HENNIKER ZONING BOARD OF ADJUSTMENT

Approved Minutes

October 17, 2007

Members Present:  Leon Parker, Chairman; Doreen Connor, Vice Chair; Joan Oliveira; Kris Blomback; Bob Stamps;

Alternates:  Gigi Laberge is present.  Rick Patenaude is excused.

Others Present:  Laura Scott, Town Planner; Jennifer Astholz, Minute Taker

One other person was in the audience who did not sign in.

1. Chairman Parker called the meeting to order at 7:00 pm.

It is noted that Bob Stamps, Board member, will be excused from the November meeting as he will be out of town.

Chairman Parker introduced Laura Scott in her position of Town Planner.  Ms. Scott stated that she is usually in the office on Mondays and Wednesdays; appointments can be made with her through Nicole Gage in the office.

2. Request for Rehearing of Case 2007-113:  Map 1, Lot 354, the original applicant was Tarbell & Brodich, PA, on behalf of Hamilton and Merrilee Dodge.  The request for rehearing was submitted by abutters Dale Jennings and the Egners and others.

It is noted that Alternate Gigi LaBerge has recused herself from this case. 

The Board reviewed the letter objecting to the original decision.  Chairman Parker described the situations as follows:

“We have received a letter from a variety of people stating that they are formally appealing our decision to approve a variance in case number 2007-113.

There are 12 signatures on the letter, but only three of them clearly have standing as abutters to request a re-hearing.  Two more may have, and two definitely do not.  Since there are legitimate petitioners with standing we will respond to the letter.  However, we will consider it as a motion for a rehearing, since that is the only legitimate procedure under which we can consider it.

As a motion for a rehearing, whether or not to grant it is a Board decision.  As such it will be made in this public meeting.  However, this is not a public hearing, and there is no formal notice to applicants or abutters required.

We will be acting on the information provided in the letter, with no additional testimony from the public.  We will not be accepting comments from applicants, abutters or the public.  If we approve a rehearing it will be scheduled for our November meeting, at which time it will be up to Dale Jennings and the Egners, and any others who can demonstrate standing, to present their case for a reversal of the variance we granted in September.

In the letter we are acting on the petitioners have demanded that the Board address specific questions concerning decisions we made that they disagree with.  The Board will stand for now on the record of the September meeting, and in our deliberations we will only be concerned with whether or not the letter demonstrates a reason to schedule a rehearing.

The letter also challenges a decision made in October 2006.  We are well past the 30 day period for challenges to that decision.  That window described in RSA 677:2 is strictly enforced and several Supreme Court decisions reinforce and clarify it.  So we will not be considering any re-hearing of that decision.

The guidance in the NH OEP Handbook for local officials says that “A person has a right to apply for a rehearing, and the Board has the authority to grant it.  However the board is not required to grant a re-hearing and should use its judgment in deciding whether justice will be served by so doing.  In trying to be fair to a person asking for a rehearing, the Board may be unfair to others who will be forced to defend their interests for a second time.” 

Additional guidance in the handbook is that no purpose is served by granting a rehearing unless the petitioner claims a technical error has been made to their detriment or can produce new evidence that was not available at the first hearing.   It also suggests that the reason for granting a rehearing should be a compelling one and that we have no right to reopen a case based on the same set of facts unless we are convinced that an injustice would otherwise be created and the petitioner is persuasive that the Board has made a mistake.”

Chairman Parker then moved that  the letter dated October 5^th from Dale Jennings and others be considered a “motion for rehearing” of our variance issued in case #2007-113, and that the request be denied for lack of any persuasive reason for granting it.

Joan Oliveira, Board member, seconded the motion. 

Doreen Connor disagreed with the motion and stated that she favors granting a rehearing.  She stated that she does not think that hardship is shown on the Dodge’s part.  She stated that not being able to sell the land does not create a hardship. 

Chairman Parker stated that he has studied the RSA’s, terminology and case studies, and does not have a problem understanding hardship imposed on the Dodge’s by previously made errors.  The Dodge’s are now aware of a hardship as their garage was put in the wrong placed due to wrong information.  He stated that an “equitable waiver” is not the proper instrument to use as the requirements cannot be met in this case.  Chairman Parker stated that some zoning laws do not fit some circumstances. 

