July 18, 2002
FINAL
MINUTES OF PUBLIC MEETING
VOTING BOARD: Don Kraemer, Will Phillips, Colleen
Martin, Silas Little, Nate Chamberlin.
Alternate Don Fonda was in attendance
but did not vote in the hearing portion
of the
meeting.
CALL TO ORDER: By Don Kraemer at 7:02 p.m.
MOTION: Made by D. Fonda, seconded by
C. Martin to accept 6/6/02 minutes as written.
Voted
affirmative.
Public Hearing
C.
Martin read the Notice of Hearing:
Concerning the property known as the Temple Cabins on Route 101
in
Temple, the Zoning Board of Adjustment, pursuant to the order dated May 6, 2002
of the New Hampshire
Superior Court in the matter of Messina
v. Temple 00-E-0406, will hold a hearing on three requests.
1. Request for a Special Exception to expand
cabins 1-5 and 7&8. Specifically, this hearing will address a NHDES letter
concerning conditions imposed by prior decision of the Board on cabins 1-5 and
to
consider the expansion of 7 and 8 away
from lot lines.
C. Martin read
a letter from NHDES, dated June 6, 2001 and signed by William E. Evans, P.E.
(see file)
Attorney for
Richard Messina, Bobbie Hantz, presented a Memorandum on Remand which addressed
the
three requests
under consideration. (see file) In reference to point #1 she referred to page
18 of the court
order which
states… neither the condition limiting occupancy to one person per unit nor the
condition
prohibiting
kitchen facilities altogether and limiting water to sanitary facilities is
reasonable… and asked the
board
to eliminate those conditions. The board discussed the sizes of the various
kitchen appliances.
MOTION: Motion made by S. Little to grant a special
exception under the terms of Article VII, Section 1.3
to allow the expansion of cabins 1-5 with the following conditions:
·
The kitchens will consist of 1 bar sink (approximately 12” x
12” x 8” deep); 1 apartment size refrigerator (approximately 30” tall x 24”
wide x 24” deep); a microwave or hotplate and similar small appliances as
stated in the letter from NHDES dated June 6, 2001.
·
1 double bed per unit.
Motion
seconded by C. Martin, voted affirmative.
1b. To
consider the expansion in size of cabins 7 & 8 away from lot lines.
Ms.
Hantz stated that she believes that the request meets all the requirements of
Article VII, Section 2.3
including
a, b & c. Regarding c, she said the approval would be consistent with the
Master Plan because the
plan
calls for commercial use on Route 101 and both the board and the court agreed
that the cabins are a
commercial
use. She then presented a plan showing cabins 7 & 8 completely within the
100’ commercial side setback. The plan showed the additions to the cabins going
in a northerly direction, away from Route 101. Some of the board members felt
that the only conforming direction in which the cabins could expand would be to
the west because the cabins were inside the north and south setbacks as well as
the side setback to the
east.
Ms.
Stark, who abuts the property to the east, said that she has been waiting for
three years for Mr. Messina
to
remove a defunct septic system of his that is on her property, have a survey
done and erect a fence between
the
two properties. She felt that the board should not grant this request because
Mr. Messina did not keep his
word to her about getting these things
done.
The
board discussed the possibility of granting the expansion conditional to the
septic system being removed
and
the fence erected. Ms. Stark said that she and Mr. Messina had an agreement
about these things already
and the agreement wasn’t linked to
cabin expansion.
Page
2
Temple
ZBA
7/18/02
Minutes
The
board revisited the sizes of the requested expansions: cabin #7 would go from
163 sq. ft. to 319 sq. ft.; cabin #8 would go from 209 sq. ft. to 340 sq. ft.
Mr.Messina pointed out that even with these expansions, he
would still maintain the 1/8 building
coverage limitation.
The
board discussed page 22 of the court order and the fact that now that the board
knows that it is able to
grant
a special exception, does it still believe that the other reasons for the
original denial are still valid. These
are: Article VII, Section 2.3a; Article
VII, Section 2.3c; Article I, Section 1 & Article IV, Section 13.
MOTION: S. Little motioned to reaffirm its decision of
October 5, 2000 to deny the physical expansion of
cabins 7 & 8 based upon the
findings reported further on page 22 of the court order and further, that the
board’s decision on the expansion of cabins 7 & 8, with respect to the flat
prohibition under Article VII, Section 2.3, was in the alternative as queried
in the court’s order. Motion
seconded by C.
Martin, voted affirmative.
2. Request
for a Special Exception to approve the conversion of the cabins from seasonal
to year-round use.
2a. To consider whether an established nonconforming
year-round use for cabins 2-5 was lost to
abandonment
or discontinuance.
Ms.
Hantz claimed that because of the affidavits of David Buck, Shirley Tuttle
& Richard Messina, previous
and
current owners of the cabins, cabins 2-6 were deemed by estoppel to have
acquired year-round use in 1974. David Buck renovated five of the eight cabins
for year-round use and since then the current and
previous
owners uniformly intended to continue & improve the use as year-round
rentals. None of them
made any overt act or omission which
would provide any evidence of an intent to abandon the property.
S.
Little stated that he believed that year-round use lasted no more than two
years after 1974 and that he saw
no
evidence that Shirley Tuttle sought to preserve year-round use of those cabins.
She didn’t try to market it
to
someone who would continue that use therefore he felt that her intent was to
abandon the year-round use
for one reason or another.
Ms.
Hantz referred the board to page 29 of the court order which defines
discontinuance (see file) and
claimed that there was no intention to
abandon or relinquish year-round use by any of the owners.
