Town of Milton - New Hampshire

Zoning Board of Adjustment (ZBA)

Meeting Minutes - Compiled Form

Important Note: If you wish "Certified" copies of Meeting Minutes you must get them at the Town Hall.

All minutes at this site MUST be considered DRAFT MINUTES

Date:

Members Present: Chair Bob Naeger, Vice-Chair Nancy Johnson, Michael Tabory

Alternate Members:  Tim Molinero, Tom Gray (sitting in for Dan Steinbach), John Gilman (sitting in for Bob Srnec)

Others Present: Larry Brown, Nancy Levesque. Mr. Levesque, Michelle Beauchamp

Meeting called to order by Bob Naeger at 7:05PM.

Bob Naeger discussed that the board will stick with the three regular members but welcomed the alternates to make comments or ask questions.  The three regular members constituted a quorum.

Michelle Beauchamp noted that it would be possible for the applicants to choose not to be heard by only three members of the board.

Bob Naeger thanked her for the input and appointed Tom Gray to sit in for Dan Steinbach and John Gilman to sit in for Bob Srnec.

1. Approval of the Minutes:  April 26, 2007

Motion made by Nancy Johnson to approve the minutes of April 26, 2007.  Seconded by Tom Gray; Vote: Unanimous with Michael Tabory abstaining.

2.  Public Hearing Re:  A Use Variance for property owned by Nancy Levesque; property known as Tax Map #30, Lot #25-1; located at 80 Mason Road, Milton New Hampshire; Low Density Residential Zone. The Use Variance is requested from Article VI, Section II of the Milton Zoning Ordinance to permit a primitive craft store in a portion of the garage, which is attached to the home.  The business would offer the sale of crafts, primitive furniture and home décor.  The application will be considered for acceptance at the meeting.  If the application is accepted and time permits, a Public Hearing will then follow. 

B Naeger noted that all of the abutters have been noticed except one.  All fees have been paid by the applicant.

N Johnson wanted to know why one abutter had not been noticed?

B Naeger stated that a letter was sent, but they have not received the card back.  He said it was 69 Mason Road.  The applicant, Nancy Levesque, stated that she did not believe the abutter lives there all of the time.

N Johnson said she wanted to discuss the application.  She stated she was fine with going thru the hearing process, but a thin line may have been crossed.  She stated she had looked at the property and wanted to know why is the applicant here?  She also wanted to know if the store ill include works of her own?  She wnated to know if the Building Inspector told them they needed to come to the Building Inspector, the Planning Board told them to come to the ZBA, or for some other reason?  This is for a retail store and not intrusive like a kennel.  N Johnson asked why she would want to hear the case?  If it is her work and being done in her home, is this hearing even necessary?

B Naeger stated he had the same thought about a special exception.  He noted that a retail store is not listed specifically as an exception.

N Johnson noted there is a difference from home occupation versus retail.  She read section 43 of the Zoning Ordinances which defines Home Occupation.

 B Naeger stated the board needs to hear the case before we can answer these questions.

N Johnson stated she would like a vote go on record that this is a Home Occupation if she is making most of this stuff herself.

B Naeger gave more background.  He explained that he came to Town Hall on the 15^th  and the applicant was filling out all of these forms.  The applicant was directed by Hank Soucy and the other clerks that it sounded like she needed a variance.

N Johnson asked if Hank Soucy steered her?  B Naeger stated that he did not help.  He explained again that he happened to be here and helped her fill out the application.  He did not want to go to far with her other than explaining the deadlines since he knew he would be sitting on the hearing.

Nancy Levesque, the Applicant stated she was not sure what she needed to do.  Stacey Ames gave her the Zoning Board Application when she came to Town Hall asking for help.  She was told her property needed to be surveyed.  She just wanted to put a store in her garage and was very confused.  She stated B Naeger happened to come in and gave her the Use Variance application. 

N Levesque said that she make primitive dolls.  Her daughter does signs and primitive furniture.  He plans on also having some of her friends quilts in here shop. 

N Johnson stated that makes the application more clear.  I would like to have the board decide whether in fact this needs an application.

Nancy Johnson made a motion that we do not need to hear this application since it is a Home Occupation.  Tom Gray seconded the motion.  Discussion:

B Naeger explained that the board has had extensive discussion about home occupation.  The problem with the previous case was that he was bothering neighbors.  Also, it was against the protective covenants of the subdivision.  However, the neighborhood covenants violations was a civil issue.

N Johnson stated she could not make these types of crafts and considers the applicant an artist.

B Naeger stated that this will be a retail store.

  N Johnson stated she had looked at the house and noted the applicant has substantial parking.

T Molinero asked if not hearing the application and granting the variance will effect the applicants taxes?

 N Levesque stated she had not talked to her accountant about that.

M Tabory stated he talked about opening an antique store in his house.  He stated he was told by the Zoning Board back then it would be a home occupation.  He did state if the applicant wanted a hearing for tax reasons that would be an option.

N Levesque asked if she could put out a sign?

N Johnson stated Milton has a sign ordinance and she must apply for a permit.

N Levesque asked if a sign was to be on Route 75, would she have to go to the State?

She explained that her store is “off the beaten path” and she will want signage.  Also, she stated it will be open mainly on the weekend.

Bob Naeger called for a roll call vote that this application is a Home Occupation.  Tom Gray: Yes; John Gilman: Yes; Nancy Johnson: Yes; Michael Tabory: Yes; Bob Naeger: Yes

M Tabory asked if we can give the applicant their money back?  B Naeger stated that the application fee of $90 could be refunded, but the money for the notices could not be returned.

Michael Tabory made a motion to refuned application fee of $90.  Second John Gilman.  Vote:  Unanimous.

3.  Other Business.

B Naeger recognized Larry Brown who would like to talk.