Bob Stamps stated that he believes there is hardship on the Dodge’s part as they thought they had more land than they actually have.  If measurements had been made correctly, this would not have happened.  Making this change corrects this problem error. 

Chairman Parker called for a vote on the motion:

4-For; 1-Against

Joan:  For                     Doreen:  Against

Bob:  For                                 Kris:  For                   Leon:  For

Laura Scott will write a letter to the applicant stating the Board’s decision.

Ms. Laberge, although recused from the Board for this case, stated that she would like to see the deed on the property as there are other questions regarding the right of way and water supply. 

Ms. Laberge joined the Board in her capacity as an alternate member at the conclusion of this case.

3. Minutes of the September 19, 2007 meeting were reviewed and corrected.  Doreen Connor moved to approve the minutes as corrected.  Chairman Parker seconded the motion.  Motion carried, 5-0.

4. The Board reviewed proposed language changes to the Zoning Regulations as prepared by Ms. Scott.  Typographical errors were corrected.  Ms. Scott explained that the revisions are recommended to make the document clearer and comply with State law.

Kris Blomback moved to have Ms. Scott submit the corrected document to the Planning Board for their review and possible sponsorship for 2008 Town Meeting.  Doreen Connor seconded the motion.  Motion passed, 6-0.  Ms. Scott stated that she will put it on the agenda for the November 2007 work session meeting of the Planning Board.

5.  The Board discussed Planner assistance to the ZBA.  Ms. Scott suggested that she create a member binder containing all current reference documents that they may need.  The Board agreed this would be helpful.  File management was discussed, and it was noted that copies of approved minutes are kept in the files.  Ms. LaBerge asked if there is assistance when a member of the public wants to file an application with the Boards.  Ms. Scott stated that she is available to meet with applicants, but she could create a “frequently asked questions” list for general items such as special exceptions, area variances, etc. 

6.  The next ZBA meeting is scheduled for Monday, November 19, 2007 (changed from the night before Thanksgiving).  If no applications are filed by October 29, the meeting will be cancelled. 

Doreen Connor moved to adjourn at 8:00 pm.  Bob Stamps seconded, and the motion carried, 5-0. 

Respectfully submitted,

Jennifer Astholz

Recording Secretary

TOWN OF HENNIKER

ZONING BOARD OF ADJUSTMENT

Approved Minutes

September 19, 2007

Town Of Henniker

Zoning Board Of Adjustment

Approved Minutes

July 18, 2007

Members Present:  Leon Parker, Chairman; Doreen Connor, Vice-Chair; Members Bob Stamps; Joan Oliveira; Kris Blomback; and Alternate Jeff Connor.

Others Present:  Atty. Rob Howard; Neva Williamson; Jennifer Astholz, recording secretary

Chairman Parker called the meeting to order at 7:00 pm.

Chairman Parker reviewed an article published by the Local Government Center concerning the role of alternate members on land use boards during meetings and hearings.  Chairman Parker stated that the ZBA’s procedure has been to encourage alternates to participate in the discussion of a case, although they do not have voting privileges.  The article recommends that alternates conduct themselves as members of the public unless they are designated to sit as a full board member for the hearing.  Chairman Parker asked for the board’s response to these recommendations. 

Bob Stamps, board member, stated that he feels that it is helpful to hear input from the alternate members.  Doreen Connor stated that it is helpful for alternates to have some exposure to and experience participating in the process before sitting on the board as a full member.  Joan Oliveira stated that their procedure does not allow alternate members to vote, which is what this board also does, so their participation is really no different than any other audience member’s participation.  It was decided to not change their procedure.

Public Hearing

Case #2007-110:  Attorney’s Respite LLC (Robert Howard) has submitted an application for a special exception.  The property is located at 168 Maple Street, Map 2, Lot 194B1 in the RV district.  The special exception is requested as required by Article V, Section 133-22 for existing building up to ten professional/commercial offices.

Chairman Parker recused himself from this case.  Jeff Connor, alternate, filled this position on the Board.

Doreen Connor, Vice-Chair, called the hearing to order at 7:09 pm.  Kris Blomback and Joan Oliveira checked the paperwork for accuracy, and it was found to be in order.  (It was noted that they will inform the new secretary that both sections of the abutter’s cards need to be completed.)

