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Board of Adjustment Minutes 01/13/2010
CHICHESTER BOARD OF ADJUSTMENT MINUTES
JANUARY 13, 2010

Case #224-Rehearing of Richard & Cheryl Noonan, Map 3 Lot 36.  Appeal from the Administrative Decision of the Selectmen for a camper on their property under Article III, Section C. 5.b.  Property is located off of Route 4.

Members Present:  Mark McIntosh, Chairman; Ben Brown, Vice Chairman; David Dobson; Richard Millette; David Hartley.
Public:  Richard & Cheryl Noonan; Tom, Ryan & Eva Noonan; Selectman Jeff Jordan; Selectman Richard DeBold; Allen Mayville; Denise Grant; Dayle Johnson.

Mrs. Noonan referred to pg. 38 of the Zoning Ordinance and definition of recreational vehicles including campers.  This definition makes what they have on their property clearly a camper.  She claims that they definitely fall under Article III, Section C. 5.a. which states: The Building Inspector may permit: Single trailers and/or mobile homes owned by residents and stored or parked during periods of non-use on the premises of the owner.  Recreational trailers and vehicles are exempt. She feels the trailer can be stored there without a permit.

Ben Brown-The letter the Selectmen sent you wasn’t the fact that you were storing one but were using it to stay overnight in & you built a deck on it.

Mrs. Noonan-We did put a deck on it without a foundation.  What is the definition of dwelling & recreation?

Tom Noonan stated that the Building Inspector said what they were doing was okay according to the letter they received from him.

Mark McIntosh-Did he issue you a permit?

Mr. Noonan-No, because there is nothing being built out there.

Richard Millette-Under C. 5.a. trailers owned by residents, what is the interpretation?  Does that mean someone that has an existing home & wants to park a travel trailer?

Ben- The key words in the ordinance is periods of non-use.  When you are not using it you can park it on your premises.

Mrs. Noonan- What are recreational trailers & vehicles exempt from?  Am not sure what the accusations are.

Mr. Noonan-That is the reason we put it there in the first place.

Richard DeBold-Nowhere in the letter of violation from the Selectmen does it state that the Noonan’s are dwelling there.  Long term campsite was mentioned & temporary use of a trailer maintained as living quarters shall only be permitted when a permanent residence is being built.

Mrs. Noonan-When camper was first put there we stayed overnight, it was a novelty.  Stopped sleeping there long before we knew it was going to be an issue.  We use it to change clothes when we work out there, prepare meals, have a bbq, and do dishes.  This is what we mean by recreation. Everything is EPA approved.  We are using it for storage also.

Eva Noonan-What is the land zoned for?  Is it agriculture?  We took it out of current use & pay taxes on it.  Why isn’t it right, if you own the land, to put a camper on it?

Ben Brown-Our zoning doesn’t allow that.  Only to be parked for periods of non-use.

Mrs. Noonan-This is our property, we pay taxes.  If we wanted to pitch a tent & spend the night would that be against the zoning?  We want to do agricultural things.  What do we need to do with the town? The zoning does not comment on tents but is very clear about a camper or trailer.

The BOA is surprised that there has not been any communication between the Noonans and the Selectmen since September to find out what would be required to be in compliance.   Mrs. Noonan stated a registered letter was sent to the BOS but they heard nothing back from them.  Subsequently, an application was received from the BOA on 9/5/09 and all communications stopped until a decision was made by this board. Mrs. Noonan states that they did not ignore this, they never heard back from the Selectmen.  The way they interpret the zoning they are doing everything correctly.