L Brown noted that once a variance is given, it goes with the land.  He was glad that the application did not go through.

N Johnson agreed and stated that if the board granted a variance, the next person could say they are grandfathered and open a gas station or something.

·        Zoning Board of Adjustment By-Laws       

B Naeger stated that he had the only copy of the amended bylaws.  He went through them and all changes had been made.  The only problem was that they stated the were adopted on May 8, 2007.  He made the changes to the date and initialed it.  B Naeger passed the by-laws to the other board members for signatures.

Tom Gray made the motion to adopt bylaws as amended.  Bob Naeger seconded the motion.  Vote: Unanimous

B Naeger went through the mail and conferences.

4. Adjournment

Tom Gray made a motion to adjourn.  Second by John Gilman. Vote: Unanimous 

B Naeger closed the meeting at 7:51PM

Robert Naeger

Zoning Board of Adjustment Chair

Respectfully submitted,

Timothy Molinero

April 26, 2007

Members Present: Tom Gray Bob Naeger, Nancy Johnson, Dan Steinbach, John Gilman, Timothy Molinero.

Others Present: Lisa Rhys, Mike McDonnell, Ida McDonnell, Hank Soucy.

Meeting called to order by Bob Naeger at 7:10 PM.

1. Approval of Minutes: Of February 22 and March 22, 2007.

Motion made by Tom Gray to accept the February 22 minutes. Seconded by Dan Steinbach; vote: unanimous.

Bob Naeger and Nancy Johnson abstain.

Motion made by Dan Steinbach to accept the March 22 minutes. Seconded by Nancy Johnson; vote: unanimous

Tom Gray abstained.

Tom Gray sitting in for Michael Tabory and John Gilman sitting in for Bob Srnec.

Bob Naeger took a minute to address the board members and thank them for being members and taking the time to hear the cases. B. Naeger also stated he will be polling the members prior to meetings to ensure a quorum for each meeting.

2. Request for re-hearing: Variance Application for Laurence Stevens and Dorothy Stowell

N. Johnson stated although it was a much better application than previous ones, she still stands with her initial decision. She stated it does not pass the hardship criteria and feels the Board made the right decision.

Motion made by Nancy Johnson not to accept the request for re-hearing. Seconded by Tom Gray.

Discussion:

D. Steinbach stated that he initially disagreed with the board's decision. He did some research and received guidance from the Local Government Center and now supports the Board's decision to deny the variance. N. Johnson commented in this case it's the degree of hardship and not enough hardship has been demonstrated. N. Johnson firmly reiterated the Board has made a decision. D. Steinbach agreed by stating they did make a decision and it is a fair decision. B. Naeger asked if in reading the request for re-hearing, is there any new information or is the applicant just restating the argument. B. Naeger stated he only voted once on the three different applications and is not familiar with everything that previously transpired with the application. B. Naeger stated what is new with this application from the previous two is there is only one lot line adjustment. This Board has heard many applications from land owners who have lot lines on lake front property so moving one lot line is not unusual but what he was doing before, rearranging all the lot lines that was unusual. This last application falls more in line with other applications and requests for variances we've heard before. B. Naeger stated he has no problem with the decision or the method of its outcome he is only stating is was a different application from the previous two. T. Gray stated we shouldn't be addressing the other two applications, only the request in front of the Board tonight. B. Naeger stated he agreed with Mr. Gray but was just restating the history of the application. D. Steinbach added by denying the request, the Board is making a just decision. H. Soucy commented the decision of the board was a good one. Milton is not a proving ground to allow or approve lot line adjustments on the lake. Non-conforming lots are non-conforming lots. If you're trying to do a lot line adjustment to make a non-conforming lot a non-conforming lot you're achieving nothing. If you're taking a non-conforming lot to make it a conforming lot, it's a whole different ballgame. B. Naeger agreed with Mr. Soucy reiterating it is not the ZBA's function or purpose to rearrange lot lines so it is more economical or saleable. D. Steinbach added there is no hardship in the current state of the law and so he agrees with the decision that was made. B. Naeger added he has never seen or heard of the ZBA approve a lot line adjustment where they moved the lot forty feet on the water front. T. Molinero stated he understand when non-conforming becomes an issue and when it's non-conforming to possibly more non-conforming, it's still non-conforming and we haven't done that have we? T. Gray stated no, he doesn't think so. B. Naeger added that brings up another issue, he had a problem with this case right from the beginning because we don’t have any lake front zoning. H. Soucy added the Board now has in their favor the Shoreland Protection Act. D. Steinbach added the Planning Board is having a workshop in May and perhaps we can talk about it with them at that time. D. Steinbach asked Stacey to ask the Planning Board to put it on the workshop agenda. B. Naeger asked J. Gilman if he had any input to add to the discussion. J. Gilman stated his position still stands.

Vote; 5-0.

Therefore; request denied.

3. Other Business.

            1) By-Laws

T. Gray noted he had several changes to the by-laws.

Corrections:

OFFICERS:

#3 Number of members should be stated (5). 673:3

#4 Originally #3, add 3 year terms, staggered. 673:6

MEETINGS:

# 2 Delete "cannot act" and replace with "is absent"

#4 Delete entire section.

#5 (a) Delete "Chairman" and replace with "Chair" throughout entire by-laws.

     (b) Delete "Clerk" and replace with "Chair".

APPEALS:

#1 Delete "clerk" and replace with Land Use Clerk" in two places.

2) DTC Lawyers Article.

Stacey handed the Board members copies of the article to read at their leisure.

Motion made by Nancy Johnson to adjourn. Seconded by John Gilman; vote: unanimous.

Meeting adjourned at 9:00pm.

Zoning Board Chair; Robert Naeger

Respectfully submitted,

Stacey Ames

Land Use Clerk

March 22, 2007

Members Present: Michael Tabory, Dan Steinbach, John Gilman, Bob Srnec, Tom Gray, and Tim Molinero (sitting in for Bob Naeger).