Atty. Rob Howard, applicant, presented his request for special exception.  He reported former history of the ZBA granting a prior special exception for a law office.  At that time, he did not make a distinction in the type of offices that could be allowed.  He stated that he had a restrictive lease for McAllister Construction to conduct business in that building where they leased space for their management and administrative offices.  He did not go before the Planning Board at that time as he thought this was an allowable office use.  He stated that the building is assessed as a fully developed, two-story building.  Since the construction office is no longer operational, and he has begun the process of soliciting new tenants to the building, he became aware that he may need to go before the Planning Board.  He reported that the Town Planning Consultant recommended that he apply to the Planning Board for a change of use to house the counseling service, filling the void left by McAllister’s business.  He stated that the Planning Board rejected his request because it was deemed to be a law office.  He is requesting that the building be used for professional offices; he has applied for 10 offices as there are 10 rooms that could conceivably be leased as separate office spaces.  He stated that currently another attorney utilizes five offices, he uses two for his law practice; there is a recreation area for employee use and a shared storage area which could be turned into another office. 

Ms. Connor noted that no one was there to express public opinion for or against the proposal. 

The Board discussed the request.  The Board understood that the building was always intended to be a professional office building but became restricted to “law office” as that was the original use.  The layout of the office space was described.  There are two half-baths upstairs and two half-baths downstairs.  There are currently seven vacant offices.  Parking was discussed; it was determined that there is sufficient parking already to support the request. 

Ms. Connor expressed concern for the number of offices requested.  She stated that she understands the concept, but 10 different tenants could create various issues. 

Leon Parker, speaking as an audience member, stated that the building was to be used as a professional office.  He stated that office suite configurations are becoming quite common.  He stated that his interpretation of the regulation is different than the Planning Board’s interpretation, as he does not feel that an applicant should have to apply for change of use if it is still being used as a professional office. 

Ms. Oliveira asked the applicant to clarify his understanding of the Planning Board’s role.  He stated that if an office space changes the type of profession, the Planning Board would require site plan review. 

Mr. Stamps stated that he does not think the type of professional office should be restricted. 

Ms. Connor stated that her concern is with the potential number of tenants, potentially leading to a strip mall.

Jeff Connor stated that the office is naturally divided into three zones and would probably only generate leases for the three office suites.

Atty. Howard stated that the building has turned out to be an asset to the town, and he intends to keep that reputation.

Ms. Connor closed that public hearing at 7:35 pm.  The Board then went into deliberations.

Mr. Blomback stated that he has no problem with the application.

Ms. Oliveira stated that she is only concerned about the request for 10 offices.

Mr. Connor stated that he would only be concerned about adequate parking if all 10 offices were active at the same time.  Mr. Blomback asked if there was a difference between one office growing to 10 employees or having 10 separate tenants. 

Mr. Stamps stated that the definition of “professional” is somewhat vague, but he does not think it will create a problem as long as the professional use is what is intended by the samples given in the list.

Ms. Connor stated that she would be more comfortable allowing fewer offices so that it does not have the potential of becoming a strip mall.  Mr. Stamps stated that it only has two separate entrances which would avoid the mall effect.  Mr. Howard stated that he is also governed by the existing sign ordinances.

Ms. Connor called for the vote by the Board for the individual criteria used in granting a special exception.

1. The specific site is an appropriate location for the use or structure.

5 Yes – 0 No

2. The use requested is allowed by special exception.

5 Yes – 0 No

3. The use will be compatible with neighboring land uses.

4 Yes – 1 No

Kris-Yes         Joan-Yes         Jeff-Yes       Bob-Yes       Doreen-No

4. The requested use will not create undue traffic congestion or unduly impair pedestrian safety.

3 Yes – 2 No

Kris-Yes         Joan-No         Jeff-Yes       Bob-Yes       Doreen-No

5. Granting the permit would be in the public interest.

5 Yes – 0 No

6. The proposed use would not create hazards to the health, safety or general welfare of the public, nor be detrimental to the use of or out of character with the adjacent neighborhood.

3 Yes – 2 No

Kris-Yes         Joan-No         Jeff-Yes       Bob-Yes       Doreen-No

7. The proposed use generates no offensive noise, vibration, smoke, dust, odor, heat, glare or unsightliness.

5 Yes – 0 No

Bob Stamps moved to approve the special exception as requested.  Kris Blomback seconded the motion.  The motion passed unanimously.

