ZONING BOARD OF ADJUSTMENT MEETING MINUTES
JUNE 14, 2005
Members Present: Jane Roberts, Chairman, Edwin Mattson, Coni Porter, Gretchen Wittenborg, and alternates Dan Baker and Carl Goldknopf.
The meeting was called to order at 7:35 PM.
Case #05-08 continued: James Dunham seeks an Area Variance under Article V, Section 127-17 to exceed setback requirements for a garage he plans to build on his property, Map 28, Lot 16-5, on Route 119W in the Rural/Residential District.
Roberts reminded everyone that this case was continued to allow the Conservation Commission (CC) to do a site walk of the property, in response to an abutter concern about wetlands disturbance. They conducted the site walk and their report indicates some filling or disturbance of a running stream did occur. They determined there was no obvious impact on the abutting septic system. The CC recommended the entire slope be vegetated with shrubbery as soon as possible.
Mr. Dunham stated he was seeking a variance to construct a garage within the required setback of 75 feet. One corner of the garage is five feet closer to the road than is allowed in the Rural District. He also said he has planted grass and trees on the slope.
Goldknopf questioned whether Section 127-8 C, regarding excavations, was applicable to this case. His concern was that Mr. Dunham had begun excavation in preparation for building a garage, prior to receiving a building permit. After several minutes of discussion it was determined that the section was not relevant. Mr. Dunham has applied for a building permit for the garage; it is pending the decision on the area variance. He stated he has been excavating/landscaping the property for more than seven years to accommodate his trucking business, but at no time has he sold any excavation materials.
Porter read the Conservation Commission report and confirmed that Mr. Dunham has done the recommended planting. Mattson pointed out that the way the land slopes, it diverts water away from the abutter. He added that a lot of drainage has been installed on the property to keep water moving way. He said he thinks the CC ‘read it right.’
Carmen Yon, chair of the Commission, said it appeared the drainage from the back hill had been somewhat re-located, and the level of the diverted water was about five feet lower than the abutter’s property. They couldn’t ascertain the cause of the wetness of the abutter’s leach field without opening the field.
Roberts asked if there were any abutters to speak for or against the application. Hearing none, Roberts closed the public hearing.
Roberts asked if the Board was ready to vote and proceeded to read the Mandatory Findings that all of the following conditions are present:
1) No diminution in the value of surrounding properties would be suffered – Baker - yes, saying an abutter had presented an issue, which was not reinforced with information; Mattson - yes; Goldknopf - no, citing the disruption of the view shed of the neighbor; Wittenborg –yes; Porter – no; Roberts - yes.
2) Granting the Area Variance would be of benefit to the public interest – Baker – yes; Mattson – yes, citing the improvement in site drainage; Goldknopf – no, saying he felt the water issues were not dealt with properly, that Mr. Dunham did not follow procedures, that if zoning calls for a 75 foot setback the Board should enforce a 75 foot setback, and he thought the applicant could adjust the size of the garage; Wittenborg – yes, the property is improved by storing trucks and equipment out of sight and the property is now landscaped; Porter – yes, saying she felt the drainage had been dealt with and the land was improved; Roberts – yes.
3) Denial of the Area Variance would result in unnecessary hardship to the owner seeking it – Baker yes, the project improves the character of the land; Mattson - yes; Goldknopf – no, saying it is no hardship to make the garage five feet smaller; Wittenborg – yes; Porter – yes; Roberts – yes.
4) By granting the Area Variance, substantial justice would be done – the Board agreed unanimously.
5) The granting of the Variance would not be contrary to the spirit of this chapter – the Board agreed unanimously.
Wittenborg moved, Mattson seconded and the Board voted to grant the five foot area variance requested.
A Notice of Decision will be posted granting the Area Variance requested.
Case #05-11 continued: Steve Wendell appeals the Administrative Decision of the Planning Board denying his major site plan review application to construct three AM radio towers, access road and transmitter building on property on the east side of Route 12, south of Scott Brook, Tax Map 12, Lot 7-1, General Industrial District.