Others Present: Ida McDonnell, Mike McDonnell, Gail Myrick, Robert Myrick, Bill Tanguay, Chris Jacobs, John Crowell Sr., John Crowell Jr..

Meeting called to order by Nancy Johnson at 7:10 PM.

Motion made by Dan Steinbach to elect Bob Naeger to the Chair position. Seconded by Nancy Johnson; vote: unanimous.

Motion made by Dan Steinbach to elect Nancy Johnson to the Vice-Chair position. Seconded by Bob Srnec; vote: 4-1 Nancy opposed.

Motion made by Dan Steinbach to appoint John Gilman, Timothy Molinero, and Tom Gray as alternates to the Zoning Board of Adjustment. Seconded by Nancy Johnson; vote: unanimous.

T. Gray swore in John Gilman and Timothy Molinero as alternates. N. Johnson asked if there were any members of the public who would like to sit in as an alternate. There were no comments from the public.

1. By-Laws:

The Board looked over the by-laws to see if there were any necessary changes.

Motion made by Bob Srnec to accept the by-laws as written. Seconded by Dan Steinbach, vote: unanimous.

2. Approval of Minutes: of November 30, 2006 & February 22, 2007 minutes.

Motion made by Dan Steinbach to approve the minutes of November 30. Seconded by John Gilman, vote: unanimous. Michael McDonnell and Timothy Molinero abstain.

The February 22, 2007 minutes were tabled to the next meeting.

3. Public Hearing Re: Area Variance application for a boundary line adjustment prepared by Chris Jacobs of Crown Point Survey & Engineering, LLC; property owned by Laurence Stevens and Dorothy Stowell; property known as Tax Map #28, Lot #16; located on Stevens Point Road, Milton New Hampshire; Low Density Residential Zone. An "Area Variance" is requested from Article VI, Section 3 of the Milton Zoning ordinance to permit a Boundary Line Adjustment that will reduce overall size of tax lot 16. The application will be considered for acceptance at the meeting. If the application is accepted and time permits, Public Hearings will then follow.

C. Jacobs handed out a summary of the past applications presented by the Steves/Stowell.

N. Johnson stated that the board members should be sure the application is valid and if there are any questions about its validity it should be addressed immediately.

Motion made by Dan Steinbach to accept the application as complete. Seconded by Bob Srnec; vote: unanimous.

C. Jacobs stated that all they are request is to move one lot line from lot 15 and 16. Mr. Jacobs gave a brief history of the parcel and referenced Fisher v. Dover; 120 NH 187 (1980). Mr. Jacobs stated this was not the same application from 2005. Mr. Jacobs added that this application was turned in September 2006, the board met in October, it was continued to November, there was no meeting in December and in January 2007, there were not enough voting members and it was my choice to continue to this meeting. Mr. Jacobs stated he wants the Board to decide tonight. C. Jacobs read sections of an email sent to Stacey Ames, Land Use Clerk, from applicants Stevens/Stowells' who were unable to attend the meeting. A copy of the letter is attached with the minutes. C. Jacobs added the only major differences are the parcels are owned jointly and there are fewer lot lines asking to be adjusted. The main concern or complaint from abutters is traffic. N. Johnson stated the first point Mr. Jacobs made is we've only accepted the application and we have no agreement that we should be hearing the application given it is an issue and go on record that the board agrees this is a different application that has been brought before the board. D. Steinbach added he thinks it's a different application. Mr. Tanguay, abutters counsel, agrees the board should decide if it's a different application then they can move forward. If it's already been decided then they shouldn't. The test is not whether it's an identical application but it needs to be materially and significantly different. Mr. Tanguay presented the board with plans Mr. Jacobs submitted with the original application through the application presented today and explained why each prior application failed. Mr.Tanguay stated the board decided the first application failed with a finding of "no hardship". The second application failed for 1) There was no hardship and 2) it would not do substantial justice, neither decision was appealed. N. Johnson stated the board has to decide if they have a substantially different application. If the board decides it is not substantially different, we are not going to open it for Public Hearing, we will deny the application but we need to have that discussion with a vote taken by the Board. C. Jacobs explained to the board that lot 16 has two houses and a garage on it and lot 15 is vacant. D. Steinbach asked Mr. Tanguay how the court found in Fisher v. Dover (id) and what was the decision itself. D. Steinbach added he wasn't on the board when this application originated and it's new to him. D. Steinbach squished a fly with a notebook. C. Jacobs stated the applicant is trying to uphold town zoning, one lot, and one structure per lot. The applicant is trying to conform more by moving the lot line. Mr. Tanguay read the Court's ruling in Fisher v. Dover (id). B. Srnec commented the application appears substantially different to him. N. Johnson stated that is what the Board needs to decide. D. Steinbach added the Court's decision puts the burden back on the ZBA. Is it different? J. Gilman stated it's different because there is only 1 change, not several. M. Tabory stated the degree has definitely changed.

Motion made by Dan Steinbach to accept as a new application because it is in fact materially different in degree from its predecessors. Seconded by Bob Srnec, vote: unanimous.

C. Jacobs continued his presentation stating everyone shares the same road, Lakeview Drive and if the applicant sells, it will likely produce less traffic then if they continue to rent it out during the summer. Mr. Jacobs stated he thinks the applicant's variance request meets all the requirements as well as the ability to build on the vacant lot 15. Mr. Jacobs thanked the board.

