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RINDGE BOARD OF ADJUSTMENT
30 PAYSON HILL ROAD, PO BOX 163
RINDGE, NH 03461
Tel. (603) 899-5181 X100 Fax (603) 899-2101 TDD 1-800-735-2964
http://208.112.52.16/index.cfm
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June 29, 2006
Meeting Minutes
PRESENT: Regular Members: Joseph C. Hill, MD – Chair, George Carmichael –
Vice Chair, David Drouin, William Harper, Kathy Peahl; Alternates: Marcia
Breckenridge, Charles Phillips and William Thomas.
Hill opened the Public Hearing at 7:00 p.m. with Pledge of Allegiance.
All members introduced themselves and stated whether they were regular or alternate
members.
The Secretary stated that the case(s) were posted in the following places: Rindge Town
Office, Post Office.
Hill polled all members regular and alternates:
1. Are you unbiased, and able to make a determination that is fair to both the
applicant and the Town of Rindge? All members replied YES
2. Are you familiar with the case(s) before you and have reviewed the
information available? All members replied. YES
3. Is there any reason that you need to be recused from a case before us tonight
for any reason (state the reason), including financial interest, family or
extended family interests or connections, predeterminations, or as an abutter?
All members replied. NO.
Charles Phillips will read all the applications; Marcia Breckenridge will read the
pertaining RSAs and the Ordinances for the cases before us.
Hill stated that this is a Public Meeting and there will be no testimony from the audience
tonight. We are going to decide on all three (3) cases whether to grant a re-hearing or not.
CASE #937: Home Depot U.S.A., Inc.
Route 202 – South Main Street
Rindge, NH – Map 3, Lot #2, 4-6-1, 4-6-2, 4-6-3
For a Special Exception to Rindge Zoning Ordinance, Article 1/5, Paragraph C, to
the Wetland Conservation District Ordinance for approximately 16,000 square feet
of wetlands impact.
Application for Re-hearing.
Sitting Members: Hill, Carmichael, Drouin, Peahl, Harper
Carmichael stated that their plans submitted with the application showed dredging,
filling, building and paving on wetlands. The issue of building and paving on wetlands
was one of the main reasons it was denied. Carmichael feels the building issue is
important.
Hill stated that from the beginning, Home Depot made it very clear that they proposed to
dredge, fill, build and pave in their applications. In the subsequent applications, it stated
“see attached plans.”
Harper feels that the major testimony did not stick to simply dredging and filling. The
testimony gave the ZBA traffic studies, surrounding properties, and values from a
licensed New Hampshire real estate appraiser so Home Depot's focus was not on simply
dredging and filling of the 16,000 square foot wetlands. Home Depot made their
presentation before the ZBA deliberated and their presentation included all phases of the
construction, not simply dredging and filling. Home Depot opened the door and the ZBA
walked in. Harper feels that the right decision was made.
Drouin feels that the language of this argument agrees with the 937 case language
looking for general release, he does not think it was specific as to which sections of the
ordinances apply. The 944 case was a little bit different in that language. Drouin feels
that 937 case was very general and was an open ended application supported by the plan.
The initial verbiage was very similar to this and it did not mention the building, just
dredging and filling to general requirements of the wetlands ordinance. Drouin stated the
application opened it all up and all the supporting argument was the building and paving
request on the wetlands.
Peahl stated the issue is whether the ZBA feel there is any potential error made by this
board on the decision of any of the cases. If there is no error, then there is no reason for a
rehearing and she feels there was no error made that would be necessary to grant a
rehearing.
Hill said from the beginning that Home Depot made it very clear that they proposed to
dredge, fill, build and pave 16,000 square feet of wetland; their application said so. Hill
stated "the ZBA must interpret the RSAs and Ordinances as written. An example of not
referring to ordinances as they are written, to Hill, is that Home Depot constantly referred
to high and low quality wetlands and stated that our Ordinances imply as such. Nowhere
in our ordinances is the word high or low quality used that I could find. I do not feel their
contention that the ordinance implies this is true. The ZBA may not issue a Special
Exception for a prohibited use. A prohibited use is building, paving, filling destroying
wetlands on surface waters.
