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Board of Adjustment Minutes 09/23/2009
CHICHESTER BOARD OF ADJUSTMENT MINUTES
SEPTEMBER 23, 2009
Case #224-Richard & Cheryl Noonan, Map 3 Lot 36, Appeal From an Administrative Decision of the Selectmen for a camper on their property-Article III, Section C.5.(b).
Members Present: Mark McIntosh, Vice Chairman; David Dobson; Ben Brown; Richard Millette; David Hartley.
Applicants: Richard & Cheryl Noonan & family
Selectmen: Stephen MacCleery, Jeff Jordan, Richard DeBold
Others: Allan Mayville, Wayne & Janice Lefleur & family, Dayle Johnson & family

Meeting was opened by Mark McIntosh who went over the rules of procedure for the evening.
 
Case was presented by Mrs. Noonan.  She thinks she was pretty clear in the letter that was sent to the Selectmen on Aug. 31, 2009 in regards to what their stance is.  (Please note that the letter was dated 7/31/09 instead of the actual date of 8/31/09)
Mr. Brown-Is there anything you want to add to what you’ve submitted?
Mrs. Noonan-Do you have any questions about what we are doing?  I think that is what we are here about.  According to the letter we received, the impression we are under, is that we have a trailer sitting on our property.
Mr. Brown-I’m guessing that the Selectmen are going to fill in what they think you are doing.  Why don’t you tell us what you are doing.
Mrs. Noonan-We are working up on the land, we have a camper & a timber permit.  My husband is cutting wood.  My intention is to do agriculture things.  I want to plant fruits, vegetables & berries.  This is more my idea than my husband’s, I want a camper out there so my foster daughter and I can have a place to change from street clothes to work clothes and then back again.  So we will have a place to clean up that is sanitary.  We have a sanitary facility to our toilet & a place to do dishes if I do any cooking.  That is the primary use of the camper out there.  Also, my foster daughter has a lot of issues, which I don’t think I need to go into, but at times she needs to have four walls, she needs that security.
Mr. Brown-How much time do you spend out there?
Mrs. Noonan-Not that much time.  We go out once in a while occasionally on weekends, once in a while.  We have stayed overnight.  My husband is out there all the time.  My foster daughter & I are out there basically some weekends if it’s nice.
Mr. Brown-By out there, living out there or working during the day?
Mr. Noonan-Working on the land out there,4-5 hours a day.
Mrs. Noonan-We are not living out there.  We checked before we did anything.  We checked the zoning ordinances and according to what we read, we were perfectly fine in putting a camper on our property.  Also, in the letter we received we noted that the Building Inspector concurred with us about the zoning ordinance. (Letter from the BI dated 7/21/09  in file)
Selectman MacCleery-We received opinion from town council which states “The Town’s Zoning Ordinance is a “permissive” ordinance, which means that uses that are not listed under a particular zoning district are prohibited.  See Windham v. Alfond, 129 N.H. 24, 27 (1986) (“In the absence of a variance or special exception, such an ordinance functions generally to prohibit uses of land unless they are expressly permitted as primary uses or can be found to be accessory to a permitted use.”)  The Zoning Ordinance addresses the permitted  uses of trailers, mobile homes and manufactured homes in Section (C)(5)(b).  This provision allows the use of a trailer as a temporary dwelling only when a residence is being constructed on the property.  A trailer can also be used as an office, showroom or storage area for construction or logging projects.  Given the nature of the Town’s Zoning Ordinance, a trailer cannot be used on the subject property for temporary dwelling purposes since it does not satisfy Article III, Section (c)(5).
        As a result, to the extent the landowner wishes to use property for the proposed use, he or she will need to apply for a use variance from the Zoning Board of Adjustment. (Letter in file)
I noted that the trailer was being used as a logging camp, they do have a permit.  I did note in their letter they are also using the trailer for recreation.  It is one thing to use it for logging, I kind of doubt that it can be used for agriculture, I don’t know that one.  Presently, where it is used as a use of logging camp/recreation, we don’t feel that it fits our zoning.  There is no house there, no building permit for a house to be constructed.