N. Johnson opened Public Hearing.

Mr. Tanguay asked the Board to think about Fisher v. Dover, 120 NH 187 (1980) reiterating the test was the application has to be different in nature and degree. The original application was a boundary line adjustment; this application is a boundary line adjustment. Mr. Tanguay added this is the fifth time he has been to the meetings representing the abutters and they are simply trying to uphold zoning. Mr. Tanguay also added as a reminder that all five criteria need to be met in order to grant the variance. M. McDonnell, abutter, commented if approved, the surrounding properties stand to lose significant value. Mr. McDonnell explained how much land abutting neighbors have. Mr. McDonnell added that lots sized .3 or .4 acres is not in keeping with the homes on Lakeside Drive. They would like to see the applicants merge the lots and uphold the zoning. Mr. McDonnell thanked the Board. M. Tabory stated he didn't see Lakeside Drive on the plan. M. McDonnell commented that was because of the 911 system. It is now called Steven's Point Road. Neighbors petitioned to change the name to Lakeside Drive but the plan says Steven's Road. N. Johnson read for the record a letter sent from abutter Kaye Maggart which reads:

Date: October 26, 2006

To: Milton Zoning Board of Appeals

From: Kaye Maggart, abutter and neighbor of Stevens /Stowell property

Re: proposed variance for Stevens/Stowell lot #16, tax map 28

Dear Members of the Milton Zoning Board of Appeals:

I write as an abutter to lot #16 (tax map 28) owned by Larry Stevens and Dorothy Stowell, which is being considered for an “Area Variance” at the ZBA meeting tonight, October 26, 2006.

I received the registered letter notifying me of this hearing, but since I live in Connecticut and cannot attend, I am sending this email letter with my concerns.

1.  Rationale: A variance on Lot 16 (tax map 28) was already denied by the ZBA last January. Originally it was part of the larger Stevens/Stowell variance request for lots 16, 17 and 34, (tax map 28) which the Milton ZBA denied. Even if minor changes were made for this request, the rationale (subdivision for profit) is the same. Does the ZBA want to consider multiple resubmissions of a variance they already denied?

2.  Objections to “facts supporting the request:”

- Property Values: (a) The proposed variance to lot 16 of the Stevens/ Stowell property will threaten our property values because it divides an existing small, lakefront lot in two, making part of it only 71’ x 100’. This is much smaller than our surrounding lots. Our abutting lot, for example, is at least four times that size. (b) Subdividing it under the pretext of a variance would invite an even higher concentration of cottages. It would also increase traffic on our private road, Lakeside Dr. Both of these factors diminish our property values.

 - Public Interest: (a) Using a variance application to achieve a lot subdivision for profit is not in the public interest. Mr. Stevens’ application even refers to the variance as a “subdivision” on this point. (b) We also have health and safety issues about creating such a small lakefront lot which would not meet current environmental codes. Even if new septic systems with leaching fields were installed on the divided lots, those systems –at best--would be up against our property lines and be a health threat.

- Hardship: Mr. Stevens is seeking to divide lot 16 in order to increase its sales value. He does not show other “special conditions” that make the variance (subdivision) necessary. Division of a lot to increase its sales value is not a hardship. 

For these reasons, I, along with other abutters of the Stevens/Stowell property, and Lakeside Drive residents strongly oppose the above variance to lot 16 (tax map 28) being proposed to the Milton ZBA tonight

Sincerely,

Kaye W. Maggart, abutter to Stevens/Stowell property

81 Lakeside Drive

Milton, NH

H. Soucy asked if the lot line would be creating a new lot. N. Johnson stated no, it's only moving the existing lot line. H. Soucy added he is concerned about septic systems, there have been issues with septics and he feels that the lot across the street, provided they receive an easement, cannot support the septic. Bob Myrick, a neighbor, stated his concerns with the road. There are already ruts in the road with only three people living there. There is an easement across my land and increasing the number of people and traffic will make it harder to maintain the road. The second issue is the septic that isn't going to conform. This can affect the quality of the lake too.

N. Johnson stated she would like to give Mr. Jacobs and Mr. Tanguay the final say.

C. Jacobs summarized to the board why they should approve the lot line adjustment as well as expressing they do not want to put a house on vacant lot 15 but can if the lot line adjustment doesn't pass. He expressed their concern to clean up the lots. Mr. Jacobs added that lots 15 & 16 true abutters are Rachel Meehan and the applicant themselves. D. Steinbach asked Mr. Jacobs if lots 15 & 16 shared a septic. Mr. Jacobs stated no, they have their own however; they do share a seasonal water supply at which time if they are concerted to year round homes, wells will be needed. D. Steinbach asked what types of septics are on the lots presently? C. Jacobs responded that no one knows.

Mr. Tanguay commented that the Zoning Board previously denied this application because the applicant could move other boundary lines thereby, not have a sideline set back. The Board is bound by there own interpretations to so rule again. Regarding the questions about septics, if this was divided and new septic systems were required to put in, we don't know who would own the new lot 15 and if lot 34 was owned by somebody else, we have no guarantee that the owner of 15 would be able to get an easement to put their septic on lot 34 and we heard testimony there was nowhere to put a septic on lot 15 and it would need an easement. D. Steinbach added that he believed Mr. Jacobs stated he already had test pits done on lot 34 and if they decided to build on lot 15 they would have to ask the owner of lot 34 if they could put the septic on their parcel.

B. Srnec stated as far as increasing the amount of traffic, it may increase it year round but it's not going to increase the amount of buildings. D. Steinbach agreed with Mr. Srnec and added that making the adjustment will decrease traffic as well as sewage. N. Johnson stated they would go through the criteria and if any one fails, the application fails.

Nancy appointed John Gilman as a voting alternate.

N. Johnson read the criteria for the Area Variance application.

1) The proposed use would not diminish surrounding property values.

Dan Steinbach: Agree; will not diminish surrounding property value it's his opinion that it will increase the value of surrounding properties because you're taking 1 piece of land out of play and creating lots that are non-conforming but still better than the current lots.

