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Board of Adjustment Minutes 11/02/2005
NOVEMBER 2, 2005

Case #183A Jane & Gary Stock, Map 4 Lot 58, rehearing of Obnoxious Use granted to Map 4 Lots 55 & 56 located on Lane Road owned by Virginia Mayville/Mayville Family Trust.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; Jeffrey Jordan; Louis Barker; David Dobson.  (All members will be voting)

Applicant:  Jane & Gary Stock
Abutters:  Lisa Wade, Ulla Rasmussen
Allen Mayville, Jr., Paul Twomey, Joan Elkins, Dennis Jobin, Pam Smith, Robert Johnson, Jeff K, John L.

Jane wanted to clear up a few issues before proceeding with her case.  The cease and desist letter they received from the Selectmen’s office was signed by the secretary and not the Selectmen or the Board of Adjustment.  Therefore, she does not feel it is legal and binding.  She also feels that the first vote made by the BOA on 8/3/05 is null and void because Mr. Allen Mayville, Jr. did not have written authority from the owner of the property to bring the case before the BOA.  

Selectman Steve MacCleery agreed with Jane about the cease and desist letter and said this could be addressed at a Selectmen’s meeting.  Ed Meehan added that the BOA would not be the one signing a letter of compliance if someone were found to be in violation of zoning.

About the letter of authority, Secretary, Holly MacCleery stated while preparing for the rehearing a letter was not found in the Mayville file granting permission to Allen Mayville to represent this case on behalf of his mother or the trustee of the family trust.  A certified letter was mailed to both Virginia Mayville and Lynn Mayville on 9/19/05 requesting a letter granting Allen Mayville authority to represent the family in this matter.  A letter postmarked 9/22/05 was received by the BOA stating such.

Paul Twomey added that if it were a variance or special exception then the applicant should be present or permission should be given for someone else to represent them.  He did not know enough about the case to offer a legal opinion but as a general rule you shouldn’t just assume someone is representing the applicant without their authorization.

The BOA took Mr. Mayville at his word and heard and voted on the case in August.  All abutting family members, including Mrs. Mayville, were notified of the public hearing which they did not attend.

Lisa Wade, abutter and attorney, stated that in the NH courts that if a lay person is going to represent another individual it has to be on record a power of attorney granting that person the right to represent them.
John Lake, legal council for the Mayville Family Trust, stated he did not think any court would find the first hearing null and void.  

Paul-If no one had shown up, could you have gone forward with the case?  If Mrs. Mayville had to be present and was unable to attend you would need authorization from her for someone else to represent her case.

Mr. Lake-Mr. Mayville was authorized to represent the Mayville Family Trust.  Just because there is no signed letter doesn’t mean he wasn’t authorized.  

Lou Barker-We can consider this during this hearing but I don’t think we throw the previous decision out.  That would be something to appeal to a higher court.  We acted within the bounds of what we thought our duties were and a decision was made.  That decision stands until it is overturned or reversed.

Mr. Lake-That is a decision for Superior Court not this board to decide all over again.

Ed-It is my feeling that we should move forward with the rehearing.

Steve-In the BOA Handbook it states, “The rehearing process is designed to afford local zoning boards of adjustment an opportunity to correct their own mistakes before appeals are filed with courts.  Fisher v. Boscawen 121 NH 438, 1981.”  Because we now have a letter of authorization on record that may take care of the matter.  

The Stocks stated for the record that they are not happy with what happened.
Since the August 3rd meeting the manure pile has been moved.  In the minutes Mr. Mayville stated he would be happy if the pile were moved 50’ east, which they did.  The pile is now more visible than it was before.  A diagram and pictures of the pile and its location were given to the board.  (On file)  The pile has been removed and fit into two 6-wheel trucks.  The pile is always being removed because people take it for their lawns and gardens.  It is not removed in the winter time because of the snow.
In the spring of 2000 the pile was in the location across from the Mayville driveway which wasn’t a problem until the spring of 2005.  Mr. Allen Mayville, Sr. would let the Stocks use his tractor as well as take the manure himself.  The pile had been in its present location until in was deemed obnoxious in August.  The pile has been moved and the Stocks feel that the Mayvilles are still not happy.