In another part in their application for rehearing, they stated the ZBA erred by not only
bringing in general ordinances but specific ordinances such as those related to wetlands.
In considering any application, the ZBA needs to consider not only general zoning
ordinances but also special ordinances. In both Special Exception applications, Home
Depot stated that they had presented testimony from experts and that there was no
testimony from experts from those who opposed their application. The NHOEP
Handbook states that members of the ZBA do not need to accept the testimony of any or
all experts from either side; the ZBA members can use their own wisdom in the
community in which they live. Home Depot states constantly that all they need is a
Special Exception; however according to our Ordinances we cannot issue one for a
prohibited use and therefore, they would be required to seek a Variance.
Home Depot repeatedly talked about Administrative Gloss because of the Franklin Pierce
College cases. That application of principle is not valid. Those cases are entirely different
than what this case seeks.. There is no question in Hill’s mind Home Depot's own studies
showed that there would be increased traffic, increased congestion and increased noise.
However, there was no way that the ZBA could determine whether traffic would be
simply increased or excessive so the ZBA had to say traffic will not be excessive but the
ZBA recognized that traffic would be increased. Rindge cannot have a business or project
of this magnitude and not have increased traffic; The ZBA recognized this obvious fact
but did noot have a clear legal definition for "excessive" traffic. Hill’s feeling is that the
ZBA extremely diligently and carefully followed all the Ordinances and interpreted them
honestly and correctly. Hill’s recommendation is that no re-hearing be granted on Case
#937.
Harper said the ZBA could open up and re-hear the whole Home Depot issue and when
the ZBA re-hears it use the remarks Attorney Rayment was kind enough to give. At that
time the ZBA can just hammer on Rayment's concerns to make sure there are no flaws, or we can stand by the good work Harper thinks this Board did. He is willing to stand by the original decisions, but he’s also willing to go at it again if that is the way the Board wants to do.
Carmichael agreed with Harper. Drouin stated that going through some of the specific
arguments some of that was touched upon. He feels that some of the general zoning
ordinance cover Home Depot's concerns and he feels that wetlands ordinances are an
integral part of the total document. The Wetlands section is a subordinate of the total
document and the ZBA is totally right to use the criteria of that portion of the Zoning
Ordinance document. There were arguments about what was allowed and what was not.
We did not say it was not allowed, so Drouin does not think the ZBA jumped outside of
its area of jurisdiction. Comments made about the values of all the abutting and adjacent
properties were considered, specifically to our decision tree. There would be a negative
impact for some and the ZBA did say that there was going to be some positive for some,
but that is not what the ordinance asks. The ordinance asks would there be a negative
impact and that is what the ZBA considered. Drouin feels that both the Special
Exception arguments are very very similar and he does not see any errors.
Harper stated that Attorney Rayment brought up the Vigeant V Hudson case but that does not even apply. The Vigeant case was for an Area Variance. Home Depot is asking for a Use Variance and Harper feels there is some stretching in this whole application for rehearing and looks at it as opinion versus fact and law.
Motion was made by Carmichael and seconded by Drouin to deny a re-hearing because there is no new evidence, there is no Administrative Gloss, the RSAs and Ordinances were interpreted correctly, and support the ZBA decision of May 11, 2006.
The motion was carried unanimously.
CASE #944: Home Depot, U.S.A. Inc.
Route 202-S. Main Street
Rindge, NH – Map 3, Lot #2, 4-6-1, 4-6-2, 4-6-3
For a Special Exception to the Rindge Zoning Ordinance, Article/Section 2/5-c/8.
Requesting dredging and filling of 16,000 Square feet of wetlands as per plans
already presented to the ZBA in connection with the Special Exception which was heard by the ZBA on May 8, 2006 and May 11, 2006.
Application for Re-hearing
Sitting Members: Hill, Carmichael, Harper, Peahl, Drouin
Harper said he would like to make the same exact motion for Case #944 as was in Case
#937. Carmichael stated that they are in fact identical.
Drouin saw no change in the arguments on either side.
Motion was made by Harper and seconded by Carmichael to deny a re-hearing because there is no new evidence, there is no Administrative Gloss, the RSAs and Ordinances were interpreted correctly, and support our decision of May 15, 2006
The motion was carried unanimously.