After reading the case, Roberts noted it has been ongoing since August 2004 and asked Mr. Wendell if he had anything new to add. He responded no. Baker asked if the Board was to decide jurisdiction. Wittenborg responded that the Board decides if the correct ordinance had been applied by the Planning Board and if that ordinance had been applied correctly. She said decisions about waivers were discretionary and it wasn’t in the purview of the Board of Adjustment to revisit them. Baker agreed.
Porter asked Mr. Wendell where he thought the Planning Board made an error. Wittenborg noted the Board had thoroughly vetted the waivers at the last meeting and they were discretionary, and legal matters are also outside the Board’s purview. Baker noted he hadn’t found anything in his materials to make him think the Planning Board applied the wrong ordinance, and asked Mr. Wendell to speak to the issue.
Mr. Wendell thought the Planning Board made an error by applying the definition of ‘wireless communication facilities’ and ‘towers’ when discussing these very specific, FCC regulated AM radio towers. He emphasized that the FCC requires construction of towers with specific heights and in a particular array configuration to insure the signal is not interfering with other AM stations in the area. When asked if he requested the frequency, he said no other frequency could be used in this area, based on FCC requirements and the necessary engineering.
Wittenborg said the definition of ‘tower’ applied to radio transmission towers and included arrays. Wendell disagreed, saying AM towers are very different, specific engineering is required by the FCC and there is no way a local community can change that. The engineering placed the guy wires of one tower in the overlay district, but the towers and remaining wires are outside the overlay district because the FCC required the array be oriented in a northeasterly direction that leads away from the overlay district on this particular piece of property. Wittenborg noted a waiver had been requested to be outside the district and it was denied. Mr. Wendell said a waiver had been requested and denied for height. Wittenborg reiterated waivers are not in this Board’s purview, they are discretionary
decisions made by the Planning Board.
Baker reminded everyone the Board was looking at the Planning Board’s application of an ordinance. He said this Board is not trying to supplant the FCC, but to decide if the Planning Board applied the correct ordinance correctly. Mr. Wendell said the Planning Board did not take into account the FCC regulations, nor did they consider if an AM radio station is good for the Town. Baker disagreed, saying it was the Planning Board’s job to consider what is good for the town. Ordinances are written based on the Master Plan and voted on by townspeople. He asked if the Planning Board act appropriately.
Porter said this Board can’t rewrite ordinances and Mr. Wendell asked why not. Wittenborg said we have no authority to do that, we have a very narrow mandate. Mr. Wendell asked, ‘despite whether those regulations are correct?” Baker said yes, it is our job to interpret zoning regulations, not make them – townspeople make them. Wittenborg noted all this Board can work with is the appeal before them, and in this case can only deal with the definitions not the waivers.
Wittenborg and Porter both re-read the definitions of ‘wireless communications facility’ and ‘tower.’ Mr. Wendell repeated his opinion that the definitions do not take into account an array of three AM towers regulated by the FCC. He also raised the issue of prior approval of other towers that exceed town height requirements. He raised the issue of the landscaping waiver request and reminded the Board that he’d withdrawn the request for the fencing waiver, and further noted there seemed to be no opposition.
Roberts asked if there was anyone in the audience to speak for or against the appeal. Mr. Bussiere, town citizen, said he thought AM radio was a good idea for a town. Carmen Yon, an interested resident, suggested there are horizontal tower arrays, and asked if they had been considered. He added that the overlay district encompasses at least 15 miles of roads and suggested there may be other sites where the towers could be aligned in the needed direction.
Diane Schott, a resident, told the Board she was opposed to the towers as a blight the town didn’t need. She thought the issue before the Board tonight was whether or not the Planning Board applied the ordinance as voted in by residents of the town. She thought the Planning Board did its job and hoped the Board of Adjustment would make their decision tonight.
