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Board of Adjustment Minutes 03/29/2006
BOARD OF ADJUSTMENT MINUTES
MARCH 29, 2006

Case #196-Selectmen appealing the Administrative Decision of the Building Inspector for a permit issued to Teresa & Gerald Paradis/Live & Let Live Farm, Map 1 Lot 28, to construct a riding arena in a residential district according to Article II, Section D of the zoning ordinance.

Members Present:  Edward Meehan, Chairman; Mark McIntosh; Ben Brown; Jeff Jordan; Lou Barker; David Dobson; Tom Wainwright; Steve MacCleery, Ex-Officio.
Steve MacCleery stepped off the board as he was presenting the case for the Selectmen.

Voting Members:  Ed Meehan; Mark McIntosh; Ben Brown; Jeff Jordan; David Dobson.

The Building Inspector was not present at the meeting.

Chairman Meehan made it clear that the BOA is not voting on whether Live & Let Live can have a riding arena, they are just voting on whether the petition to revoke the building permit and have them go through a site plan review is going to occur.

Selectman Stephen MacCleery presented the Board of Selectmen’s facts pertaining to this case and the reasons why they feel the building permit needs to be revoked.

        “The Board of Selectmen has been concerned about the growth in its business activities.  (Live & Let Live)  
        What started as a very modest and worthy undertaking, has turned into a major business in this community, bringing with it all of the common concerns regarding traffic, parking, congestion, drainage, the overall development of the property, and its effect on nearby properties.
        Back in November of 2005 we suggested that it would be helpful for the Paradis’ to meet with the Planning Board to discuss the development of their business.
        The Board has received several complaints regarding the amount of traffic being generated by the business.
        The latest proposal to construct a 74’ x 180’ (13,320SF) riding arena confirms the concerns of the Board and the residents in the area.
        The very purpose of the zoning ordinance, as contained in its Preamble at Article I, is to minimize congestion in the streets, prevent overcrowding of the land, and promote the health, safety and general welfare.
        The Building Inspector made an error as a building permit cannot be issued until the development proposal has undergone site plan review by the Planning Board.
        Our citizens have given the Planning Board site plan review authority.
        The statute, RSA 674:43, applies site plan review to all “development, or change or expansion of use of tracts for non-residential use.”
        A 74’ x 180’ riding arena is definitely a non-residential use and definitely represents an expansion of the current use.
        The entire planning process is geared toward the proposition that abutting property owners should have an opportunity to comment upon subdivisions and non-residential development.
        The building permit must be revoked and Live & Let Live Farm must submit an application for site plan review to the Planning Board.
        The Board of Selectmen believes that this use has become a full-blown business in the Residential and Rural/Agricultural zones, and questions whether it is a permitted use under the zoning ordinance.
        If you look at the provisions of the zoning ordinance governing the Commercial Industrial or Commercial Village Districts, you will see that proposed business uses are subject to site plan review.
        If you look at the provisions governing the Residential and Rural Agriculture Districts, there is no reference to site plan review.
        That is because the zoning ordinance does not contemplate business uses of the sort existing and proposed on the Live & Let Live Farm property.
        The use of the property is in violation of the zoning provisions governing farming.
        Farming of land is permitted in both the Residential and Rural Agriculture District.
        In the Residential District, an owner may also “keep livestock and poultry for personal use.”
        The keeping of livestock beyond personal use in the Residential District requires an owner to apply for a variance for animal husbandry and keeping of poultry.
        In this case, the extent of the current and proposed use is far beyond “personal use” and the Paradis’ have not secured a variance from the BOA.
        Furthermore, in contrast to the Residential District, the Rural Agriculture District does not address the keeping of livestock, for personal use.
        In NH the rule is: All uses which are not specifically provided for in the zoning ordinance are prohibited.     
        As the ordinance does not expressly provide for the keeping of livestock in the Residential District, it is not permitted.”