Mr. Brown-If you look at the logging portion of it alone, is that permitted?
Selectman MacCleery-I believe so, under logging camp.
Mr. Brown-Under Article III, Section C. 5.a. “Recreational trailers and vehicles are exempt.”, what does that mean?
Selectman DeBold-I believe that section is talking about storage of trailers.  If you owned a camper or something you can store it on your property.
Mr. Brown-If I had a camper on my property & my kids wanted to spend the night in it, they wouldn’t be allowed?  Or if I wanted to spend the night in it, I wouldn’t be allowed?
Selectman DeBold-I wouldn’t consider that a residence.
Mr. Brown-What if it was an occasional use, like 3-4 nights in the summer or every weekend in the summer?  What if someone had a camper trailer set up on their property with a deck out in front of it?
Selectman DeBold-Are you going to use your state approved septic system?  There was another issue here about concern of the septic.  The larger intent of this zoning ordinance under (b) “providing that such use is shown to be a temporary expedient and also that the use will conform with sanitary protection requirements”.  I think that enters into it a little bit here.
Mr. Brown-Your letter to them says they are in violation of Art. III C.5.b. and their response said that C.5.b. doesn’t apply to them because they are doing logging & occasional recreation and they were covered under C.5.a & Section D.  Did you respond to that in any way?  Did the Selectmen respond to them about that?
Selectman MacCleery-I don’t believe that we responded to them.  At that point the appeal process was starting.  I believe the dates were so close, the appeal process had already started and at that point we did not respond to anything.
At this time it was clarified that the letter from the Noonan’s to the Selectman should have been dated 8/31/09 and not 7/31/09.  It was received in the Selectmen’s Office on 9/1/09 and the application to the BOA was mailed on 9/3/09 & received by the secretary on 9/5/09 by Certified, Return Receipt.
Mr. Brown-(To the Noonan’s) Why didn’t you allow them to respond to your letter before you submitted an appeal.
Mrs. Noonan-We did.
Mr. Brown-It looks like it is only 4-5 days after your letter.
Mr. Noonan-There were only 14 days for us to remove the trailer.  Wouldn’t five days been enough time for them to respond to us?
Mr. Brown-It depends on how the calendar goes.  They meet once a week, I don’t have an answer for that.  That answers the question, if you have 14 days to respond or 30 days to file an appeal, you are fairly limited to what you can do. (To the Selectmen) Now that it has been 3 weeks since you have received this letter has there been any response to it?
Selectman MacCleery-We have not met & discussed the letter.  The appeal process had already started.  When the appeal process starts, everything else stops until you go through litigation.
Mr. McIntosh-What are you using for a septic system at this point on the property or a sanitary station?
Mrs. Noonan-It isn’t pretty but it is EPA approved.  We have green bags with tablets & we dispose of it every time it’s used.
Mr. McIntosh-You are taking it off the property or disposing of it on the property?
Mrs. Noonan-Any time we use it we put the green bag in the trash.  When we leave, the trash goes with us.
Mr. Brown- There are no pits dug on the property?
Mrs. Noonan-Absolutely not.
At this time the board reviewed the pictures that were taken by the BI. (Hose going into the ground)
Mrs. Noonan-That, we did have, for gray water.  It was dish water & water for cleaning up.  We have since stopped using that.  We now have a 5 gallon bucket which is filled with rocks & sand and we have a tube going into that.  It is used so seldom, it is gray water only.
Mr. McIntosh-Basically, it is a miniature dry well.
Mr. Dobson-In the letter from the BI it says that a privy or mini drywell are allowed without running water, does that apply to this?
Abutter Dayle Johnson-When they started this, Mr. Noonan knocked on my door and told me he was building a road to his site.  All summer long that road has not been built.  All they did was open up the right-of-way.  They are camping in the woods, they have generators.  This is a campsite as far as I’m concerned.  I have trouble accessing my property.  In the beginning I tried to work with them.  I let him park his equipment on my property so that no one would steal it but it has gotten out of hand.