Nancy Johnson; Agree. John Gilman; Agree. Bob Srnec; Agree. Michael Tabory; Agree.

Criteria passes 5-0 unanimous.

2) Granting the Variance would not be contrary to the public interest.

Bob Srnec: Agree; not contrary to the public interest. When you buy onto these places, you have to expect some of the land is going to be built on. I think it will be more in the public interest by producing more taxable property. General income to the town will increase if this property gets approved so I do not believe it is contrary to the public interest.

John Gilman; Agree. Dan Steinbach; Agree. Michael Tabory: Agree. Nancy Johnson; Agree.

Criteria passes 5-0 unanimous.

3) Denial of the variance would resulting unnecessary hardship to the owner.

 A) Nancy Johnson; Disagree; as it stands, lot 15 is a buildable lot even though it's non-conforming and has a problem with this criteria of unnecessary hardship.

 Dan Steinbach; Agree; by denying the variance we would be creating a potential financial hardship to the owner of the property and denying the variance will not be beneficial to the property owner.

N. Johnson read the definition of "hardship" to Mr. Steinbach.

"Hardship, as the term applies to zoning, results in a restriction when applied to a particular property becomes arbitrary or unduly oppressive because of conditions of zoning restrictions. Hardship under zoning law has nothing do with the physical or economical condition of the owner."

Bob Srnec; Disagrees; no hardship exists.

Dan Steinbach stated the one piece he can't argue is the confiscatory part of it. He feels it is unduly oppressive because the ordinance does not allow us to do what he thinks is the right thing. The right thing is to move the lot line a minimal amount of feet in order that a larger lot is created. It's something of an arbitrary nature and unduly oppressive. It's in the spirit of the zoning ordinance to create bigger lots and less traffic and clean up the lake.

Michael Tabory; Agrees; hardship exists, a lot of things change regarding hardship. Look at the economic impact of the zoning ordinance on the property owner and other available alternatives.

John Gilman; Disagree; no hardship exists.

Criteria Fails: 2-Yes 3-No

 B) Bob Srnec; Agrees; the same benefit can not be achieved by some other reasonable and feasible method that would not impose an undue financial burden.

Dan Steinbach; Agrees.

John Gilman; Agrees.

Nancy Johnson; Disagrees; if they merged the lot they may have a better benefit to achieve a more conforming lot.

Criteria Passes: 4-Yes 1-No

4. Granting the variance would do substantial justice.

Bob Srnec; Agrees: granting the variance would be good for the owner's property.

Nancy Johnson; Agrees.

Dan Steinbach; Agrees.

Michael Tabory; Agrees.

Criteria Passes: 5-0 unanimous

5. The issue is not contrary to the spirit of the zoning ordinance.

Dan Steinbach; Agree; we are going against the spirit of the ordinance. In my opinion, the spirit of the ordinance is one house on one lot and the spirit of the ordinance is to protect the water that is our most important resource in this town. I believe this passes that it is not contrary to the spirit of the ordinances. In addition the preamble to the ordinance talks about maintaining the nature of a small New England community. This means family dwellings and I think by doing this we've reached into the true spirit of what a zoning ordinance is about.

Nancy Johnson; Agrees.

Michael Tabory; Agrees.

John Gilman; Agrees.

Bob Srnec; Agrees.

Criteria Passes: 5-0 unanimous

Nancy Johnson stated the application however, failed due to hardship and thanked everyone.

N. Johnson called for a brief recess at 9:10PM.

Back to order at 9:20PM.

 Bob Srnec stepped down with Timothy Molinero sitting in as a voting member.

4. Public Hearing Re: Use Variance application submitted and property owned by Jonathan Crowell, property located on Harmony Drive, accessed off Route 16 through Wakefield (Tax Map 10, Lot 1 Industrial zone) Milton, NH. A Use Variance is requested from Article IV; Section A.1 Permitted Uses, of the Milton Zoning Ordinance to permit: A residential structure and use to be located on this parcel in the Industrial Zone. This application was accepted as complete at the February 22, 2007 meeting.

Nate Fogg of Land Tech explained what Mr. Crowell would like to do with his parcel in that he was hoping to put a residential structure on the lot. N. Johnson asked what type of road it was. Mr. Fogg stated it was a Class V road in Wakefield and a Class VI private road in Milton. Mr. Fogg added there appears to be the issue of whether a building permit can be issued on a Class VI road but that is a separate issue that I would like to take up at another time. This evening we're looking for a use variance to allow a single family residence on this lot. N. Johnson stated it was zoned industrial. Mr. Fogg stated that was correct. Mr. Fogg also commented that he has other options for an industrial or commercial type of use but he would like to build something that is in keeping with the neighborhood and use it in the same fashion the other lots are being used. Mr. Fogg went through the facts supporting his request for the use variance. Additionally he added there is a frontage issue and maybe issues getting a building permit there but that is for other boards and individuals to decide.

N. Johnson opened Public Hearing.

John Crowell Sr. addressed the Board stating his son just wants to build a house and pay taxes in our town. B. White stated that the main thing is a residence in an industrial zone and she thinks that maybe having a warrant article for the March meeting to change the zoning to residential. The house that is in there in Milton was accidental and not supposed to be there. N. Johnson stated that the area was zoned industrial around 1995-96 because developments at the exit made more sense. Lisa Rhys questioned why it was an industrial zone because it sounds like it's residential. D. Steinbach stated there are residential houses on the road. T. Gray added that only one of the houses was in Milton. The others are all in Wakefield. L. Rhys asked for clarification that there is no commercial development. Never has been, and yet remains an industrial zone. N. Johnson stated that was correct. T. Molinero asked if lots 12 & 13 were industrial as well. N. Johnson said she wasn't sure about lot 13 but lot 12 is industrial. T. Molinero asked if all the surrounding land was industrial as well. N. Johnson stated she is sure all the land they were looking at was zoned industrial. M. Tabory asked if Wakefield does not allow commercial vehicles to travel over Harmony Drive. H. Soucy stated it is correct and that Harmony Drive is a private road and you have to access the parcel through Wakefield. D. Steinbach added if they aren’t using the land for its intended purposes then he should be allowed to build his house. It's a catch 22.