(This case ended at 7:45 pm.  Jeff Connor returned to the audience as an alternate member, and Chairman Leon Parker resumed his position on the panel.)

Review of Minutes

The minutes of the June 20, 2007 meeting were reviewed and corrected.  Bob Stamps moved to approve the minutes.  Doreen Connor seconded the motion, and it passed unanimously.

New Business

Case #2007-111:  James Roberts has submitted an Appeal from an Administrative Decision concerning the June 20, 2007 ZBA Notice of Decision for Application #2007-109.  The property is located at 270 Browns Way in the Rural Residential (RR) District on Map 1, Lot 347X.

Chairman Parker explained that a clerical error had been made in the Town office, and the appeal was actually filed on an incorrect form.  He stated that an appeal can be requested in writing without having to pay another fee; the applicant had paid $90.

Chairman Parker moved that since the applicant used the wrong form based on information from Town employees, the ZBA requests the Town to refund the $90 fee to the applicant.  Kris Blomback seconded the motion.  The motion passed,

5 – 0.

Chairman Parker stated that the Roberts are seeking legal guidance but were not prepared to present their case at tonight’s meeting.  He stated that he advised Mr. Roberts to request an extension for their appeal. 

Doreen Connor moved to accept the applicant’s request for continuance to the September 19, 2007 meeting.  Bob Stamps seconded the motion.  The motion passed, 5-0.

Planning Consultant position:  Chairman Parker gave an update on the status of this newly created position.  Applications have been received and the interview process is underway.

Correspondence:  The Fall Planning Conference is scheduled for October 13, 2007.  The Town will pay for the registration fee for those who attend. 

Chairman Parker stated that the Town website has recently been updated.

Doreen Connor moved to adjourn the meeting at 8:10 pm. Kris Blomback seconded, and it was approved, 5-0.

Respectfully submitted,

Jennifer Astholz

Recording Secretary

TOWN OF HENNIKER

ZONING BOARD OF ADJUSTMENT

Approved Minutes

June 20, 2007

Members Present:  Leon Parker, Chairman; Doreen Connor, Vice-Chairman;

Joan Oliveira; Bob Stamps; Kris Blomback

Members Excused:  Rick Patenaude called in sick.

Others Present:  Mr. and Mrs. James Roberts; Attorney Eugene (Chip) F. Sullivan; Joe Morette; Jenn McCourt (McCourt Engineering); a reporter from the Concord Monitor; Michael Pon arrived at 7:30 pm. 

Chairman Parker called the meeting to order at 7:01 pm. 

Chairman Parker informed the audience that the Board of Selectmen appointed Bob Stamps to the position of full member of the ZBA.  Mr. Stamps was sworn into office earlier today.  The Board of Selectmen considered two candidates for the vacancy created when Ron Taylor left the ZBA. 

Joan Oliveira, Board member, stated that Heidi Hamel (Alternate) moved to Contoocook and has to write her official letter resigning from her position. 

Public Hearing:

Case #2007-109:  James Roberts has submitted an application for an area variance.  The property is located at 270 Browns Way, Map 1, Lot 347X in the Rural Residential (RR) district.  The variance is requested as required by

Article X, Section 133-39(B) for a 2 lot subdivision. 

Chairman Parker introduced the members of the Board and called the public hearing to order.  He read the description of the request for an Area Variance to subdivide property on a Class VI road.  Chairman Parker reviewed the procedures for the hearing.  Doreen Connor and Kris Blomback reviewed the paperwork to confirm that abutters were properly notified. 

James Roberts, applicant, reviewed the application and addressed each criteria. 

1) He explained that the property consists of both commercial and residential uses.  H.G. Caldwell operates an automobile business on the property.  He stated that the purpose is simply to separate the two types of property. 

2) Mr. Roberts stated that the change will not adversely affect property values as the structures are already on the property.  He has not had the property surveyed, but believes that of the 10.87 acres, approximately two and a half

(2-1/2) acres would be in the commercial zone and approximately eight (8) acres would be in the residential zone. 

3a) Mr. Roberts stated that the purpose is only to separate the commercial from the residential uses.  The property is fully developed and no additional buildings would be erected.  He stated that this variance would be a benefit to the public as it would keep most of the property in residential use. 

3b) The applicant stated that this is the best option to bring the property to a more conforming lot.

4) Mr. Roberts stated that this would create a residential lot with no variance allowing commercial use attached to it.   