Mr. Brown-Does their land cross yours through a right-of-way?
Mrs. Johnson-They have contacted a lawyer and have told me that I can’t use my right-of-way at all so I can’t go home.  I had to hire a lawyer yesterday so I can have access  to my house.
Mr. Brown-Looking at the map, there is a 50’ right-of-way just east of lot 39 that takes you back to lot 40A.
Mrs. Johnson-I am lot 39, apparently I don’t have a driveway, it’s a right-of-way.  I don’t own any land on the other side of the right-of-way.
Mr. Brown-Access from Route 4 is through the right-of-way.
Mrs. Johnson-I’ve been told that I can’t use the right-of-way to get to my house and this all came about because I said I didn’t want a campsite behind my house.  That right-of-way has been used ever since I’ve lived there.  I received a letter from the Noonan’s attorney, I called him & he told me that if I step foot on the road way I could be arrested for trespassing. (Letter from Attorney David Tardif in file)
Mr. Brown-Does your property have any other allowed access from Rte. 4 from the state?
Mrs. Johnson-Absolutely not.  The state put that access in when the property was built in 1986.  I bought it in 2001.
Mr. Dobson-Do you have boundary pins on your property?
Mrs. Johnson-When I was approached about them building a road they didn’t do a certified survey.  Mr. Noonan came by with some kind of a wheel and showed me where the back of my property was but he said he couldn’t find any metal stakes in the front of the property.
Mr. Brown-I don’t think this topic is relative to what we are here for tonight.
Mrs. Johnson-To me this is a permanent campsite.  They have decks, trailers, some kind of a stockade, generators.  This has been going on just this summer.
Mr. McIntosh-Have there been overnight stays?
Mrs. Johnson-Yes, I assume.  They are parked in the right-of-way at night & are still there when I get up at 5AM.
Selectman MacCleery-How many acres are in this logging operation?
Noonan-10 acres.
Mr. Brown-Is 10 acres the size of your property or the amount you are logging?
It was stated that they are logging both the property & the right-of-way.
Selectman MacCleery-How much of this operation has been completed?  In our zoning it is allowed “temporary & expedient”.  Pg. 19 of the zoning regs. Under 5.b “Providing that such use is shown to be a temporary expedient and also that the use will conform with sanitary protection requirements.”  When you look at Section D. Portable Camps “Exceptions may be the use of portable camps for logging operations.”  We don’t know anywhere in zoning that this is allowed for agriculture operations, just logging operations.  The recreation part does not comply with zoning and also if they want to start raising berries and different things, that’s agriculture not logging.  Temporary use for logging.  Logging 10 acres is not going to take years, how long does it take.  You have to renew your permit every year in April.
Mrs. Johnson-Don’t know what is left to cut.  It is pretty much all cut, looks like a bomb struck up there.
Mrs. Noonan-The only thing that has been logged so far is the right-of-way.  Would like to address District RA-Permitted Uses on pg. 4 of the zoning.
BOA stated that this does not apply to this case.
Mr. Brown-Have you started any agricultural projects up there at this time or are you picking berries that grow wild?
Mrs. Noonan-Just getting the land ready to do it next year.  No agriculture going on right now.  We are not up there permanently.  We are up there occasionally, we have used it occasionally for recreation.  By recreation I mean we use the BBQ.  This cannot be perceived as a permanent situation.  Also, it is very sanitary.
Selectman DeBold-We have two different things going on in the same area.  Is this the trailer that has a full deck in front of it?  To me that shows intent of long term, not temporary & expedient for a logging operation.
Mrs. Noonan-There is a deck but no foundation or footings.
At this time Mrs. Noonan clarified for the board which of the pictures submitted by the BI were of their property versus the abutting property.