Rob Muller, a resident, said he was opposed to the towers and wondered if there were health issues that should concern residents. Mr. Wendell said all studies in the last 50 years have shown there were no health issues of concern. If you put your head in the tower, you would ‘fry.’ However, at 10 feet from the tower there are no emissions, additionally fencing absorbs the AM signal. He added this was not like microwave towers. Regarding Mr. Yon’s comments, Mr. Wendell said the plan the FCC approved is not flexible, also the FCC has not approved horizontal arrays to his knowledge.
Mr. Yon suggested modified tower designs could lessen impact and Mr. Wendell said he’d looked at them all and none are approved. Mr. Yon thought agreements with other planning boards had been made using modified tower designs. Mr. Wendell was not aware of any.
Roberts moved, Goldknopf seconded and the Board voted to close the public hearing portion of the meeting.
Goldknopf said he thought the Planning Board applied the only criteria the town has for reviewing such an application and did as well as they could. Porter noted she thought the Planning Board had asked lots of questions, had considered tower height and applied existing zoning regulations. Speaking as a resident, she said people in Fitzwilliam value their views and the Planning Board explored those issues as well, adding she didn’t see anything that would indicate negligence on the part of the Planning Board.
Wittenborg explained she had read all the minutes and other material submitted and she thought the Planning Board applied the correct ordinance, correctly. Mattson agreed. He said while there may have been some questions on terminology this is the way the Planning Board interpreted it and he would have done the same.
Baker said that was the key issue and he thought the Planning Board decided correctly. Roberts agreed.
Wittenborg moved, Porter seconded and the Board voted to uphold the Planning Board decision and deny Mr. Wendell’s appeal of an administrative decision.
Case #05-12: Jack Bussiere seeks a Special Exception under Article III, Section 127-11G to conduct a business at his home brokering automobiles bought at auction; Map 4, Lot 55-09 on Fullam Hill Road, Rural District. Ref: Planning Board.
Roberts introduced the case and asked if Mr. Bussiere wanted to do business from home. Mr. Bussiere responded that he hopes to get his dealer’s license and broker automobiles at auction for individuals. He does not plan to store vehicles on his property, except for a vehicle in transition between auction and new owner. He does not plan to change the land use at all. He also said he has no plans to expand the business beyond brokering for individuals, but if he did, he would find a more suitable space than his home. He and his wife agree they do not want to turn their home into a used car lot. Vehicles in transition will be placed behind his garage, which itself cannot be seen from the road.
Roberts noted that there is no limit to the number of registered cars one can have on their property, but only two unregistered cars are allowed. Baker noted that in the Planning Board minutes Mr. Bussiere said he might have three automobiles at any one time. Porter asked how many vehicles Mr. Bussiere had on his property currently. He has five automobiles, one motorcycle and one ATV, all registered. There is one unregistered vehicle there that belongs to a friend who is doing some work on it in Mr. Bussiere’s garage. Neither of them are mechanics and Mr. Bussiere does not plan to work on brokered automobiles, saying he will test drive the autos at auction and only buy front line cars. He has room to store three cars under his home and does do minor repairs on his own cars, like
oil changes.
Gary Morin, an abutter, responded to Roberts request that anyone for the proposal speak up. He said he had no problem whatsoever with the plan and was for it.
Bonnie Miller, another abutter, said she was not against Mr. Bussiere having a broker’s license or earning a living, but was worried there was a chance there will be flatbed trucks and an excessive number of vehicles on the property, and that traffic on Fullam Hill Road will increase. Mr. Miller added that there are already flatbeds and junk cars accumulating around the neighborhood.
Ed Kennedy, an abutter, worried about environmental issues, that there were wetlands behind the property that may be impacted by working on cars.
Hearing no further comment, Roberts closed the public hearing so the Board could discuss the matter and make a decision. Goldknopf wondered if the Board could restrict the number of cars on the property to a specific number. Wittenborg said the Board’s charge is to consider a Special Exception, and the case would go back to the Planning Board for a site plan review. Mattson read Planning Board minutes that indicate the Planning Board expects to have Mr. Bussiere return to them to finish the site plan review and make a decision on that application.