5) The applicant stated that the structures were built between 1964 and 1985 which was prior to current zoning. 

Chairman Parker called for public comment. 

Jennifer McCourt, audience member, asked if granting the variance (subdividing off of a Class VI road) is allowed under State law.  The Board reviewed State statutes.

Mr. Roberts stated that he consulted with a land attorney from Concord who did not mention anything about this law.

Chairman Parker called for comments from the Board.  He stated that he has concerns about creating lots less than 10-acres in this district off of a Class VI road.   

Bob Stamps, Board member, clarified that Mr. Roberts owns the lot in question.  The applicant stated that Mr. Caldwell rents the 8,500-square foot building with septic and water.  They live in the house on the property.  The previous owner expanded the building and erected the large industrial building.  Mr. Caldwell rents from the applicant.  He stated that they have discussed the sale/purchase of that piece of property and building. 

Kris Blomback stated that he understands that the applicant wants to separate the residential from the commercial uses and may want to sell the commercial component. 

Mrs. Roberts stated that having a property with multiple uses creates many difficulties; she stated that even re-mortgaging the property is difficult to pursue.  If the parcels were separated, it would be easier to get loans, etc.

Ms. Oliveira stated that she does not believe that property can be subdivided on Class VI roads without the minimum acreage. 

Chairman Parker stated that this would require two variances; one to subdivide on a Class VI road and one to create two nonconforming lots. 

Ms. McCourt referred to page 435 in the zoning ordinances (674:40 & 674:41), and the Board discussed the aspect of existing structures versus erecting new structures as well as improving roads allowing subdivisions to take place.

Chairman Parker called for any additional comments from the Board.  He stated that it is difficult to prove hardship.  The intention of a grandfathered use is that over time, the commercial use will eventually disappear and it will become a residential use proper for the district.

The applicant stated that having a mixed-use property does create hardship, and  separation would create less commercial space in a Rural Residential district. 

Chairman Parker closed the public hearing at 7:37 pm for Board discussion.

Mr. Stamps stated that he is not swayed by the hardship as there are other alternatives to create increased financial gain. 

Ms. Connor stated that based on the way that the Statute is drafted, and the requirement for hardship, she believes that the term “shall not be subdivided” is clear. 

Ms. Oliveira also stated that the term “shall not” in the definition means that the property cannot be subdivided. 

Mr. Blomback stated that “shall not” means that the property cannot be subdivided without a 10-acre minimum. 

Chairman Parker stated that he is also concerned about creating two smaller lots. 

The Board voted on individual criteria as follows:

1)     The proposed use would not diminish surrounding property values. 

5 Agree; 0 Disagree

Leon: agree             Doreen: agree            Kris: agree

Joan: agree              Bob: agree

2)     Granting the variance would not be contrary to the public interest.

5 No; 0 Yes

Leon: No                Doreen: No              Kris: No

Joan: No                Bob: No

3)     Denial of the variance would result in unnecessary hardship to the owner because: a) special conditions of the property make an area variance necessary in order to allow the development described.

5 No; 0 Yes

Leon: No (He stated that there are other viable options.)

Doreen: No              Kris: No                        Joan: No           Bob: No

(Other criteria were not voted on as two already failed.)   

Chairman Parker moved that application #2007-109 by James Roberts to subdivide property located at 270 Browns Way be denied for failure to meet the hardship requirement and not being in the public interest.  Joan Oliveira seconded the motion.  The motion carried, 5 – 0.

Hearing ended at 7:45 pm.  The applicant thanked the Board for their consideration.

The meeting agenda called for the review of the May 16, 2007 minutes.  Chairman Parker asked to delay that until after hearing the new business.  The Board agreed with this.

Chairman Parker introduced Attorney Sullivan’s Motion for Rehearing/Reconsideration.  He stated that the Board is to decide whether or not to let the Morette’s come back for special exception which was rejected at the last meeting; they are not to review the case tonight.  Atty. Sullivan agreed with this summary of the expectation.  Atty. Sullivan stated that even if a rehearing was granted, by law, they will still have to file a motion under the law. 

Chairman Parker stated all members of the audience are to listen to the Board’s consideration, but this is not a public hearing.  He asked the applicant’s representatives if there was any additional information they would like to present that has not already been submitted.  Everyone on the panel has read the documentation submitted by Atty. Sullivan. 