Jane’s new evidence for her case is the State of NH Right to Farm laws.  RSA 432:33 Immunity from Suit states, “No agricultural operation shall be found a public or private nuisance as a result of changed conditions in or around the locality of the agricultural operation, if such agricultural operation has been in operation for one year or more and if it was not a nuisance at the time it began operation.  This section shall not apply when any aspect of the agricultural operation is determined to be injurious to public health or safety under RSA 147:1 or RSA 147:2.”  She feels the statue of limitations has passed for someone to be making a complaint about the pile now.  They have been running the horse operation since 1999.  Zoning boards are supposed to support agriculture and farming.  Their farm is located in an agriculture area and has been there since 1756.  This is not a smelly, soupy pile.  It grows grass.  When the Dept. of Agric. came to look at the property they said we were in compliance.  We have never said we wouldn’t move the pile.  Currently, there is paperwork filled out for a manure stock pile grant, which they were never told they had to have.  The design is left up to the applicant and they supply the material which is concrete blocks.  The paperwork has not been submitted because they do not have the equipment to place the blocks at this time.  They need to find out what will make the neighbors happy before a permanent structure is built.

Gary questions that if the pile that was found to be obnoxious where it was on August 3rd and has since been removed, then shouldn’t it now be deemed not obnoxious because it doesn’t exist.

Ed explained that where the pile sits now has no bearing on this hearing.  This hearing is to look at the evidence presented appealing the decision made on August 3rd.

Because of the Right to Farm laws being presented the Stocks feel the original pile should not be deemed obnoxious.  They would like to resolve this problem.  

Mr. Lake-With respect to the Mayville Family Trust, there was a valid meeting of the BOA, and a determination that the particular use where the pile was located was obnoxious.  The operation is not obnoxious, just the placement of the pile.  I understand that the motion for this rehearing is based on their position that there should be no liability because this is an agricultural operation.  What I feel has been over looked is the statutes behind that, which state Nuisance Liability of Agricultural Operations RSA 432:34 “when they conform to federal, state and local laws, rules and regulations.”  The local zoning ordinance has the provision about obnoxious use so that precludes the reliance on the agricultural use because of the local ordinance.  If there were an objection to your ruling it should have gone before the Superior Court.  I can see no reason for a rehearing.  I do not believe there is a present complaint about the pile and a 3-sided storage facility would be the best practice.

Pam Smith questioned that since the pile has been moved and there is no current complaint against the pile now, is there still an issue?

Ed explained that it is an issue because the Stock’s have appealed the decision.  If the decision wasn’t challenged or a rehearing wasn’t granted, the matter would be over with.  

Steve-It would still be on the record that there was an obnoxious use on the manure pile.

Paul Twomey-Agricultural uses in this town are permitted uses not obnoxious uses.  It is a use the town voted on and put into place.  This use generates manure.  If they wanted to put restrictions on agricultural uses they could have done so.  Obnoxious use is some use that threatens health, ability to breath etc.  This is just a matter of aesthetics.  Clearly, in RSA 432:33 the use has been there for more than a year, it is grandfathered.  People that move in next to an agriculture zone will have to live with it since it is already established.
Lisa Wade-Had a concern with the BOA’s original hearing because as a horse owner, with a manure pile, the decision has a grave impact to the entire town.  Chichester’s Master Plan identifies farm land as a natural resource.  The Master Plan states that it should act as a guiding principle for the town in interpretation of ordinances.  This is a very important use in this town.  The obnoxious ordinance is speaking about harmful issues and health.  That is not the case with the Stock’s.

Rob Johnson, Director of the NH Farm Bureau Federation- We have concerns with what is happening with this case.  The Right to Farm has already been mentioned.  The Dept. of Agric. has visited the site and finds no violations.  The obnoxious use ordinance is very broad.  Please consider the intent.  The Stock’s have made concessions.

Jeff K-The pile has been in the same spot for at least 5 years and hasn’t caused a problem until now.  Why?  I have seen that the pile gets removed quite often.  The state said where the pile was originally was the best place on the property to keep it.

Ulla-Also has horses and is using best management practices.  Has a concern with obnoxious use and if she will be asked to move her pile several times.

Jane wanted to know from Mr. Mayville why it was so important to him to have the obnoxious use labeled to her property.  She has tried to work with him on the placement of the pile that would be agreeable to him.  Mr. Mayville insinuated that Jane was using her illness to gain sympathy from the board and that the Stock’s had not been cooperative in moving the pile to an agreed upon location.  

Mr. Lake-Feels Jane’s concern is misplaced.  What was determined to be an obnoxious use was the location of the pile.  It is not there any more so there is not an obnoxious use at this time.

Joan Elkins felt the BOA should not have made a decision the evening of Aug. 3rd since Jane was so sick and couldn’t present the evidence she now has.

Dennis Jobin has been helping the Stock’s out and doesn’t understand what the real problem is either.  He does not feel it is obnoxious.