The board asked when the Building Inspector issues a permit how does he determine whether or not the applicant should get one.  What investigative work is done before a permit is given?  How is it determined if they need to go to the Planning Board for a site review?

Selectman DeBold stated that he goes by the zoning and has done a good job.  In this instance there was miscommunication between the Selectmen’s office and the BI pertaining to this case.  A building permit was given after communications with Live & Let Live and the need for site plan review, had already started.  Copies of the communication between the Selectmen and the Paradises were not given to the BI so he was not aware of the concerns.  Selectmen Colbert stated that the BI thought because this was a non-profit organization that there wasn’t a problem because it wasn’t a commercial venture.

Teresa Paradis wanted the board to know that Live & Let Live Farm is a non-profit, charitable organization that rehabilitates horses.  The arena will be built in the design of an indoor but it is a rehabilitation building for the benefit of rehabilitating needy animals year round.  It is not for the purpose of a “riding arena”.

There is another therapeutic riding program getting started in town, Field of Dreams, and they are going through site plan review with the Planning Board.  Since Live & Let Live has not done this, Teresa was asked if she thought they should not have done that.  Teresa said she had no idea what they were doing as she is not affiliated with them.  They get paid for what they are doing but Live & Let Live does not.

Graydon Braley, abutter and on Board of Directors for Live & Let Live, asked if the therapeutic facility was a 501-c3 charitable organization or just a non-profit.  If someone made a donation could they take it as a tax deduction?  He was told yes, they could.  He also had a concern that the information presented by the Selectmen was not given to Live & Let Live Farm before this evening.  The only thing they received was a notice to appear at a BOA public hearing.  There isn’t a letter that tells in detail, what the zoning violations are.

Teresa said that the 1/10/06 letter from the Selectmen states that they “may” be in violation of current zoning but did not tell them what violations.  She sent a letter back requesting what they “may” be in violation of and never received an answer.  

Selectman DeBold said they didn’t specifically say which zoning ordinance they were in violation of just that they may be in violation of current zoning due to the size and growth of Live & Let Live Farm.  In two separate letters they were requested to go before the Planning Board and discuss with them any possible violations and the need for site plan review, which they did not do.  Selectman Colbert added that they were invited on two occasions to meet with the Selectmen to discuss their concerns, which they did not do.  Selectman MacCleery stated that they have not resolved any potential zoning violations and that is why they are asking for the building permit to be revoked.

Sharon Morey, on Board of Directors for Live & Let Live Farm, feels that they have gone through the proper channels by getting a permit to put up the building and not just building it without one.  After Teresa sent a letter asking the Selectmen to tell her what violations they may or may not be in violation of, she did not receive any further correspondence.  

At this time Selectman MacCleery pulled the file for Map 1 Lot 28 to clarify what letters were sent and who signed for them.
Time line of events:
  11/22/05-Letter to Mr. Paradis stating Live & Let Live Farm may very likely be in violation of current zoning and request they contact the PB as soon as possible to discuss the possible need for a site plan review.
  1/10/06-Letter to Mr. Paradis, sent registered, return receipt, which he signed for, stating that this is the second correspondence saying that Live & Let Live Farm may very likely be in violation of current zoning and request that they contact the PB by Feb. 5th to discuss the current business and the possibility for a site plan review.
  2/3/06-Teresa Paradis went to the Building Inspector and was given a permit for an arena.
  2/4/06-Teresa Paradis sent letter to the Selectmen requesting a copy of the zoning they may be in violation of.
  2/9/06-Letter sent to Teresa Paradis, sent registered, return receipt, which she signed for on 2/10/06, stating that the Selectmen had been made aware that a building permit was issued to Live & Let Live for an indoor riding arena.  The board felt this was done in error and urged her not to proceed with the construction until the matter was addressed with the Board of Adjustment.
  2/28/06-Cover letter to the BOA requesting an Appeal from an Administrative Decision.
  3/3/06-Receipt of completed application.
  3/29/06-Date of public hearing.

