July 3, 2003
FINAL MINUTES
OF PUBLIC MEETING
VOTING BOARD: Chairperson Don Kraemer; Members Honey
Hastings, Silas Little &
John Pierce;
alternate member Don Fonda.
CALL TO ORDER: By Mr. Kraemer at 7:30 p.m.
NEW BUSINESS
Case # 7/3/2003-1 HEAD/BELFIORE
Neil Head & Grace Belfiore have applied for a Special Exception under the terms of Article IV, Section 11, of
the Temple Zoning Ordinance, to permit the operation of a home business consisting of archery lessons and
repair and assembly of archery equipment, on Map 2A, Lot 51, 5 NH Route 45, in the Rural Residential and
Agricultural District.
Mr. Kraemer called the roll, explained the procedure for hearing cases and stated that all abutters had been
notified. Before Mr. Head presented his case, Paul Quinn, who is not an abutter, asked to speak.
P. Quinn pointed out that Mr. Head is applying for a special exception under Article !V, Section 11, for
which a special exception is not needed. He asked if the application should be for Article IV, Section 13, and
asked if the board would proceed under that section.
Mr. Little questioned whether Mr. Head is applying for a special exception under Section 13, or is he
appealing someone’s decision that this business does not constitute a home industry or professional service.
Mr. Head explained that it has been his understanding that he is operating a home business. He was issued a
bldg. permit on November 13, 2002, to build a laundry room, storage facility, office, and a shop extension that will connect to his home. He stated that he will meet all the requirements for a home business once the
two buildings are connected.
P. Quinn presented a copy of a letter dated March 26, 2003, from the Board of Selectmen to Mr. Head, in which the BOS state that it has come to their attention that Mr. Head may not have a permit to operate a commercial enterprise at his location. They requested a copy of Mr. Head’s special exception and driveway
permit from NHDOT. Mr. Kraemer read the letter. (See file.)
Mr. Little said that a special exception cannot be issued for Section 11. The applicant can either apply for a
special exception to Section 13, or appeal the Selectmen’s decision that a special exception is required.
Mr. Head presented the building permit dated 11/13/02; a Notice of Decision from the ZBA, dated June 7,
1988, which granted the previous owner of his property a special exception and variance with respect to
Article IV, Section 13, to operate a machine shop; a driveway permit from NHDOT; and several sketches of
his property and the addition.
Mr. Head explained that when he bought the property in 1996 he was told by two different Town officials that he would not need to request a special exception for his archery & black powder business because the
property came with a special exception for a machine shop. He has been operating his business with that
understanding since that time. In November 2002, he applied for and received a bldg. permit to expand his shop and add an office, laundry room and storage space. It wasn’t until he received the letter from the Board
of Selectmen in March, 2003, that any concerns were raised. Mr. Head felt that because his home and shop will be connected when this project is complete, and he meets all the other criteria for a home business in
Section 11, he did not need to apply for a special exception under the terms of Section 13, but the Selectmen
asked him to come before the ZBA so that was why he was there.
Abutter Janet Dube asked if the current business could be expanded if Mr. Head sold his property. Mr. Little
said that if Mr. Head is claiming that his business qualifies as a home industry under the terms of Section 11,
then he will effectively give up or abandon the special exception to section 13 that was granted to the previous
owner of the property. If a future owner wanted to do something other than a home industry under the terms of section 11, s/he would need to apply for a special exception to section 13.
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Temple ZBA
7/3/03
HEAD/BELFIORE
P. Quinn referred to the 3/26/03 letter from the BOS and the paragraph which reads “Further, we granted a
building permit on November 12, 2002 for an addition of a shop and laundry room which does not allow
expansion of a commercial operation.” Mr. Quinn felt that this paragraph states that the BOS believed that
Mr. Head’s business was a commercial enterprise and that the building permit that was issued was improper.
Mr. Kraemer read an excerpt from the BOS minutes dated June 10, 2003 wherein the BOS request that Mr. Head come before the ZBA. Selectman Petro also suggested that Mr. Head study the Site Plan Review Regulations and go before the Planning Board. The BOS stated that the building permit issued in November
2002, would require more research.
P. Quinn gave his version of the history of Mr. Head’s property. He said that NH Archery and Black Powder
has been operating as a retail business since 1998 or earlier. He said that Mr. Head spoke to two Selectmen in 1996 about what he would be required to do to open his archery business. Both said that he would need to apply for a special exception under the terms of section 13 – commercial enterprise. Mr. Head also spoke to P. Quinn, who was then the ZBA Chairman, and Mr. Quinn told him how to go about applying for the special exception. Mr. Quinn also told Mr. Head, at that time, that the special exception issued to Temple Grinding was not transferable to the archery shop because the Temple Grinding special exception was specifically tailored to a service-oriented non-retail enterprise. Mr. Head then spoke to a third Selectman, who said that Mr. Head did not need to apply for a special exception because the property came with the Temple Grinding special exception. Mr. Quinn felt that because NH Archery & Black Powder has failed to obtain the proper approval for its operation for more than 5 years, it is in violation of the Temple Zoning Ordinance. Further, because of the seemingly illegal status, the building permit, which was issued in November, 2002, constituted an expansion of an already illegal use, and is itself therefore, an unlawfully issued document. Mr. Quinn was also concerned about the increased traffic that will be generated from the expansion Mr. Head’s
business at the junction of Route 45 and Route 101 where traffic is already heavy and fast.