Richard DeBold read an opening statement (on file) pointing out that the Selectmen are acting on behalf of the townspeople and enforcing the zoning they voted on.  It was requested that the BOA look at the facts of the case and the evidence & testimony presented and not act on personal feelings.  Trailers are allowed for certain uses but must be permitted by the Building Inspector.  The Noonan’s never applied for a permit nor do they have one to permit the use of a trailer under Art. III, Sect. C. 5.  Also, a trailer cannot be used on the Noonan’s property for temporary dwelling purposes since it does not satisfy any item in Section C. 5.  This use does not fit under Art. III, Section D (Portable Camps) either.  Trailers were not intended to be used as dwellings for logging operations otherwise that use would have been included in Section C.  We can only presume that a portable camp is not a trailer.

The Selectmen feel strongly that our zoning, the way it is written now, does not permit the use of a trailer in this instance on a piece of property like this.  As a recreational sleep over etc.  Concerned with proper sanitation.  Noonan’s state that they are using EPA approved products and methods for this purpose.  This is DES jurisdiction.
David Dobson referred the board to the zoning definitions under dwelling unit-two or more rooms, designed, occupied or intended for occupancy as a separate living quarter, with cooking, sleeping and sanitary facilities provided within the unit.

Richard DeBold-Section C. 5.a. clearly states the BI may permit single trailers and/or mobile homes owned by residents and stored or parked during periods of non-use on the premises of the owner.  Recreational trailers & vehicles are exempt.  Trailers, RVs, motor homes are exempt.  They can park these on their property.  They are exempt from the permitting process.  We feel the BOA erred in its decision by saying the Noonan’s fit under this section.  In Section D. there is nothing that mentions trailers.  At the last hearing “logging operation” was mentioned.  What is the validity of it?

Mr. Noonan-What do you consider a logging operation?  Subcontractor or regular contractor could do it.  He could be the one doing the logging also.

David Dobson stated that Mr. DeBold was now doing the same thing the BOA was accused of by reading more into the zoning.  You state that the exemption is for the permit in 5.a. but it says trailers & vehicles are exempt.  Mr. DeBold reiterated that one of the reasons for the BOS motion for rehearing was that there were personal feelings put into the BOA’s decision.

Ben Brown-Your opinion is that the exemption applies to the permit as opposed to the exemption applying to anything else?  Mr. DeBold stated yes, what else would you be exempt from?  Mr. Brown further commented that it could be someone else’s opinion that the word exempt applies to another part.  You could potentially be exempt from periods of non-use.  Two different opinions could be interpreted here.  Mr. DeBold further cautioned the BOA on precedence setting on this.

Mrs. Grant-The Noonan’s tried to sell their property before, they were going to put a road through.  I was told by them that they were going to be putting a road in, there is none.  Now there is a trailer with building going on up there.  If you spend several nights there is it a recreation or campground?

Richard Millette-Thinks the zoning is pretty specific.  Under 5.a. the BI may permit.  The reason they would be exempt is because it is owned by the residents.  Therefore, you have a residence established there.  If you don’t have one established then it wouldn’t be permissible.

Mark McIntosh-On a permanent residence and you had a rec. vehicle parked there, you have facilities to use and this lot doesn’t.  

Mrs. Noonan-Didn’t put the trailer there for logging purposes, and we are not dwelling there.  No one has defined their interpretation of recreation.  If you think that having a grill & a picnic out there is recreation then we can’t use our property at all?  We feel according to zoning we can park a camper there.  Mrs. Noonan further added that when the BI came to the property there were two campers at that time.  One has since been removed.

Richard DeBold-I do not agree that the Building Inspector has signed off on this as being allowed.  The BI sent the Selectmen a report dated July 21, 2009 summarizing his visit to the property which states “if it is determined that leaving the campers there is acceptable under zoning.”  He never said this was approved.  Richard further added that the Noonan’s letter dated 8/31/09 implied that they were using the trailer for their logging operation and clearing the land for agriculture use, and some recreational relief.