Teresa said that even though she signed for the 2/9/06 letter the one on file isn’t the one she saw.  Possibly a different letter could have been in that envelope.

Heather Evans didn’t understand the basis for the meeting since all the people who showed up were in support of Live & Let Live.  There is no one here that objects to this use.

She was informed that just because no one objects doesn’t mean you can do what you want without going through the proper channels with zoning.  It is the Selectmen’s job to uphold zoning and it is their right to appeal this decision.

Mr. Braley wanted to clarify that this was not really a business, as the Selectmen stated.  This is a non-profit, charitable rescue operation.  They are not selling anything or making any money.  This is not a retail business; no one is coming to buy anything.  The people coming to the farm are donating their time and labor.  We have quite a few horses that are in poor health, they need to be exercised regularly and that is the purpose for the arena.
The board asked if the farm purchased goods and services for maintaining the animals.  They do have to purchase hay and feed through donations.

Selectman Colbert commented that other horse establishments in town should not be the issue here.  Live & Let Live is beyond having a couple of horses for personal use in the residential zone, which a majority of this lot is.  Right now this is a non-profit organization but it could be sold in the future and with no site review plan on file there would be a huge problem for the town.  The zoning maps were established in the early 1960’s which show this lot being zoned mostly residential.

Matt Crannell, abutter, asked if a lot is zoned both residential and rural agric. how do you determine which zone to enforce?  He was told by looking at the map it shows where the dividing line is on the property and the majority of which zone.

Sharon Morey wanted the board to know that if the permit gets revoked it would put a hardship on the facility and that this is clearly a non-profit organization.
Selectman DeBold reiterated that non-profits in other towns, as well as ours, still need to conform to zoning.  No one is sure where the arena is going to go and that is why a site plan review with the PB is being required, as well as addressing any other possible zoning violations.

Selectman MacCleery showed the board the return receipt cards for all the letters that were sent to the Paradis’/Live & Let Live Farm.  Teresa said she never saw the letter dated 2/9/06 even though she is the one who signed for it.  She said that the contents of the letter was the one dated 1/10/06.  The letter dated 1/10/06 was received on 1/12/06 by them and signed for by Diane English, who is a volunteer.  

The board asked Teresa since the contents of the 1/10/06 letter, which she states she saw, requested they contact the PB by Feb 5th to discuss the current business and the possibility for a site plan review, who went to the BI requesting a permit for the arena on 2/3/06?  Teresa said she did and that a letter was sent to the Selectmen dated 2/4/06 requesting they tell her what codes they were in violation of.  It was asked if she told the BI that she had received a letter requesting her to go to the PB.  She only told him what the building was going to be that she had received a donation for.  The BI pulled out a map and she showed him where the building was going to go.  It was asked who the owners of the property were and she replied, herself and Mr. Paradis.  Gerald said he only signed for one letter, which didn’t pertain to him, and he turned it over to the farm.  He is only a worker/volunteer.  Teresa further stated that no one owns the business, it belongs to the people.  The non-profit organization is run by a board of directors of which Teresa is the chairman.  The building permit, dated 2/3/06 was made out to Teresa & Gerald Paradis/Live & Let Live Farm and signed for by Teresa Paradis.  She said that the BI put Gerald’s name on it and she added Live & Let Live Farm.  She received $150,000 and felt she needed to obtain the building permit as soon as possible.  There was a question about the farm being incorporated and she said it was, under Live & Let Live Farm Incorporated as a 501-c3 charitable foundation.

The BOA agreed that when funds are received they need to be acted upon but when you receive a letter from the Selectmen saying that you may be in violation of zoning laws, as chairman of the Board of Directors, you need to respond to that as well.