CASE #945: Home Depot, U.S.A. Inc.
Route 202 – S. Main Street
Rindge, NH – MAP 3, Lot #2, 4-6-1, 4-6-2, 4-6-3
For a Variance to Rindge Zoning Ordinance, Article 1.3 Section 5-a. Requesting the placement of impervious structures including, but not limited to a portion of the site driveways, parking area, portion of the Garden Center and a portion of the Main Home Depot building in and within 50 feet of 16,000 square feet wetland to be filled as per the plans already presented to the ZBA and heard at the May 8, 2006 and May 11, 2006 hearing and pursuant to the filling requested in the Special Exceptions.
Application for Re-hearing
Sitting Members: Hill, Carmichael, Harper, Peahl, Drouin
Drouin stated this argument is a lot shorter than the two (2) Special Exceptions. He
addresses that it is contrary to public interest because of the size and scope, Drouin felt
that it is totally in the realm of the ZBA responsibility.
Harper asked what Drouin was referring to. Drouin stated that Rayment was arguing that
the ZBA should not have considered that the project is allowed as a matter of right. The
ZBA did not argue that a business was not allowed: The ZBA is saying the size and scope is too large a project and if it were smaller it would not have interfered. Rayment had a problem with our consideration of the property not being as unique as they stated. The ZBA covered that with hard facts.
Carmichael asked "Do any of these arguments present any new evidence?". Drouin
stated the only thing he could see was in Item #49 which says “the use would not create
excessive traffic, congestion or odors.”
Carmichael stated that between the first night (case # 944) and the second night (Case
945), Attorney Bradley spoke about the traffic and maybe some members looked
differently at it. Carmichael asked what new evidence is presented in this request
for a re-hearing. He feels there are no new facts and wants Home Depot to show the
evidence that supports this idea.
Hill said Home Depot brought up the issue of size and scope and that the ZBA was
incorrect. Hill feels the ZBA was correct on the size and scope because we recognized
that this property is zoned business / light industry. Our consideration could have been
different if a less intense form of business had been proposed for that piece of property,
much as Harper brought up. If the proposal had been a doctor’s office or hairdresser’s
etc. you would not see the potential of that much increase traffic, noise etc. Home
Depot’s request again was for a Use Variance. Hill does not think that request has
anything that would apply to an Area Variance. Hill says the ZBA's decision did not
preclude the reasonable use of the property. This property is not unique as the ZBA had
discussed. Land along Route 202 has wetland and limited access. Home Depot mentioned that the ZBA did not seem to recognize the fact that the ZBA has the authority to issue variances either from the general zoning or wetland ordinances. That is not true. The ZBA recognizes that we have that authority when and if there is a suitable case. The ZBA's feeling was that this was not a suitable case. As far as the injuring of private or public rights, Hill stated that his feeling is that the ZBA correctly determined that because of the magnitude of this project there would be increase traffic and noise, diminishing property values. There is a semantics issue between "excessive" and "increased" said Mrs. Breckenridge. Hill also disputed point 5 where in which contends the issuance of a variance would not be consistent with our Ordinance 5a. Hill spoke about substantial justice being done, Hill’s feeling was substantial justice is done by denying the use variance; there are other options for this property, and other businesses can go in there. It is not the ZBA's job to make certain that a property owner gets maximum benefit; the ZBA does have to allow the property owner to have reasonable return on his or her investment.
Harper stated that he had asked Home Depot several times to reshape the building. He
said they kept skipping over that issue. Hill also stated that there was a potential for
decrease property values, not just with Tim Halliday’s property and the Mobile Home
Park but all along Main Street, Wellington Road, Hubbard Hill. Home Depot obviously
recognized there were potential problems because they offered to buy two (2) of those
mobile radar detectors for the town. Home Depot feels that the ZBA had no right to
declare that there was regional impact. Rindge ordinances say straight forward "anything
over 45,000 sq feet requires automatic consideration." Hill’s recommendation is that we
deny a re-hearing on Case #945.