Ms. Connor cited RSA 677.2 which requires a reason for rehearing and reviewed the history of the case to make sure all parties were in agreement.  She stated that the applicant first came before the Board in August 2006; the case was denied.  They came back in October 2006 and were denied again.  A request or rehearing was granted. The first rehearing was in February 2007 and was denied.  The applicant asked for the case to remain open while a traffic study was done.  In May 2007, a second rehearing was done and it was denied.  She believes this is the third request for a rehearing. 

Jennifer McCourt stated that she would like to correct the record regarding the first time they came before the ZBA.  She stated that their application was withdrawn (not formally denied).  Ms. Connor stated that she stands corrected. 

Joan Oliveira stated that she stands by the Board’s last decision and does not see a reason for rehearing. 

Chairman Parker raised the issue involving the record being created.  He stated that the tape that the applicant used to record the last meeting broke.  Mr. Parker requested that all parties speak clearly for the benefit of the recording secretary and instructed her to ask questions when necessary. 

Chairman Parker read Item #2 of the motion for rehearing.  He stated that he feels that this is an argument over semantics on that point.  He stated that if the Board rehears the denied application, the second application will have to be dealt with.  If that happens, abutter’s notices will have to be made.  He stated that he would not expect them to have to pay the application fee; a refiling would not be required, just renotification to the abutters. 

Chairman Parker addressed the topic of constitutionality of zoning in Henniker.  He stated that many know that the ZBA has fought against some of the more restrictive regulations proposed by the Planning Board.  More recently, there have been attempts of reducing people’s rights to subdivide or develop their land.  He stated that as a private citizen, he would be interested in seeing what would happen if a court were asked to see if our regulations are unconstitutional.  The Board is not going to respond or take action on this point. 

Item #8 was read.  Chairman Parker stated that by Board vote, and a lot of discussion, the Board is on record of disagreeing with this.  He stated that the ruling has been characterized as being illegal and unconstitutional; it would not make sense for the Board to just change their mind but would rather let a court of competent jurisdiction rule on this. 

Regarding Ms. Connor’s participation on the Board, Chairman Parker stated that the matter of her recusal was addressed previously.  It was decided that she did not need to recuse herself as she was not involved any more than anyone else traveling on Western Avenue.  There is no precedent, regulation or procedural guide to define how far someone needs to live from a project.  He stated that it is the participation of local residents that makes best decisions for the Town.   

Chairman Parker stated that just because Ms. Connor lives near a road that might be affected by proposed changes, there is no basis for overturning their decision.

Chairman Parker addressed the charge that because another Board member is named “Connor” and may be a distant relative of Doreen Connor, that he is acting subservient to her.  Chairman Parker stated that a sarcastic comment made about not voting her way may have been inappropriate but should not have been given any serious consideration. 

In regards to Item #18, asserting that the minutes create an inadequate record, Chairman Parker stated that there are other town Zoning Boards that do not vote on each individual item.  This Board has decided to do that in order to fully discuss issues before taking a vote on a project.  He stated that the minutes of previous Board meetings create the basis for the rationale of the votes.  He also stated that he does not recall asking people to state their reasons for each vote.  The rest of the summarization of the case includes the questioning of Jeff Connor’s vote because he said something; Jeff has a right to vote as he sees fit and that is what he did. 

The members of the Board, including Doreen Connor and Leon Parker, repeatedly expressed concerns about size and scope of the project, not because they were condominiums.  The issue is not about the surrounding area.  The problem is with the size and scope of the project. 

Chairman Parker moved that the Motion for Rehearing/Reconsideration be denied.  Doreen Connor seconded the motion.  

Doreen Connor stated that she would like to discuss the motion.

Ms. Connor referred to the implication that the Board’s vote was improper because of the need for workforce housing in Henniker.  The Town’s master plan states that Henniker has more than its fair share of housing in the community compared to other communities (page 124).  She stated that she also has concerns about the use of the term “workforce housing” regarding this plan.  According to the master plan, there were two-bedroom units available costing $108,000.  The proposed units, as represented to the Board, will be marketed at up to $200,000.  She stated that she is not sure that this price meets the definition of “workforce housing.” 