Janet Dube expressed concern about the fact that the new plan, which has the office space outside of the retail space, has allowed for a large increase in the size of the retail space, which may mean more traffic to the
business. She feels that Route 45 at that spot is already very dangerous and she is worried about the potential
increase in traffic.
Abutter Mike Dube is concerned about the safety of the driveway access and the potential for increased traffic.
Mr. Kraemer read a letter from abutters Michael & Toni Naglie in which they stated that they are in favor of
granting the special exception request for a home business by the applicants.
Mr. Little said that the archery & black powder shop has been in existence for years. Why the Town didn’t
require Mr. Head to apply for a special exception for a commercial use is unknown. In November, 2002, Mr.
Head applied for a building permit to expand the business and it was granted. Since the Selectmen haven’t revoked the building permit, it is still valid. He said that the ZBA can’t grant a special exception to section 11, but home businesses which meet the criteria of section 11 are allowed to operate without a special exception.
It appears, he continued, that once Mr. Head finishes the breezeway, his home and business will be
connected, and if he meets the rest of the criteria he should qualify as a home business.
P. Quinn asked if the driveway permit issued by the NHDOT was a commercial or residential permit. Mr.
Little said that Condition #7 refers to business parking, so the State must know that there is a business.
There was further discussion as to what happened in 1996 and why Mr. Head didn’t apply for a special
exception at that time. Mr. Little said that the Selectmen issued a building permit to Mr. Head to expand his shop in November, 2002. When the Selectmen or other Town officials make decisions, applicants and those affected by those decisions are entitled to rely upon the legal sufficiency of those acts and shouldn’t have to second-guess them. The BOS issued Mr. Head a building permit to expand his shop, which already had a
commercial enterprise in it. And it showed on the plan that he was plainly going to tie it into his house. That was in November. The Selectmen haven’t acted to revoke the building permit. If they did revoke the building permit then the applicant would have grounds for administrative appeal. At this time, however, there is
nothing to appeal.
David Quinn wanted to know why there was so much interest in what happened in 1996. He said that there
have been no complaints in 6 years and the BOS have issued a building permit to expand the building… so
what’s the problem? He also said that Mr. Head’s driveway is clearly visible from four directions.
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HEAD/BELFIORE
Mr. Little suggested that Mr. Head construct the breezeway and until it is constructed, don’t expand the
existing shop. Then when everything is tied in and it is all one structure, Mr. Head can legitimately evaluate whether his dwelling meets all the criteria in section 11. Mr. Little’s opinion was that if Mr. Head plans to use the expanded area in his shop for commercial purposes before the shop is attached to his residence, he does need to apply for a special exception to section 13. Mr. Head said that he believes that he can have the shop
attached within two weeks.
Mr. Head was asked how quickly he could get the driveway improvements done. He said that he would
schedule the work right away but didn’t say when it would be done.
P. Quinn said that the reason he is discussing what happened in 1996 is that a fundamental error occurred at
that time and it has never been corrected. Mr. Little said that if the BOS made an error in issuing the building permit to Mr. Head, that act can be challenged by going before the BOS. It isn’t up to the ZBA to determine
whether an error was made.
MOTION: Mr. Little moved to take no action, taken as no prejudice to any parties in interest. The motion was
seconded by Ms. Hastings and all were in favor.
P. Quinn asked if the ZBA had made a determination that Mr. Head’s business qualifies as a home business.
Mr. Little said that the board has taken no action one way or the other. Mr. Head has a building permit issued by the BOS. All the property owners in the Town of Temple should be entitled to rely upon the act of a Town
official. If there is an issue with respect to what the
Selectmen do, then that’s where the focus needs to be.
OLD BUSINESS
MINUTES – 6/5/03
MOTION: Mr. Fonda moved to accept the 6/5/03
minutes as written. Second by Mr. Pierce and all
were in favor.
RULES
OF PROCEDURE
The
clerk handed out revised Rules of Procedure. To be discussed at next meeting.
MOTION: Mr. Kraemer made a motion to adjourn the
meeting, seconded by Mr. Pierce and all in favor.
The
meeting adjourned at 9:05 p.m.
Respectfully submitted,
Diane Nilsson, Recording Clerk
Posted
7/8/03