BOARD OF ADJUSTMENT MINUTES
NOVEMBER 11, 2009
Case #224A-Motion For Rehearing to consider BOA’s decision of 9/23/09 Town of Chichester v. Richard & Cheryl Noonan violation of the Town Zoning Ordinance.
Members Present: Mark McIntosh, Chairman; David Dobson; Richard Millette; David Hartley.
Selectmen: Steve MacCleery, Jeff Jordan, Richard DeBold.
The BOA read the Motion for Rehearing submitted by the Selectmen as well as the section from the BOA Handbook pertaining to rehearings.
#1 of the motion stated that the BOA had made errors of law when it ruled that Appellants were not using their trailer in violation of zoning. According to testimony the trailer in question was being used more for recreation rather than logging purposes. It was stated that the logging permit expires in March and that and extension could be asked for.
#13 of the motion says by reversing the Selectmen’s decision, the BOA committed legal errors. Article III, Section C.5.a. states that a single trailer and/or mobile home owned by residents & stored or parked during periods of non-use on the premises of the owner can be permitted by the Building Inspector.
#17 points out that the Appellants’ use of property does not fall under Section D because the trailer is not being used exclusively for logging operations. The evidence shows that the trailer itself is used for recreational occupancy and dwelling purposes.
Mr. Dobson feels that Section 5.b. allows for the temporary use of a trailer for logging purposes.
Mr. Millette stated that there is a difference having a trailer on your property with access to septic & water versus having a trailer out in the woods. Zoning allows for use while logging but not domestic.
Mr. Hartley agrees and feels there is evidence for a rehearing.
Mr. Dobson further commented that the trailer is mainly used for the logging operation and is used occasionally for sleeping, he doesn’t see the difference.
Selectman DeBold was given permission by the chairman to speak. He explained to the board that they cannot change what is said in zoning. It has to be looked at as it is written, not what we would like it to say. You have to see how the zoning reads versus what they are doing. This exceeds what the zoning states. It is the BOA’s duty to make rulings on zoning as it is written and not by personal feelings. Personal opinions were interjected at the first hearing.
Mr. Dobson feels this is a common sense ordinance and you have to look at the intent. Is it a violation they are cutting lumber, spend the night and cut again the next day?
Selectman MacCleery added that the Selectmen feel there is an error in law by interpreting the zoning. In the dictionary the definition of a camp is not a trailer. In 1962, when zoning was written, the era of logging was much different than it is now.
Selectman DeBold further stated that the BOA ruled the trailer could be used under Art. III, Section D. Portable Camps. Applicant should have gone for a variance in order to use a trailer for logging purposes.
Chairman McIntosh pointed out that in Section 5.b. the word “logging” is mentioned.
Mr. Dobson feels in his opinion, under 5.b., the trailer can be there. Proper sanitary requirements were met even though there is no well or septic system.
Selectman DeBold read how 5.b. is written with the use of commas. Temporary use of a trailer for whom a residence is being built, or as an office, storeroom or showroom, in connection with construction work or in connection with logging operations. A house is not being built on this property nor is the trailer being used as an office, storeroom or showroom.
Mr. Dobson further stated that the notice of violation letter was for a trailer being used as living quarters. He still does not feel they are in violation of anything.
Mark McIntosh moved to grant a rehearing based on the information presented in the petition. Motion was seconded by David Hartley.
VOTE ON MOTION
Richard Millette – Yes
David Hartley – Yes
Mark McIntosh – Yes
David Dobson – No
Motion carries 3-1.
Board went over their budget for 2010. It was decided to leave Zoning Expenses at $500.00, Legal Expenses at $2000.00, Zoning Mileage at $200.00 and decrease Secretarial from $1500.00 to $1000.00 as the Secretary will not be asking for a raise this year.
Holly MacCleery, Secretary
Mark McIntosh, Chairman
Chichester Board of Adjustment