BOARD DISCUSSION
Mr. Brown-I don’t see where they are in violation of anything, in my personal opinion.  They have a logging operation with a timber permit & a logging operation is allowed to have a portable camp.  In Section 5.a. it states that recreational trailers are exempt, not sure what that means, but to me it implies that if you own a piece of property and want to put a recreational trailer/camper, you can do that.  I see that all over town.  People who have campers put them on their property and use them.  Don’t know if they use the bathroom inside of them or not.  Assuming that they are accurate in saying they don’t have a septic system installed on the property, think the BI stated that, I don’t see anything wrong.  They are not doing anything that violates our zoning.  I haven’t heard anything here that says they are.
Board referred to letter from town council Matthew Serge to the Selectmen pertaining to this case. (In file) “I am writing in response to a request for an opinion regarding whether a landowner has the right to use property in the Town of Chichester for the temporary location and occupancy of a recreational trailer.”
Mr. Hartley-Define occupancy.
Mr. Brown-Occupancy sounds more like a permanent dwelling as opposed to a weekend, occasional usage.  If I had a camper on my property and wanted to go out and sleep in it every weekend,  I would have a hard time if somebody told me I couldn’t.
Mr. Millette-Are you talking about a piece of property you live on or a piece of property somewhere else?
Mr. McIntosh-This is talking about your own property.
Mr. Brown-I guess either one, whether you have a house on it or not.
Mr. Millette-I think it makes a difference because of the facilities you have in it, water & sewer.
Mr. Brown-They address that somewhat with EPA approved gray water facility and they take toilet use off site.  They don’t have a well or septic.
Mr. Millette-Sounds to me like we have two complaints there.
Mr. Brown-The appeal is from the admin. decision from the letter of the Selectmen that talks about III. C.5.b. and in their notice of violation they refer to a permanent residence.  Based on the information they provided, and no arguments from anyone else stating opposite, I would not call that a permanent residence
Mr. Dobson-There is nothing permanent about this situation.
Mr. Hartley-I agree with Ben, doesn’t seem there is anything permanent to me.
Mr. Brown-In the letters there is talk about current land use status and land use change, from the BI to the BOS dated 7/21/09 it states that the assessor is addressing the current use status issues separately.  While there may be current use issues that arise from this situation, I don’t think they need to be addressed here tonight.  They are appealing this notice of violation so it needs to be confined to the information provided by the Selectmen to the Noonan’s in this notice of violation which says they have a permanent residence in violation of 3.C.5.b.
Mr. McIntosh-Along with a permit which is good until next April for logging.
Mr. Brown-They have a timber permit, good until next April and portable camps for logging operations are acceptable.  The recreational part, there is nothing explicitly written down.  You drive around town & there are a lot of campers in a lot of places in the summer time.  There would be a lot of people in violation, maybe we are all in the wrong here.
Mr. Millette-Isn’t this a change of use?  It’s a change of use with the property.
Mr. Brown-Very possible.  Logging is allowed in CU but is not an issue for this board.  Logging is not always a clean, pretty operation.
MOTION
Ben Brown moved to find in favor of the applicants Richard & Cheryl Noonan Appealing The Administrative Decision of the Selectmen in regards to the camper and logging operation on Map 3 Lot 36.  The notice of violation provided by the Selectmen refers to Article III Section C.5.(b) and testimony before us is clear that this ordinance does not apply.  Applicable ordinance would be Article III Section D & Article III Section C.5.(a).  Motion seconded by David Dobson.
VOTE ON MOTION
David Hartley – Yes
Richard Millette – No
Mark McIntosh – No
Ben Brown – Yes
David Dobson – Yes
Motion carries 3-2.
After the public hearing the board had election of officers.  Ben Brown nominated Mark McIntosh for Chairman.  Steve MacCleery seconded.  All voted in favor of Mark for Chairman.  Mark McIntosh nominated Ben Brown for Vice Chairman.  Richard Millette seconded.  All voted in favor of Ben for Vice Chair.
Respectfully submitted,

Holly MacCleery, Secretary

Mark McIntosh, Chairman
Chichester Board of Adjustment

At the request of the Selectmen, the minutes were transcribed from the taped public hearing.


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