Both Baker and Porter read Article III, Section 127-11G and noted that in the rural district a combination dwelling and business is not allowed, no special exception is provided for. Baker said that if the applicant has been sent to the Board of Adjustment in error, he recommends this Board not hear the case.
Baker moved, Porter seconded and the Board agreed this was inappropriately referred to the Board of Adjustment, the applicant was not eligible for a Special Exception, and further agreed that any fees be refunded to Mr. Bussiere.
Mr. Bussiere asked if there was any way for him to accomplish his objectives. The Board agreed he should return to the Planning Board for resolution.
Case # 05 -14: Dave White seeks an Area Variance to encroach on minimum side yard dimension by building garage and lean to for boat storage, Map 25, Lot 9-01, 50 Keene Avenue on Laurel Lake, Rural District.
Roberts read the case and Mr. White explained he requested an area variance to build a garage and lean-to in the setback for his side yard. He owns the adjoining property, which has a house on it. Boats that are now stored in the yard will be put under cover in the lean-to, and his automobile and boat and trailer will be in the garage. He noted that the planned construction will come to within 2 ½ feet of the property line.
Roberts commented that even without the lean-to the garage is still within the setback.
Mr. White agreed and said there was no other place on the property to put either the garage or lean-to. The septic field for his house is on one side, lake and road on the other two sides. The septic field for the abutting property is near the boundary line on the construction side.
Using the tax map, Wittenborg pointed out the density of structures in that area. Baker asked if Mr. White was a full time resident and Mr. White said the home was a year round residence but that he didn’t live there year round yet. Baker asked if Mr. White was willing to scale back the project by not building the lean to, explaining that building so close to a boundary line may infringe on the use of the land by another property owner. The concept of a setback is so that both neighbors can use the land.
Mr. White said the garage and lean-to are the minimum size necessary to store all the equipment. The Board discussed other arrangements, like attaching the garage to the house to further decrease the intrusion into the setback. Mr. White said it would be easier and less expensive to not build the lean-to than to attach the garage.
Roberts asked if abutters wanted to speak and Mr. O’Donnell came forward, saying he was all for it. The property will be improved by getting the equipment out of sight.
Baker asked again if the applicant would be willing to amend the building permit application to omit the lean to. He agreed. Roberts closed the public.
Baker noted this construction was consistent with other properties in the area, but noted he would like the lean-to removed from the plans. He commented on the high density of structures in the area already. Wittenborg noted the property will be improved by organizing the equipment out of sight, and the garage design is attractive. She said the house was setback from the lake and the road, so visually it seemed like there was more room. Porter said she was having trouble approving another building in an already crowded neighborhood, but omitting the lean to would alleviate the problem somewhat.
Roberts moved to a vote on the mandatory findings for an Area Variance and the Board was unanimous in their agreement that the application met the findings. Wittenborg moved, Goldknopf seconded and the Board granted an Area Variance conditioned on removing the lean-to from the plans.
Case #05-09: Ronald Morey seeks a Use Variance under Article III, Chapter 127-7 A, to build a residence in the General Industrial District, Map 12, Lot 12. His cold storage shed is located there and he proposes to modify it and reside there.
Mrs. Doyle, Mr. Morey’s mother, represented Mr. Morey at this meeting. Her presentation was informational only, since the survey work requested by the Board has not been completed yet. She also had questions about a property assessment and was directed to the Board of Selectmen.
Mrs. Doyle has engaged Mr. Ron Bell, an engineer from Spofford, to survey the property, flag the wetlands and determine how much fill was actually used in 1977. Her intention is to renew the fill permit, if all the fill was not used in 1977, and add more fill to increase land mass for setbacks. Roberts noted the Board would do a site walk once all the requested material was received.
Minutes: The Board reviewed the minutes of the May 10, 2005 meeting. Wittenborg moved, Mattson seconded and the Board approved the minutes as written.
Administrative: The Board agreed to recommend to the Selectmen Carl Goldknopf as a full member and Dan Baker as an alternate for the Board of Adjustment.
Baker moved, Roberts seconded and the Board adjourned at 10 PM.
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