N. Johnson closed Public Hearing.

Nancy Johnson read the criteria for the variance.

1) The proposed use would not diminish surrounding properties values.

Nancy Johnson; Agrees; the residential structure on this parcel would not diminish property value.

Michael Tabory; Agree.

Dan Steinbach; Agree.

John Gilman: Agree.

Tim Molinero; Agree.

Criteria Passes: 5-0 unanimous

2) Granting the variance would not be contrary to public interest.

Dan Steinbach; Agrees; He thinks it's in the public's interest to develop the property in any way, shape or form available.

Nancy Johnson; Agrees; if they grant the variance, it's not contrary to any public interest.

Michael Tabory; Agrees.

John Gilman; Agrees.

Tim Molinero; Agrees.

Criteria Passes: 5-0 unanimous

3) Denial of the variance would result in unnecessary hardship to the owner.

 A) Dan Steinbach; Agrees; it is a hardship on the property owner because it is confiscatory in nature, it presents an unnecessary burden.

Nancy Johnson; Agrees; in what he is asking for with the variance, because of the zoning, and as a result of the zoning, it is a hardship.

Michael Tabory; Agrees.

Tim Molinero; Agrees.

John Gilman; Agrees.

Criteria Passes: 5-0 unanimous

B) Nancy Johnson; Disagree; there is a fair and substantial relationship between zoning and restrictions.

Dan Steinbach; Agrees; the same benefit can not be achieved unless he goes someplace else, buys someplace else. That is an undue financial burden.

John Gilman; Agrees.

Michael Tabory; Agrees.

Tim Molinero; Agrees.

Criteria Passes: 4 Yes -1 No

4) Granting the variance would do substantial justice.

Dan Steinbach; Agrees; Justice is a scale, public interest on one side and the persons interest on the other. I am leaning toward the individual so I think justice is being served by granting the variance and allowing him to build a house.

John Gilman; Agrees.

Tim Molinero; Agrees.

Michael Tabory; Agrees.

Nancy Johnson; Agrees.

Criteria Passes: 5-0 unanimous

5) The use is not contrary to the spirit of the Zoning Ordinance.

Tim Molinero; Disagree; the town has zoned it industrial, they voted on it to be industrial. They should bring it to the March vote as a warrant article to change it to residential. To me the spirit was voted on, the town needs to make that decision.

Nancy Johnson; Disagrees.

Michael Tabory; Disagrees.

Dan Steinbach: Agrees; it is in the general welfare of the Town of Milton to allow this gentleman build a home on this land.

John Gilman; Agrees.

Criteria Fails: 3 No- 2 Yes.

Nancy Johnson stated the variance application fails.

5. Other Business:

 1) OEP Conference.

It was discussed that new members take the beginning zoning class. Stacey handed out registration forms and requested they be returned to her no later than Monday.

6. Adjournment:

Motion made by John Gilman to adjourn. Seconded by Tim Molinero; vote: unanimous.

Meeting adjourned at 10:00 PM

Zoning Board Chair; Robert Neager

Respectfully submitted,

Stacey Ames

Land Use Clerk

February 22, 2007

Members Present: Tom Gray, Dan Steinbach, and John Gilman.

Others Present: Jonathan Crowell Sr., John Crowell Jr., Nate Fogg, Lance Bodwell, Andrea Bodwell.

Meeting called to order by Dan Steinbach 7:10 PM.

Dan Steinbach appointed Tom Gray to sit in for Chair Bob Naeger.

1. Approval of Minutes of November 30, 2006 & December 28, 2006 minutes.

This item was moved to the end of the meeting.

2. Public Hearing Re: Use Variance application submitted and property owned by Jonathan Crowell, property located on Harmony Drive, accessed off Route 16 through Wakefield (Tax Map 10, Lot 1 Industrial zone) Milton, NH. A Use Variance is requested from Article IV; Section A.1 Permitted Uses, of the Milton Zoning Ordinance to permit: A residential structure and use to be located on this parcel in the Industrial Zone. 

The Board read through the application. Tom Gray asked if all the abutters had been notified. Stacey stated they had. Dan Steinbach asked if all the fees had been paid. Stacey stated they had.

Motion made by Tom Gray to accept the application as complete. Seconded by John Gilman, Vote: unanimous.

Dan Steinbach asked the applicant if he would like to discuss his application.

Nate Fogg of Land Tech was representing the applicant; handed copies of the map included with the application to board members and explained that Mr. Crowell would like to build a house on the parcel. Mr. Fogg added that other parcels on the road have residential housing even though Harmony Drive is not fully developed but adequate for access. Mr. Fogg also stated his concern that there was only a 3 member quorum and would like to check with the applicant before they decide whether to proceed with the meeting or not.  T. Gray asked how many residents were on Harmony Drive. Mr. & Mrs. Bodwell stated they were the only other Milton residence on Harmony Drive; the other residents are in Wakefield. D. Steinbach suggested a continuance. T. Gray stated that was up to the applicant to continue it or go forward. Mr. Fogg stated he would like to hear from the abutters and Code Enforcement.

Dan Steinbach opened Public Hearing.