The
board felt that the facts speak for themselves in this case. In the 1980’s and
1990’s cabins 2-5 were
rented
year-round sporadically if at all. There is no evidence that any improvements
were made to these cabins during these years so that there was a failure to act
on the part of the previous owner and therefore an
intention to relinquish the year-round
use.
MOTION: S. Little motioned that the evidence submitted
to the board at the October 5, 2000 hearing and the
February 2001 hearing
establishes that in the 1980’s and 1990’s, by the acts of the owner
occurring at that time, an
intent to abandon use of cabins 2-5 for year-round residential purposes
as
opposed to transient seasonal use. Motion seconded by C. Martin, voted
affirmative.
2*. To determine whether, pursuant to Article VII,
Section 1.3 of the Ordinance, the applicant’s proposed
expansion of use would be a natural, but
limited, expansion of use which would not substantially expand
or
enlarge the existing nonconforming use.
Ms.
Hantz argued that an expansion of use from seasonal, which is not defined in
the Ordinance, to year-
round
use merely expands the duration of occupancy. Long-term stable tenants vs.
seasonal tourists may be
a
less intensive use and have less impact on the neighborhood. She felt that
seasonal to year-round use is a
minor adjustment and a natural
expansion. (see pages 3-5 of Memorandum on Remand in file)
Sherry
Fiske pointed out that if year-round tenants lived in the cabins, there may be
some children added to
the school system which could have a
large impact on the town.
Mr. Stark said that year-round tenants
might add an element of continuity to the neighborhood.
S.
Little stated that there are two findings that the board needs to make in order
to grant the request:
·
That the expansion is a natural, but limited, expansion
·
That the expansion would not substantially expand or enlarge
the existing nonconforming use
Page 3
Temple ZBA
7/18/02
Minutes
He
doesn’t accept that old motor court cabins changing to year-round residential
use is not a substantial
expansion,
or that it is a natural, but limited, expansion. W. Phillips asked what would
be a natural, but
limited
expansion? S. Little said that a swimming pool might fit that criteria, but
added that it is possible
that
some nonconforming uses do not have a natural, but limited expansion. The board
discussed the
difference
between seasonal transient use vs. year-round transient use vs. year-round
residential use and
clarified that the request was to go from
seasonal transient use to year-round residential use.
MOTION: S. Little motioned, in relation to page 33 of
the court’s order, to deny the request for a special
exception to Article VII,
Section 1.3, to expand the nonconforming use of the cabins from
seasonal transient to
year-round residential as this is not a natural, but limited, expansion of the
nonconforming use. Motion seconded
by C. Martin. The vote was four in favor and W. Phillips
opposed.
2b. For the Board to review its decision of 10/5/00
with respect to a grandfathered right to use cabins 1-4 in
light
of the Board’s decision of 2/7/01 and the Court’s order.
The
Board discussed the timeline: when they denied the special exception on 10/5/00,
they hadn’t yet heard
evidence
of grandfathered year-round use. In light of what the Board found to be
abandonment of year-round
use,
the initial establishment of grandfathered year-round residential use, in February
7, 2001 decision,
which
was subsequently abandoned, would not disturb the Board’s denial of the special
exception that was
requested in October because the board
found that grandfathered use to be abandoned.
MOTION: W. Phillips motioned that because the
grandfathered use for cabins 1-4, as determined in the
Board’s decision of February
7, 2001, was abandoned, that a special exception is required. The
special exception is denied
for reasons stated previously in this decision of July 18, 2002. Motion
seconded
by C. Martin, voted affirmative.
3. Request for an appeal from an Administrative
Decision. Pursuant to the Court’s order regarding the
abandonment or discontinuance of a grandfathered
nonconforming use of cabins 1-4, for the board
to
consider intent with respect to the issue of abandonment.
Ms.
Hantz argued that cabins 1-4 were deemed to be grandfathered as year-round uses
at the inception of
zoning.
Since that time the owners uniformly intended to continue the use of the cabins
as year-round rentals.
None
of them made any overt act or omission which would provide any evidence of an
intent to abandon the
use.
D.
Kraemer & S. Little were not satisfied that Shirley Tuttle’s declarations
now are more believable than what
actually
occurred in the 1980’s and 1990’s regarding whether the cabins were rented
year-round. D. Kraemer
also
stated that there are never enough rentals for people looking to rent, so it’s
hard to imagine that Ms.
Tuttle couldn’t find tenants during
those years.
MOTION: W. Phillips motioned that a lack of rental
activity for, and maintenance of cabins 1-4 during the
1980’s and 1990’s, a time of
high rental demand, evince an attempt to abandon use of those
cabins for year-round
residential purposes. Motion seconded by Colleen Martin. The vote was
four
in favor and W. Phillips opposed.
NEW BUSINESS
D.
Kraemer read a letter from Richard Messina requesting an Appeal from an
Administrative Decision
(Article
VI, Section 4) related to the Selectmen’s meeting of May 28, 2002 at which Mr.
Messina claims
that
the Selectmen refused to accept a building permit application from him to winterize
the porches of his
cabins, on the grounds that he needed a
special exception.
The
board members felt that they had no jurisdiction without written documentation.
It was suggested that
Mr.
Messina bring a copy of the permit application and a written decision from the
Selectmen and then the
Board can hold a hearing.
MOTION: W. Phillips motioned to reject the application
on the basis that there is no appealable decision,
determination or requirement
of and by the Board of Selectmen. Motion seconded by
N.
Chamberlin, voted affirmative.
Meeting adjourned at 11 p.m. -- Minutes submitted by Diane Nilsson