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Board of Adjustment Minutes 09/17/2008
SEPTEMBER 17, 2008
Case #221-Mark Drew, Map 4 Lot 167B, Appeal From an Administrative Decision of the Selectmen pertaining to Article II, Section D. #6. e. i.  Applicant is conducting a business; storage & sale of landscaping materials without site plan approval of the Planning Board.  Property is located on Horse Corner Road.
Voting Members Present:  Edward Meehan, Chairman; Ben Brown; Mark McIntosh; David Dobson; Richard Millette.
Alternate Members:  David Hartley, Tom Wainwright.
Applicant:  Mark Drew
Others:  Selectman Stephen MacCleery, Jamie Pike, and Robert Shaw.
Mr. Drew was not quite sure what he was in violation of.  Selectman MacCleery stated that a complaint had been made to the office that a business was being run on Mr. Drew’s property without site plan approval from the Planning Board.  Under Art. II, Sect. D. #6. e. i. it states the general requirements of any development or expansion or change in impact.  On 7/10/08 Mr. Drew did go to the PB but didn’t continue the process. (Copy of PB minutes on file)  The Selectmen sent a letter of violation afterwards and feel that is what Mr. Drew is appealing.
Mr. Drew stated that he was unclear about the chain of command.  He felt the Selectmen issued permits and feels the scope of the PB is for development, which he has not done on his property.
Ben Brown said that the ordinance goes beyond development of the land.  It is the PB role to determine change in impact.  The July PB minutes state that Mr. Drew is willing to work with the board and would either cease the operation or move forward with the site review process.  Mr. Drew added that he didn’t feel the PB was handling things properly and therefore didn’t return to the board.  Also, Weaver Brothers used the property for storing & selling their product to the State of NH without any permits and nothing was ever said about it.
Mr. Drew informed the board that firewood is now being sold from the property and will be for the next 6 months.  Bark mulch is no longer being sold.  What authority does the PB have until he develops the property?  There have been no improvements to the property.
Selectman MacCleery said that in the past there were no zoning violation complaints made.  Now there have been & the BOS needs to follow through.  Different businesses can have certain things waived by the PB, but you have to go through the process.
BOA comments-dealing with issue if this is a business or not; it could be that the business is the change; commercial product is being sold; it is an allowed business for the zone.  The definition of a business is an occupational trade, sale of goods to make a profit.
Mr. Drew said he has used the property since 1999 for gravel.  Now he is selling bark mulch, firewood, etc.  He wanted to know what the people mean by “impact”.  The board stated that it could be as simple as what you do on your property.  There isn’t any impact to town services but traffic could be impacted as well as lighting if business has evening hours.
Selectman MacCleery asked the board to refer to pg. 54 of the zoning for the definition of Commercial Use.  The PB feels there is a business on this property & Mr. Drew hasn’t been back to them for the PB to determine the scope of his site plan & requirements.  Mr. Drew couldn’t believe that if he was just processing firewood that he needed to go to the PB.
The BOA asked if all materials were gone from the property.  Mr. Drew still has loam, compost & bark mulch on the property but is planning on selling only firewood.  The board feels there may not be much that he needs to do if he goes back to the PB.
At this time Selectman DeBold arrived to address the zoning violation.  He also referenced pg. 10 of the zoning stating the change in impact, change in the use of the property.  Noise to abutters, drainage, and traffic all should be addressed.  The lot sat as an open piece of property for a long time, now concrete structures have been added which can change water flow.  The general feel of the PB is that there was a change of impact on the property.
Selectman MacCleery added that a key point was being overlooked pertaining to the zoning article on pg. 10.  It clearly states that “Any development or expansion or change in impact (as determined by the PB) of use of tracts for any other use other than a single family residence shall require: Site Plan Review by the PB etc.”
Mr. Drew was asked if he had an occupancy permit to which he answered, no.
Can’t see sufficient information to overturn the Selectmen’s decision.
The use of the property is an agri-business but it is not exempt from zoning.
The degree of impact could be argued but something has been going on with the property.  If there is a change of impact, site plan review is needed.
Not much site plan may be required but you need to go to the PB to find that out.
Several things have been tried on the property and the town shouldn’t stand in his way but he should go through a preliminary site plan.
If the PB requirements are too strict Mr. Drew can appeal to the BOA.  (This statement was later clarified that any appeals pertaining to PB site plan or subdivision regulations cannot be appealed to the BOA but must go directly to the courts.)
Ben Brown moved to deny the Appeal From an Administrative Decision of the Selectmen against Mr. Drew to Article II, Section D. #6. e. i. because it is within the right of the Planning Board, due to the ordinance, to require a site plan review since the description of the ordinance includes “determined by the Planning Board.”
It is further recommended to the Board of Selectmen to be more accurate in wording of letters pertaining to precise zoning violations.
Motion seconded by Mark McIntosh.

Ben Brown – Yes
Ed Meehan – Yes
David Dobson – Yes
Richard Millette – Yes
Mark McIntosh – Yes

Motion carries 5-0.  Request is denied.
Respectfully submitted,

Holly MacCleery, Secretary

Edward Meehan, Chairman
Chichester Board of Adjustment

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