D. Steinbach asked if there were any abutters present. Mr. & Mrs. Bodwell stated they had no problem with the application, adding it was a residential area. Hank Soucy reiterated what T. Gray had stated and that there was only one other residence in the Town of Milton which was done without the proper permits. He also added that he recommend that the Town seek legal counsel before they make any decisions because the Town of Wakefield does not allow any commercial vehicles on the road and have no intentions of improving that road at all. You have to access the parcel through Wakefield to get to Milton. D. Steinbach asked if our section of road is a Class V road. H. Soucy stated it was a Class VI road which needs to be approved by the Board of Selectmen in order to issue a building permit. D. Steinbach asked if the Board of Selectmen is not issuing permits on Class VI roads. T. Gray stated that has been the practice of the Board not to approve these applications. H. Soucy asked it be on record that he spoke with Mr. Crowley several months ago and he explained to him it would probably not be an acceptable building lot and recommended if he wanted to pursue it to come in front of the Board. H. Soucy added that he believes the zoning in Wakefield is different than ours. D. Steinbach asked how big the lot was. Mr. Fogg stated it was 36.3 acres according to the tax card. H. Soucy stated that the Town of Milton is still responsible to provide services such as fire and police and if the road is not properly maintained and we can't get in there, we will be liable. Additionally it is not Milton's practice to issue permits on Class VI roads. The Bodwells stated that they had fire trucks and police cruisers in there not too long ago and everyone got in there just fine. H. Soucy voiced his concerns regarding the condition of the road during mud season. D. Steinbach recommended they continue the hearing. Mr. Fogg asked if they could see what the issues might be to help move this along at the next meeting. T. Gray stated that the application is a zoning issue and the issuance of a building permit is a Selectmen's issue. Mr. Fogg asked if it was any building permit or just residential? T. Gray stated it was any permit on a Class VI road. D. Steinbach asked if there was any other public comment. Mr. Fogg stated that they would like to continue to the next meeting.

Motion made by Tom Gray to continue the hearing on March 22, 2007. Seconded by John Gilman; vote: unanimous.

Approval of Minutes of December 28, 2006 minutes.

Motion made by Tom Gray to accept the minutes of December 28, 2006 as written. Seconded by John Gilman; vote: unanimous.

3. Other Business:

4. Adjournment:

Motion made by Tom Gray to adjourn. Seconded by John Gilman; vote: unanimous.

Meeting adjourned at 7:50 PM

Zoning Board Chair; Robert Neager

Respectfully submitted,

Stacey Ames

December 28, 2006

Members Present: Chair Bob Naeger, Tom Gray, Bob Srnec, Chris Jacobs, Dan Steinbach, and John Gilman.

Others Present: Kimberly Gilmore, David Gilmore, Brian Porter, Rick Curlee, Karl Williamson, Timothy Moreau.

Meeting called to order by Chair Naeger at 7:06 PM.

Motion made by Rob Naeger to appoint Tom Gray as an alternate to the Zoning Board of Adjustment. Seconded by Dan Steinbach; vote: unanimous.

Rob Naeger noted that Tom Gray had been sworn in prior to the meeting.

Chris Jacobs stepped down from voting but remained seated for comment.

Bob Naeger noted that Tom Gray and Bob Srnec were sitting in as voting members of the Board.

1. Approval of Minutes of November 30, 2006

R. Naeger moved the minutes to the end of the meeting.

2. Public Hearing Re: Area Variance application for a boundary line adjustment prepared by Chris Jacobs of Crown Point Survey & Engineering, LLC; property owned by Laurence Stevens and Dorothy Stowell; property known as Tax Map #28, Lot #16; located on Stevens Point Road, Milton New Hampshire; Low Density Residential Zone. An "Area Variance" is requested from Article VI, Section 3 of the Milton Zoning ordinance to permit a Boundary Line Adjustment that will reduce overall size of tax lot 16. 

S. Ames stated this item should not have been listed on this agenda rather the January 2007 agenda. S. Ames apologized for the mistake.

3. Public Hearing Re: Use Variance application for cutting and selling of firewood for Timothy Moreau; property known as Tax Map 37, Lot 13; located on 228 Evergreen Valley Road, Milton NH; Low Density Residential Zone. A "Use Variance" is requested from Article VI of the Milton Zoning Ordinance to permit a firewood cutting and delivery business. This application was accepted as complete on November 30 and is continued from that meeting.

R. Naeger stated that this was continued from the December meeting for reasons of a couple missed abutters that needed to be notified and also to allow Town counsel to review and give opinion of the Board's definition of "Agribusiness". R. Naeger read, for the record, counsel's response, copied below.

 I've looked into this matter and have examined the copy of the deed to Mr. Moureau that you sent to me which contains the property use restrictions.

I think it is reasonably clear that the statute, RSA 21:34-a, does not define farm, agriculture, or farming in a way that includes the processing of firewood that is harvested elsewhere and brought to a lot in a residential district for processing and sale, as Mr. Moureau is apparently doing.  For example, RSA 21:34-a, II (a)(11) includes within the definition of "agriculture" and "farming" "all operations of a farm, including .... the production, cultivation, growing, harvesting, and sale of any ..... forestry .... crops." (emphasis added.)  In short, Mr. Moureau is not operating a farm, so it is hard to avoid the conclusion that this section of the statute does not apply to him.  Similarly, RSA 21:34-a, II(b) (4) includes "Forestry or lumbering operations", but only if, as the introductory language of RSA 21:34-a, II(b) states, those activities are part of "any practice on the farm, incident to, or in conjunction with such farming operations." (emphasis added.)  In sum, since as far as I know Mr. Moureau is not operating a farm, I do not think his firewood business falls within the definitions found in RSA 21:34-a.

Since the definition of "Agribusiness" on page 2 of the Milton Zoning Ordinance is clearly tied to RSA 21:34-a, it is my conclusion that Mr. Moureau's processing of firewood in the residential zone is not allowed because it does not fit within the zoning's definition of "Agribusiness," and he therefore does need a use variance to legalize the activity.