Gary-Mr. Lake made a comment about the state earlier.  The containment structure is just a suggestion from the state.  The Dept. of Agric. stated where the pile is, is where it should stay.  The pile has been moved.

Jane-We have conformed to the state limitations.  We can’t do any more than what we’ve done.

Mr. Lake-When I remarked about the local ordinance, I was referring to the zoning ordinance which has the provision for obnoxious use.  That is a local regulation.  

Ed-One of the complaints from Mr. Mayville was the decrease in property value because of the manure pile placement.  He had a realtor go look at the properties in question.  Jan Trudo submitted a letter stating she felt it would not affect the future sales if the home owner’s manage the pile as it appeared when she observed it.  (Letter on file)

Steve-The opinion of Mr. Lake that the local regulations takes precedence over the state RSA I do not believe is true.  I believe the RSA could possibly make the town regulation of obnoxious uses illegal itself, in this instance.  The town can put anything it wants in zoning but that doesn’t mean it’s legal.  There are RSA’s that protect farming.  It was stated in Janis Conner’s letter, from the Dept. of Agric., to the Stock’s dated 4/18/05  “piling manure over the winter months along with its removal in the spring is an acceptable best management practice.  However, I do recommend (doesn’t say require) the construction of a containment facility to accommodate the volume of manure generated on your farm during these months.”  It states it could be a wood structure and not concrete.  The letter also states, “Due to the slope of your property, the proximity of the pond and the wetlands, I do not recommend that your manure storage be moved any where else on your property.  I feel that its present location is the best in preventing a possible negative impact to this area.”  I believe there has been more communication between the Stock’s and Janis since this letter.  I don’t think the Dept. of Agric. has a problem with the storage facility being put where the Stock’s are proposing it.

Jane stated that Janis visited the property again and said there would not be a problem putting the pile more easterly on the other side of their gateway.

Steve-With the new information before use, State RSA’s, I don’t see any other choice than to reverse the previous decision.

David-We need to find out if the town zoning is superseded by the state.  I think we need a legal opinion by town council.

Ed-We are the one who determine if it is obnoxious use.  It would probably be a point of law for the courts to decide.

The board looked at the zoning pertaining to Obnoxious Uses which states, “Land shall not be used in any manner that is noxious, offensive, or detrimental to the public or to owners or occupants of adjacent property or prejudicial to the general welfare of the community.  A public hearing by the Board of Adjustment is required before such use is prohibited under this provision.”  
Lou feels the board was well within its right to hold the hearing in the first place.

Steve-What I’m saying, the information of RSA 432:33 Immunity from Suit, which we did not have at the first hearing I feel supersedes the town zoning, or over rides it.  This is the new information that was presented at the motion for rehearing and that is why we are meeting this evening.

Ed-Talked with Steve Taylor, Commissioner of Agric., and he said the RSA was put in primarily to prevent people from taking an established agricultural business and making a complaint against them.  There is a 1 year period in which you can file a complaint, unless there is a change in the business.  

Steve-In the 2005 Farm Bureau Policy & Resource Booklet under Planning & Zoning RSA 672:1, III-b. “Agriculture makes vital and significant contributions to the food supply, the economy, the environment and the aesthetic features of the state of NH, and the tradition of using the land resource for agricultural production is an essential factor in providing for the favorable quality of life in the state.  Natural features, terrain and the pattern of geography of the state frequently place agricultural land in close proximity to other forms of development and commonly in small parcels.  Agricultural activities are a beneficial and worth-while feature of the NH landscape and shall not be unreasonably limited by use of municipal planning and zoning powers or by the unreasonable interpretation of such powers.”
I think it backs up even more the town zoning, in this instance, is not going to supersede the state RSA’s on the Right to Farm and Immunity from Suit, RSA 432:33.

Ed-If this were a health issue you could look at it as an obnoxious use.  Aesthetics should not play into it.  There is not a rat or fly problem with horse manure.

Lou-Looking at RSA 432:33 there was a year’s grace period in which to file a complaint.  If the location of the pile wasn’t obnoxious for 4 years it’s too late now to make a complaint.  

Steve MacCleery moved given new evidence in RSA 432:33 Immunity from Suit and RSA 672:1 Declaration of Purpose, the decision of obnoxious use granted to Map 4 Lots 55 & 56 on August 3, 2005 against Map 4 Lot 58 is reversed.
Jeff Jordan seconded.

Lou Barker-Yes
Steve MacCleery-Yes
Ed Meehan-Yes
Jeff Jordan-Yes
David Dobson-Yes

Motion carries 5-0.

Respectfully submitted,

Holly MacCleery, Secretary
Chichester Board of Adjustment

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