Ben Brown-Mrs. Noonan has made it very clear that they are not using the trailer for logging purposes.  Also, the word “recreation” was not used in the Selectmen’s letter of violation.
David Dobson asked if they considered the trailer that is on the property in connection with construction that is going on.  Mrs. Noonan said no.  The camper is on the property simply so they have a place to change, clean up while they are digging up rocks getting the property ready to plant ag. products.  Dave asked if that could be considered construction.  This could be considered groundwork.  Mrs. Noonan said they were constructing gardens as well as cutting cord wood.  Dave feels this use is allowed.  They may be in violation of not getting a permit.

Richard DeBold-In my opinion, when you read the sentence  “there can be a use of a temporary trailer or mobile home for one year if you are building a residence” or “temporary use of trailer for office, storeroom or showroom, in connection with construction or logging operations.”  There are two different things going on.  Mr. Dobson says that the way the “,” are is the way the rule reads.

BOARD DISSCUSSION
For clarification the Noonan’s are Appealing the Administrative Decision of the Selectmen for a camper on their property referring to Article III, Section C. 5.b. on their original application.

David Dobson-The Notice of Violation states that a long term campsite has been established on the parcel of land described.  A zoning complaint was brought to the board regarding the use of the property.  Upon investigation of the tax assessor & the BI it was determined that a long term campsite has been established.  I think we need to establish if that is true.

Ben Brown doesn’t think it’s the campsite that is in question but the temp. use of the trailer being used as living quarters.  We based our decision back in Sept. against III, C. 5.a. & III, D.  It was made very clear by the appellant that this trailer is not being used for logging.  It was mentioned a number of times.  I feel we made a mistake by using Art. III, Sect. D as part of our decision last time.  We need to look at III, C. 5.a & 5.b.

David Dobson stated that the article says the BI may or may not grant a permit.  If they comply with this section they should be granted one.  The BI never told them they needed a permit.  His report went to the Selectmen to deal with.

Richard Millette asked if it were relevant that the lot is backland and does not have road frontage.  It was determined, not at this time.

Ben Brown-How do you interpret the second sentence of 5.a?  In my opinion they do not fall under 5.b.  They are not building a residence.  In 5.a. I read it as construction work & logging operations only apply to the office, storeroom or showroom.  This is certainly more than an office, storeroom or showroom.  I believe they would be in violation of 5.b.  Are they exempt from the permitting process or are they also exempt from the periods of non-use?  We’ve been told that we have a zoning ordinance which is called permissive which implies that if it is not explicitly listed than it can’t be done.  If this is coming from town council, I will trust that it is correct.  This use is not explicitly allowed.  If it were, every lot in town, with or without a home, could have a camper on it being used as much as they wanted.  We have the potential to go down a slippery slope.

David Dobson-Upon review of the long term campsite, this is not living quarters in respect to long term.

Ben Brown-They have spent the night there in the past.  There is no reason to believe they wouldn’t do it again if the camper were allowed to stay there.  If it were allowed to stay there without a permit and with no restrictions with a time period then it could potentially turn into a long term living quarters.

David Dobson-You could interpret 5.b. differently with the “,” and the way the ordinance is written.

MOTION
Ben Brown moved to deny the appeal of Richard & Cheryl Noonan, Map 3 Lot 36, Appeal from the Administrative Decision of the Selectmen for a camper on their property because the use of the trailer does not comply with Article III, Section C. 5.b or any other pertinent ordinance.  Seconded by David Hartley.

VOTE ON MOTION
Richard Millette – Yes
David Hartley – Yes
Ben Brown – Yes
Mark McIntosh – Yes
David Dobson – No

Motion carries 4-1.
MOTION

Ben Brown moved to communicate to the Selectmen that the Board of Adjustment requests the Selectmen be lenient with the time frame of removing the camper because of winter conditions.  Seconded by Mark McIntosh.

VOTE ON MOTION
David Dobson – Yes
Mark McIntosh – Yes
Ben Brown – Yes
David Hartley – Yes
Richard Millette – Yes
Motion carries 5-0.

Respectfully submitted,


Holly MacCleery, Secretary

Mark McIntosh, Chairman
Chichester Board of Adjustment



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