Ms. Connor also read the following comments which are printed here:

“Tonight’s Motion for rehearing appears to rely in part upon the applicant’s claim that I am an abutter to this project.  The term abutter is defined in the Henniker ordinance (133-3).  The applicant knows I am not an abutter, as I am not included on the application notice list.  An abutter is by definition one whose land abuts the proposed development.  Not only am I not an abutter but the two landowners (Mr. Corsetti and the Misty Lea Corporation) who stand to potentially lose part of their land depending upon the final outcome of the Newton Rd intersection are not abutters and I live beyond these individuals.

The applicant then suggests that because I live in the neighborhood of this project I should have recused myself from these proceedings.

The test with respect to recusal (RSA 673:14) asks whether I would be disqualified for any cause under the juror statute or whether I have a direct personal or pecuniary interest in the outcome, which differs from the interests of other citizens.  Jurors are disqualified in part if they are related to any of the parties; if they employ any of the parties; their counsel, representatives or witnesses.

The applicant’s recusal motion is troublesome as it relies upon recusal that has been selectively applied.  There are members of this Board who have employed the applicant’s engineer in unrelated proceedings, which under the juror statue could be considered grounds for recusal.  I believe that any board member who has sat on these proceedings despite past or current employment relationships with Ms McCourt decided their financial relationship would not influence their decision on this application.  It troubles me however that this recusal request and the press reports on recusal have been selectively applied to those board members who voted against this project as opposed to reviewing the recusal statute in its entirety as it applies to all board member including those who have voted in favor of the project.

The recusal statue does not define what having a direct personal or pecuniary interest in the zoning outcome means.  The applicant argues that because I might be impacted by the traffic flow from this project I have a direct interest that requires recusal.  According to the applicant’s traffic study the traffic flow from this project turns left—away from my home.  Beyond the specifics of the traffic study however—any impact upon my home because of the traffic does not differ from the impact, which every other citizen who lives on Western Ave and or any abutting road will encounter and thus I do not believe I have a direct personal intest that differs from the interest of every town citizen.

To my knowledge the NH court has not addressed whether one who lives in the neighborhood of a project and who might be impacted by the traffic has a direct interest that would rise to the level of recusal under 673:14

I consulted Rathkopf’s Treatise on Zoning and it identified one case on this topic.  In Victoria Corp v. Atlanta Merchandise Mart 112 S.E.2d 793 (Ga.Ct. App. 1960) the court concluded that ownership of property ¼ mile from the development which would suffer only from the general increase in traffic in the area suffered by all property owners in the area did not constitute a direct interest sufficient to challenge the zoning decision in court.

The traffic impact from this development will not impact my property in any way that is different from the rest of the property owners on Western Ave so I do not believe I have a direct interest in this project that differs from other citizens.

I also do not believe that I have approached this project any differently because of its location.  Unlike many of my colleagues on this board, I interpret the zoning ordinances strictly as I believe it is our job to apply the ordinances as written.  My approach to this case has been no different than the approach I took to the development on Bacon Road based upon its density for the proposed location.  A decision on recusal is in part a subjective factual inquiry.  I do not believe I have a direct interest in this project that is different from the rest of the Western Ave property owners, but I am happy to hear from other board members on this topic.”

Chairman Parker asked for any other discussion.  Hearing none, the Board voted as follows:  The motion to deny the Motion for Rehearing/Reconsideration was denied, 5 – 0.

       5 Yes – 0 No

       Bob: Yes                 Joan: Yes          Doreen: Yes

       Kris: Yes                 Leon: Yes

Discussion of this case ended at 8:11 pm.

Correspondence:

Chairman Parker reviewed a year-to-date budget statement.  The ZBA budget is $7575; $881 has been expensed to the budget thus far. 

New Business:

Chairman Parker stated that a new secretary has been hired for the Town office.  No applicant for the planning consultant position has been interviewed yet. 

Chairman Parker stated that Board members need to recruit new alternates.  It is the Board’s consensus that members of the Board should serve as alternates before becoming full members. 

Review of Minutes:

Minutes of the May 16, 2007 were reviewed and corrections were made.  Kris Blomback moved to accept the minutes as corrected.  Bob Stamps seconded.  Motion carried, 5 – 0. 

Kris Blomback moved to adjourn the meeting.  Doreen Connor seconded the motion.  Meeting was adjourned at 8:40 pm.