Harper stated that there was an inference the Board has a blanket opinion that any case
that comes in front of it would be denied period. He cannot remember ever saying that, as
far as he knows, the ZBA hears one case at a time and hears that case on its merits. It
upsets Harper that Home Depot made the assumption that the ZBA has made this
decision an across the Board decision, which it did not do. The ZBA is hearing this case
on the merits of the case. Harper wants to make that very clear.
Drouin asked in argument 42 which states “It is illegal and/or unreasonable for the
ZBA to deny a variance because of the “size and scope” of a project when that project is
allowed as a matter of right in the zone in question.” Drouin stated we never said it was
not allowed and in the minutes Harper stated it is not the use; it is the size of the use and
the intensity of the use that the ZBA is talking about. It could be a smaller building
center, maybe 97,000 square feet. Nobody ever said it had to be a doctor's office or an
accountant's. The ZBA never talked about a change in use. The ZBA never said it was
not allowed. Home Depot is arguing and hammering on that same point that because the
ZBA said size and scope is an issue that the ZBA is also saying that the use is not
allowed. The ZBA never said that and this fact is clear in the minutes.
Hill said that Harper had stated that if Home Depot reconstructed their building to a
smaller size the project would not have to be built on wetlands. Home Depot did not take
that option.
Peahl stated that Home Depot was seeking a variance because it was not permitted to fill
on the wetlands. Home Depot admitted that they were going to be analyzing the case
under the use and not the area analysis. She thinks Home Depot suggested that the ZBA
applied the wrong standard.
Motion made by Drouin seconded by Peahl that we deny a re-hearing due to the lack of
new evidence, the fact that the RSAs and ordinances were interpreted correctly and
support the decision of 5/15/06.
The motion was carried unanimously.
Deliberation for Cases #953, #954, #955, #956 Alain Choquette
The sitting members: Hill, Breckinridge, Drouin, Thomas, Carmichael
Phillips read all applications and Breckenridge read the pertaining RSAs and the
Ordinances for the cases before us tonight.
Carmichael stated he does not see the applicants here or their attorneys and he actually
had a question regarding sewerage pipe that he wanted answered tonight.
Hill said that this is a Public Meeting which is a continuation from the Public Hearing.
Hill's feeling is that if the applicant and his attorney both having known that we were
going to hold this did not show, we can deny entirely all of their applications and if they
wish to come before the ZBA again, they must re-file from the beginning.
Thomas asked, "Is there a chance that the applicant and his counsel went to the Town
Office?" Carmichael stated that the ZBA was very clear on that. Drouin asked, "Are you
comfortable that it was clear that there was a change in venue?" It was very clear that it
was to be tonight after the Home Depot cases. Carmichael asked how was it posted and
was told that it was to be a Public Meeting at the Meeting House. Carmichael said the
applicants were there when the ZBA made the announcement. Drouin agreed but was
just trying to give the benefit of the doubt. Carmichael asked if there were anyone who
might be able to answer any questions as the ZBA deliberates? The ZBA typically asks
questions of the applicants even though it is a Public Meeting. Drouin feels that the
change in venue is very clear. Hill's feeling is that the applicants apparently did not have
enough interest in this project to attend and Carmichael agreed. Hill feels the ZBA should
deny all four applications without prejudice and if the applicant wishes to reapply, he can.
A motion was made by Breckenridge, seconded by Thomas, that all applications are
denied for cases 953, 954, 955, and 956, without prejudice, and the applicant and none of
his representatives attended this Public Meeting which is a continuation of the Public
Hearing on these cases. If the applicant wishes to proceed, he needs to reapply.
Motion was carried unanimously.
Drouin said, "Considering and seeing the applicant's enthusiasm and monies spent, I have to believe that there was a misunderstanding in the venue or that he misinterpreted that the ZBA would not be taking testimony. Drouin does not want to slam the door shut on anyone if there are extenuating circumstances and if the applicant calls the Chair, the
Chair could make a decision to consider the matter. Carmichael agreed with Drouin.