It was clarified that Teresa was the Executive Director and someone else is the chairman of the board.  It was stated that Teresa has the legal ability to sign for the permit on behalf of the board.  There was a different chairman of the board back in Nov. 2005 who apparently didn’t respond to the Selectmen’s request.  Sharon added that months fly by and with the amount of hours being put in each day that it is entirely possible for letters to go unnoticed.

The BOA asked if the building plans were looked at by the life safety inspector.  Teresa said she wasn’t aware that they needed to be and if they were why the BI didn’t tell her.  She feels that he should have been present at the meeting to answer questions as well.  Selectman MacCleery said by going through site review with the PB all this would have been addressed.  The BI issued the permit not knowing there was correspondence between the Selectmen and the Paradis’.  Selectman DeBold added that the BI told them that if he had known that this was a concern he wouldn’t have issued them the permit.

The BOA has concerns that the two letters sent by the Selectmen requesting Live & Let Live Farm go before the PB were not taken seriously and a building permit was obtained anyway.    Questions have been raised, which we don’t have the answers to.  Therefore, a site review is needed.  The request, by the Selectmen, is to pull the building permit in order to insure that a site review happens.  The result of the PB discussion may reveal that everything is in order, a site review is not needed, and the permit can be reissued.

BOARD DISCUSSION
Mark-If we rescind the permit, how long is the process to go through the PB, see the Selectmen and reapply for the permit?

Ed-About 1-2 months depending how soon they get on the agenda for the PB.

Ben-On page 9 of the BOA Handbook it states that “there are no specific criteria for an administrative appeal as with a variance or special exception.”  We base our decision on the evidence before us.

Lou-The pertinent issues go back to the BI when he met with the applicant of the building permit.  Did he check the zoning?  Does he have a reasonable threshold before he refers an application to the PB?  These are the merits we should be discussing not necessarily the merits of the enterprise.

Mark-I would have thought with a building of this size that the BI would have visited the property.

Ben-Are we here to debate the mistakes that he made?

Lou-I think so because the Selectmen are appealing his decision.

Ed-Everyone makes mistakes.

Jeff-I visited the property myself and I think the scope of this is way overrated.  Some horses are there with a few small barns.  This comes down to the competency of the BI, who has made many errors over the years.  If the Selectmen want to keep him on then they should just let this go.  

Ben-The fact that he made a mistake, the town has to suffer for?

Jeff-He is either apathetic or ignored any zoning or anything this Board of Selectmen has going on.  Generally issuing permits correctly isn’t good enough.
Ed-The Selectmen made a request to the operation and it could have been cleared up long ago.  If you’re going to have zoning you are going to have oversight to some extent.  I’m not making a comparison but the other program in town is going through site plan review and everything with the PB.  

Mark-What’s the possibility of tabling this for 30 days so they can go to the Selectmen & PB and then come back to see where they stand?

Ben-If we conclude this meeting tonight by pulling the permit, they meet with the PB or Selectmen and get everything in order they could get their permit back within a week or so.  By prolonging this for 30 days they still have their permit and would be allowed to build.

MOTION
Ben Brown moved to rescind the building permit for a riding arena on Map 1 Lot 28 owned by Gerald & Teresa Paradis/Live & Let Live Farm dated 2/3/06 for the following reasons:
  The Building Inspector did make some mistakes, but two wrongs don’t make a right.
  The land owners and Live & Let Live Farm Board of Directors were aware of possible zoning violations since November 2005.
  They appear to have ignored the request for discussions until after the building permit was requested.
  They did not make the Building Inspector aware of these issues before requesting a building permit.
Motion seconded by Mark McIntosh.

VOTE ON MOTION
Ben Brown – Yes
Mark McIntosh – Yes
Ed Meehan – Yes
Jeff Jordan – No
David Dobson – Yes
Motion carried 4-1.  Building permit is rescinded.

Respectfully submitted,

Holly MacCleery, Secretary                                      
Chichester Board of Adjustment  



Edward Meehan, Chairman
Chichester Board of Adjustment
                        




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