes, “No”, Vice Chair Kendall, “No”, Ms. Nelkens, “No”, Mr. Ledgerwood, “No”, Mr. Parks, “No.”
The Board voted unanimously that the applicant did not have the authorization or grounds for a Special Exception for Building Materials. The Application was DENIED.
The Public Hearing ended at 7:21PM. The applicant and their attorney left after exchanging some words off the record per the attorney’s request with the Board. The Assistant will get a NOD to them.
I. Review and Approve/Amend Minutes from 7/9/2020 & 7/21/2020
Motion: Ms. Nelkens made a motion to approve the minutes as written from 7/9/2020, Mr. Holmes second it.
Discussion: Ms. Nelkens asked about line 190 where the Chair said that they would look into the claim that the applicant had already excavated the site when they were removing timber. The Assistant said it was on a list of items to have the Code enforcer look into. Ms. Ogilvie added that a property owner is allowed to harvest timber, and that there is a grey area when it comes to top soil that is removed in the process.
Vote: Mr. Holmes, “Yes”, Vice Chair Kendall, “Yes”, Ms. Nelkens, “Yes”, Mr. Ledgerwood, “Yes”, Mr. Parks, “Yes.”
Motion: Mr. Parks made a motion to approve the minutes as written from 7/21/2020, Mr. Ledgerwood second it.
Discussion: There was none.
Vote: Mr. Holmes, “Abstained”, Vice Chair Kendall, “Yes”, Ms. Nelkens, “Yes”, Mr. Ledgerwood, “Yes”, Mr. Parks, “Yes.”
III. Other Business:
There was none.
IV. Staff Report:
The Assistant informed the Board that the Planning Board was working on a current use project, and has decided to work with Ms. Ogilvie on drafting a new TIF District. The Board also has a conceptual consultation scheduled for their next meeting on 8/6/2020 for a major subdivision near Franklin Pierce Lake.
The office also received a complaint from Art Kaufman that the Planning Board will be addressing on 8/6/2020 in regards to the ITW Franklin Peirce Lake Cell Tower. In summary, the letter expresses how there continues to be no service provided from the cell tower.
Ms. Nelkens asked for an update on the Loverens Mill Cell Tower. The Assistant informed the Board that the equipment is on the tower, but it is not operational. They filed for and were granted an extension, and hope to be operational by the end of the year but are having issues with connecting the fiber optic line to Henniker where the next location is.
Vice Chair Kendall asked that Ms. Ogilvie and the Assistant inform the Planning Board that the ZO needs to be updated in terms of excavation.
Motion to adjourn: Mr. Holmes motioned to adjourn the meeting, Ms. Nelkens second it.
Vote: the Board members unanimously said “Aye”
Meeting Adjourned: 7:35 PM
Respectfully Submitted,
Ashley Brudnick-Destromp
Assistant to Land Use Boards