Drouin stated that we are all human and make dumb mistakes. Drouin feels that after
seeing and walking the site with the Conservation Commission and investing not just
money but time, the applicant should have shown up if there were no misunderstanding
or problem. Carmichael said strange as it might be, there is another process caller rehearing. Drouin said that is fine as long as the ZBA is not going to shut the door because of an applicant's emergency. Drouin trusts Hill's judgment to listen to extenuating circumstances and decide what is right and fair.
Alain Choquette arrived at 8:15p.m. and stated that he was sorry he didn't come earlier,
but he was told that it would be a couple of hours before his cases would be heard.
Choquette said that since he understood there was going to be no testimony, there was no need for his attorney or engineer to be present. Hill said since the applicant was here, the ZBA should rescind the previous motion, and consider his cases.
Drouin made a motion, seconded by Hill, to rescind the last motion and to re-open the
Public Meeting on cases 953, 954, 955 & 956.
Motion was carried unanimously.
Carmichael said, "For a project of this size, I might tell you I would not have minded
waiting two hours to have my project heard, especially with the investment you have
made." Choquette apologized again, and said he completely misunderstood and was told
the ZBA might not get to him tonight, and there would be no input. Hill said he was right
that there would be no public discussion, but Hill said he never told the applicant that
there would be no questions for him or his attorney or engineer.
Deliberation:
CASE #953 Application for Special Exception relating to impacts roadway,
driveway crossings and impact related to the installation of the force main within
the wetlands impact areas.
Thomas asked under Section 8 is he required to have all his permits in before we
deliberate on this in Section 8 of the Wetlands Ordinance. Hill said the permits are not
required before the ZBA deliberates but are needed before the ZBA approves. Hill stated
that the ZBA must remember under Wetlands Ordinances, it cannot issue a Special
Exception for a prohibited use. Thomas also said there was no mention of 5-b which
specifically says no new septic system or leach field should be located within 100 feet of
a high water mark of surface waters or wetlands. Thomas thinks the applicant would
have to have a separate application just for 5-b.
Drouin said in the past there has been much discussion about whether a pipe is a part of
the septic system. In JoAnne Carr's memo, a sewer system is taken to mean all the
components of the system including pipes leading to fronts of the tanks to the leaching
facilities. Carmichael described it to his prospective, "You have a septic tank. You have a
leach field, and you have the carrier pipes. The system itself is when you take that
combination of components; that is a system." Drouin asked if this means everything
external to the building; he was told "yes."
Hill said there is another thing the ZBA does not know. "Tarbell Brook is right by there.
That is within the Aquifer Protection District." Choquette said the maps are done through
satellite imagery and the ZBA or others can actually go down and define where the
aquifer area is. Hill stated that the ZBA has to deal with what it has in front of it.
Carmichael stated that in this Decision Tree, a Special Exception may only be granted for
a permitted use as listed in the Zoning Ordinance. The ZBA has four criteria that must be
considered and the one that is glaring at him is in bold letters at the top of the Decision
Tree.
The Board determined:
1: The use will create excessive traffic based on the fact that the applicant and
abutters provided evidence of significant increase of traffic for this rural area.
The Motion carried 4-1 - Drouin opposed
2: The proposed use will not reduce the value of surrounding properties; the
applicant provided evidence that there will be no reduction in surrounding
propery value.
The Motion carried 5-0
3: There is adequate sewage and water facilities and sufficient off street parking;
the applicant provided evidence that there is adequate sewage, water facilities
and off street parking.
The Motion carried 5-0
4: The proposed use will preserve the attractiveness of the Town; the applicant
provided evidence that he is trying to take the architectural diversity to
preserve the attractiveness of the Town.
The Motion carried 5-0
5: The proposed application is in conflict with Section 5-b of the Wetlands
Ordinance.
The Motion carried 5-0
Carmichael made a motion seconded by Breckenridge to DENY CASE # 953 based on
the fact that the applicant is asking to place a Septic System within 100 feet of wetlands
which is prohibited in 5-b of the Wetlands Ordinance, and not all criteria for a Special
Exception were met.
The Motion was carried unanimously.
CASE #954 Application for a Special Exception for Elderly Housing use in the
Residential-Agricultural Zone.
1: The use will create excessive traffic, congestion, noise or odors, the applicant
and abutters presented significant evidence that it will increase traffic for this
rural area.
