Town of Fitzwilliam, NH - Planning Board Minutes 09/05/06

Minutes: The Board reviewed minutes of the August 1, 2006 meeting. Haynes moved, Schott seconded and the Board approved the minutes as written. Schott noted that she believes one of the old town wells on property owned by Steve Filipi, and discussed at the August 1, 2006 meeting as a proposed subdivision, is still a functioning well.

Mr. Lewis wanted to get the Planning Board’s thoughts on a proposed boundary line adjustment. He illustrated the proposed adjustment on a town tax map. The owner would like to adjust the boundary line separating his two properties so a narrow strip is deeded from lot 5 to lot 6, giving lot 6 water frontage. Both lots will then have water frontage, making them both more desirable and saleable.

Lot 5 has 120 feet of water frontage, and is about 3.3 acres. Lot 6 is about 1.8 acres, and is a legal non-conforming lot of record, with no water frontage. A boundary line adjustment, following a survey, will make the smaller lot more conforming and not affect the conformity of the larger lot. There is a dwelling on lot 5.

Schott asked if a deeded right-of-way (ROW) would achieve the same result. Mr. Lewis agreed it would, however, a boundary line adjustment would give the owner of Lot 6 owned frontage rather than an easement over someone else’s property. A deeded ROW would penalize the owner of lot 5, making them liable for taxes on the ROW, which would be used by someone else; he asserted a BLA is cleaner. Pini agreed that she’d rather see owned frontage.

Pini said, and the Board agreed, that the plan looks OK and the next step is to have it drawn up so that lot 6 is more conforming and lot 5 does not become non-conforming. Mr. Lewis and Mr. Hendry, land owner, agreed that if a survey revealed that couldn’t be achieved, they would pursue a deeded ROW.

Mr. Buonomano distributed a memo stating the points the ZBA considered challenging in the current livestock keeping ordinance. He gave some background for the discussion, which included information about the recent case that raised these issues. A property owner who has chickens and a horse applied to the ZBA for a special exception to keep these animals in the residential district on less than 5 acres. In the course of deliberating the case, several concerns were raised about the ordinance.

Concerns include: definition or livestock is both incomplete and too expansive, population limits are not specified, setbacks are problematic, requires subjective determinations, acreage requirements seem inconsistent, and violations of ordinance are widespread.

Parker noted that in this particular case the neighbors are highly confrontational; there is a highly adversarial attitude among neighbors. Regarding whether or not the ordinance applies to chickens, he added that the NH Municipal Association legal counsel interpreted our ordinance to include chickens and poultry.

Pini reminded us that the Planning Board did discuss including chickens in the ordinance and did not intend to do so. However, they are an animal that can be raised for meat. Haynes remarked that she does not raise her chickens for meat, and does not fence them.

Schott suggested that since the master plan calls for retaining the rural character of the town, chickens in town are OK – and asked if it would be proper to say any animal is OK as long as the care of the animal is within the best management practices as outlined by UNH for instance. If the problem is noise then set a decibel level at the property line.

Silverman said this is the problem we had drafting the ordinance – how to draft an ordinance in a way that people who have animals don’t have animals in a way that their neighbors have the animals. If I have animals, the animals may be 150 ‘ from my house but my animals are right next door to my neighbor, and the neighbor has the problem of the animals odor, noise and runoff.

He added, the ZBA’s responsibility is for situations that don’t conform to the ordinances - those things that don’t conform are what the ZBA deals with and the ZBA abrogates its responsibility when it asks only how can we interpret the ordinance – you’ve tried to rewrite the ordinance as opposed to doing what the ZBA should be doing which is to look at the individual situation and grant relief or not. At times this ZBA seems to come back to the ordinance and say it needs to be rewritten so the individual situation fits under the ordinance. We know there are problems with this ordinance - how do you make it so people on small lots can have animals. We have a lot of different situations and different kinds of lots in town, some properties are difficult and some are easier – the Board tried to strike a balance.

The ZBA does not always exercise its right to create conditions for specific situations and make it palatable to the neighbors. The ZBA is a board of relief. They can relax setback requirements with an area variance, can provide relief from the criteria – it’s within the ZBA’s power to grant relief.

Ms. Wittenborg, member of the ZBA, noted that in this case fences were on the property line and the barn was way too close to the boundary. She suggested Fish and Game be consulted regarding keeping of animals in close quarters. They are concerned about chronic wasting disease and cross species breeding.

Landy asked if some animals should be prohibited in certain districts. Ms. Wittenborg said she didn’t think over articulation of kinds of animals was a good idea. She added that she thought the best management practice for chickens is free range.

Pini said this situation isn’t just about some chickens and a horse, but about civility and neighborliness. She gave an example of barking dogs in dense neighborhoods. Mr. Buonomano asked how the Selectmen would handle a complaint about barking dogs. Parker noted that they would send the animal control officer out to investigate.

Silverman said the biggest problem is that civility can’t be legislated, and if people don’t have regard for their neighbors there is not much to be done. He added the Planning Board will be taking this ordinance up again and it will be posted.

Mr. Johns would like to start a lawn maintenance and landscaping business using equipment he already owns and stores in his garage. He doesn’t foresee customers coming to his home since all his work will be done on the customer’s property.

He does his own repairs usually, and stores only the amount of fuel he needs for home lawn mowing – 5 – 10 gallons at the most. He plans to fuel on the way to the job.

Silverman said Mr. Johns was describing a home occupation under the town’s ordinance and it was an allowed use. The Board agreed and stipulated that if the business expanded or changed from that described by Mr. Johns, he would need to come back to the Planning Board.

Mr. McCarthy owns two lots on Phillip Court and wants to merge them. He has removed a trailer from one of the lots. There is a trailer on the second lot that will serve as a dwelling for the merged lots. There is a garage on the other lot. A common driveway serves three lots, two of which will be merged.

Silverman moved, Haynes seconded and the Board voted to approve the voluntary merger of properties known as Map 12, Lot 24 and Map 12, Lot 25. The chairman and secretary signed the application, which was notarized and will be recorded at the Cheshire County Registry of Deeds.

Administrative: Silverman noted that Mr. Brooks has appealed the Planning Board’s decision to grant subdivision approval to Richard Rettig for property located on East Lake and Howeville roads.