D. Steinbach stated to Mr. Moreau that the initial application stated that Mr. Moreau would be cutting and splitting firewood for friends and neighbors however; D. Steinbach has seen advertising signs all over the place, all the way to Concord. T. Moreau stated that initially he started cutting and splitting firewood for friends and neighbors but it grew from there. D. Steinbach also added that Milton and other towns have ordinances with guidelines and rules regarding signage and Mr. Moreau's signs are going to start disappearing. T. Moreau added that people have already started taking them. D, Steinbach cautioned Mr. Moreau that he's welcome to put them up but to be certain he stays within the guidelines of the town. D. Steinbach asked Mr. Moreau if he was still operating in Farmington at which time Mr. Moreau stated yes. D. Steinbach asked if the Use Variance is denied, will Mr. Moreau continue to operate in Farmington and Mr. Moreau stated he possibly would. B. Srnec commented that he recalled Mr. Moreau talking about two (2) other businesses presently being run on Evergreen Valley Road. One being an auto repair business, the other a wood cutting business. T. Moreau stated that it was a firewood processing business, almost identical to Mr. Moreau's. B. Srnec added that Mr. Moreau will need to file a complaint with the CEO who in turn will issue a cease and desist order. B. Srnec then asked where the businesses were located on Evergreen Valley Road. T. Moreau stated the auto shop has no sign but repairs cars daily at 167 Evergreen Valley Rd. He also added that he felt it wasn't fair that the other two (2) businesses can operate but he cannot. T. Gray asked Mr. Moreau if he had filed a written complaint to which Mr. Moreau stated he had spoken with H. Soucy verbally regarding the issue but has not filed an official complaint. D. Steinbach pointed out that ordinances and the purpose of the Board is pretty clear, if there is something going on that is against the ordinance, the Board has a decision to make and that is whether to stick to the letter of the law or to allow flexibility based on individual circumstances.

D. Naeger opened Public Hearing.

Rick Curlee commented that on Mr. Moreau's application, under the first section stating why the Use Variance is requested, Mr. Moreau stated it is requested to allow the cutting of firewood for neighbors and owners use and to anyone else that has a need for firewood to be delivered, also on page 2; (actually page 5 of application), number 3 (a), Mr. Moreau makes it sound like he is going to be cutting the timber from his own property which is not what is happening at all. He has it trucked in. D. Steinbach asked if anyone has actually seen it being trucked in. Kim Gilmore stated on average, depending on the time of year, whether it's spring or fall, she sees a couple of trucks a week. D. Steinbach asked if they were the big logging trucks. K. Gilmore stated yes and R. Curlee added they were the ones with the big cranes on the back of the truck. R. Naeger asked when was the last time Ms. Gilmore saw a truck, she stated it was about three (3) weeks ago when Mr. Moreau was moving his operation to Farmington. K. Gilmore stated there were at least eight (8) logging truck full of wood. T. Moreau stated he could tell the Board exactly how many truck loads of wood was moved from his property, it was three (3) full loads and one (1) partial load. D. Steinbach asked Mr. Moreau what kind of a financial impact he is gong to incur if the Board rejects the Variance. Mr. Moreau stated approximately $15,000 yearly.  It is going to cost him $1,000 for rent if he stays in Farmington. D. Steinbach asked if that was $1,000 per month. Mr. Moreau stated no, it was $150.00 per month. He also added that he recently found out that Irving Oil has a right to the property he is using and if he was able to move the operation to his back lot, no one would see the logs from the road. D. Steinbach asked the abutters if the noise was a problem as well or if it was just the visual part of the operation. Kim Gilmore stated that she purchased property on Evergreen Valley Road with a limited warranty deed with covenants that said that you weren’t to have commercial advertisements or perform commercial operations on the property. Having trucks running up and down the road is dangerous. R. Curlee stated he lives two (2) houses away in a quiet setting and his deed has protective covenants so Mr. Moreau should take his commercial business somewhere else. Brian Porter, also a Evergreen Valley resident, bought his home for the same reason, they are log style homes with protective covenants.

Rob Naeger closed Public Hearing.

C. Jacobs commented that covenants are only enforceable by the people that live in the community the covenants are protecting and if they have a problem with something a resident is doing, it's a civil matter. With respect to covenants, the ZBA has no standing authority. D. Steinbach added, in other words, if the ZBA approves the Use Variance, residence will have to take the mater to court in a civil action suit against the person(s) going against the protective covenants. R. Naeger asked C. Jacobs if the Board should do an itemized vote on every question or if they should do one (1) vote on the total application. C. Jacobs stated the votes must be specific and item by item is recommended. R. Curlee stated that he was told that the monetary aspect of hardship can not be considered when making a decision. D. Steinbach asked C. Jacobs if economics indirectly come into play. C. Jacobs stated that the money he pays for rent and the distance traveled should not be considered a hardship. He also stressed the Board must be clear to the applicant and abutters why they voted the way they did. R. Naeger read out loud the last paragraph in the opinion letter from the Town Attorney which read:

Finally, with one or two exceptions that do not seem relevant in this situation, it is always our advice to land use boards that they should not take into account any alleged private restrictions that might be enforceable against an applicant to prevent the applicant from engaging in a use of land approved by the planning board or ZBA.  This advice is based upon the fact the neither the planning board nor the ZBA has been given authority by the legislature to rule on whether the alleged private restrictions are legally enforceable, by whom they might be enforceable, and whether the restrictions would, in fact, prohibit the use that is applied for if the restrictions are, in fact, enforceable.  All those are questions are civil matters that must be decided by the courts if those wishing to block the intended use pursue the enforcement of the restrictions.  In short, the local land use boards have no authority, training, experience, or expertise to rule on the question of the applicability of alleged land use restrictions that may affect the lot in question.

 R. Naeger called for an itemized, roll-call vote.