The Motion carried 4-1
2: The proposed use will not reduce the value of surrounding properties, the
applicant provided evidence that there will be no reduction in property values.
The Motion carried 5-0
3: There is adequate sewage and water facilities and sufficient off street parking,
the applicant provided evidence that there is adequate sewage, water facilities
and off street parking.
The Motion carried 5-0
4: The proposed use will preserve the attractiveness of the Town, the applicant
provided evidence that he is trying to take in architectural diversity to preserve
the attractiveness of the Town.
The Motion carried 5-0
A motion was made Breckenridge and seconded by Thomas to DENY Case #954
because it failed to meet all 4 criteria in Article 11 of the Zoning Ordinance, specifically
that it will create excessive traffic.
The motion was carried 4-1 with Drouin opposing.
CASE #955 Application for a Variance to pave the roadway and install other related drainage infrastructure and septic force main.
The applicant has requested that Case #955 be withdrawn from
consideration by the ZBA.
CASE #956 Application for a Variance for a building lot to have frontage on a
public right of way maintained by the state or the town.
Carmichael is confused on this case based on the discussion the ZBA had on this.
Can the ZBA grant this based on the fact that it sounds like it is a sub-division on a Class
VI road? Hill said he is asking for a use Variance. Drouin asked if the ZBA had
anything regarding sub-division in Class VI roads in front of it. He was told it is an RSA
not an Ordinance. Hill was told by Fiorelli that we are not allowed to grant a subdivision
on a Class VI road. Drouin stated that the Town has a Planning Director who
sent the applicant to the ZBA. Hill read JoAnn Carr’s memo. Drouin stated that the
applicant wants it to stay as a Class VI and still sub-divide.
Breckinridge feels that the ZBA should hold this until the Board hears from Town
Counsel. Carmichael thinks that is wise.
A motion was made by Breckenridge and seconded by Drouin to continue Case #956
until July 25, 2006 to allow the Board to seek legal clarification on the issue of subdivision
on a Class VI road.
The motion was carried unanimously.
Hill asked the applicant, if Town Counsel says that the ZBA are unable to grant a
Subdivision on a Class VI road, do you want me or our secretary to contact you and give
you the right to withdraw the case or should we go ahead and deliberate and vote. In
other words, if the ZBA hears negatively, it seems unfair to the applicant to have to wait
for the month. Thomas said the applicant would have to seek other resources because the ZBA may not be able to make a decision on this. Drouin stated it is a legal opinion and if it comes up negative, the applicant should have it so he can give it to his legal counsel. Hill said then either way the ZBA will go with the matter on July 25, 2006. Hill told the applicant to make sure that his attorney is present at 7:00 p.m. If the applicant’s attorney is not available he can always send something in writing.
Hill submitted to the ZBA the new forms for applications for second consideration. Then
only change from the other night was Item 10. The following must accompany your
application: 11 copies of the following: individual additional documents, survey or plot
plans, any photographs and photos showing the entrance. It is up to the applicant to
deliver everything to the Board. Hill said the only change he will make, if the Board
agrees, is to take the word “draft” off the form and change the date to June 29, 2006.
The board was unanimous in accepting the second reading of the ZBA forms.
Hill read the second reading of the ROP addition: “Annually, in April after the
organizational meeting, the Chairman and Vice Chairman shall review the past Year’s
expenses, and bring that information to the Board in order to revise the fees on all
applications to reflect realistic costs which shall include, but not be limited to postage,
advertising, supplies, salaries, etc.” The board was unanimous in accepting the second reading of the ROP addition. These changes will come into effect July 1, 2006.
Hill read the first reading of a new ROP addition. “The Secretary will notify the
Chairman and the Vice Chairman upon receipt of any application. Both (or one plus
another member or alternate of the Board) shall review the application as soon as possible for completeness and any immediate action that needs to be taken prior to the application being scheduled for presentation to the Board...”
The board was unanimous in accepting this change.
Meeting adjourned at 10:00 p.m.
Respectfully submitted
Joseph C. Hill, MD
Chairman
George Carmichael
Vice-Chairman
Helen Mae Olson
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