Respectfully submitted,

Jennifer Astholz

TOWN OF HENNIKER

ZONING BOARD OF ADJUSTMENT

May 16, 2007

Approved Minutes

Members Present:  Leon Parker, Chairman; Doreen Connor; Joan Oliveira; Kris Blomback; Jeff Connor, Alternate

Others Present:  Bob Stamps, Alternate Board Member; Jennifer McCourt; Laurie Rauseo; Eugene Sullivan, Esq.; Joseph Morette; Mr. and Mrs. Charles LeClair; Michael Martin; Dorothy Martin; Ethan Martin; Judy Champlin; Debora DeMello; Ron Taylor; Marshall Connor; Ken Erikson; Bruce Corsetti; Art Siciliano; Scott Osgood.

Chairman Parker called the meeting to order at 7:00 pm.  He reviewed the procedures for conducting the public hearings.  He stated that as an alternate, Bob Stamps is eligible to discuss the cases but will not vote. 

Public Hearing:

Continuation of Case# 2007-102:  Joseph and Jinhua Xian Morette have submitted an application for a Special Exception. 

(It is noted that the applicant tape recorded the proceedings.)

Jennifer McCourt, McCourt Engineering, began the presentation by stating that since the Board will be voting on all seven individual criteria again, and Joan Oliveira was not at the last meeting, the applicant will review details of all seven criteria.  Ms. McCourt described the existing property and the need to divide it into three lots to put in condominiums.  This needs to be done to satisfy the one principal building per lot requirement.  She stated that the site is appropriate as minimal regrading of the area will be necessary.  Newton Road will be upgraded to Town standards.  She stated that the traffic study has been done and will be reviewed tonight.  She reported that there will be adequate vegetative buffering around the exterior of the buildings to mitigate noise, and she sees no reason to cut trees in the back area.  Ms. McCourt described screened storage areas and dumpsters with stockade fencing with a gate opening. 

Ms. McCourt described adequate traffic accessibility with the design of Newton Road to 22-feet of pavement (may be 20-feet depending on the Town Board requirements).  She stated that they are working to properly determine the actual right-of-way, especially at the intersection of Western Avenue.  She stated that they will try to preserve the abutter’s property.  Research was done that shows a 33-foot right-of-way was conveyed to the Town of Henniker in 1775, although it does not show exactly where it is.  There are clearly marked boundaries on one side of the road, but the boundary on the other side is not clear.

The field area is to be left open and the interior of the designed horseshoe will be left available for recreational needs as deemed appropriate by the condo association.  Ms. McCourt described adequate access for emergency vehicles.  Adequate parking has been provided with a minimum of two spaces per unit; some units may have more parking available.   

The buildings are to be two bedroom units with 1000-square feet of living area.  Neighboring land uses include various types of commercial and residential properties.  This will also eliminate the large truck traffic currently on Newton Road.  The proposed use will be an improvement and will benefit the neighborhood. 

Laurie Rauseo, P.E., PTOE, gave her report of the traffic study that was conducted the week of April 20, 2007.  The detailed written report was provided to Board members for review.  Current traffic conditions were recorded and the anticipated trips per day generated by the proposed development were calculated.  Specific peak hours were noted, and it was determined that level of service still fell within “Category A” status.  Ms. Rauseo stated that there are no capacity concerns once Newton Road is upgraded.  Two recommendations are stated: 1) erect object markers be placed by the culvert since it is so close to the road; 2) as headlights will shine into the house on the corner, it is suggested that the developer erect screening for that area (this has been shown on the plans).

The applicant stated that the development is in the public’s best interest as it will provide less expensive housing in the area without unduly impacting the Town schools and other services.  Ms. McCourt reported that Henniker Community School and John Stark Regional High School reported only 12 students live in the River Meadows condominiums which have 30, three-bedroom units in its development.  This development allows for workforce housing in this area instead of more permitted commercial venture.

Vegetative buffers and the buildings will provide noise buffers for the immediate abutters.  Condo association documents address recourse if there is a problem.  Ms. McCourt stated that condo residents tend to be self-regulating as they do not want to live with problems themselves. 

At 7:35 pm, Chairman Parker called for public comment. 

Bruce Corsetti stated that he was neither in favor nor against the proposed development but is very concerned about determining the proper boundaries.  He gave a brief history of the house and triangular piece of property that is in question; between 1968 and 1974, a trade occurred with the town. He stated that Ron Goss was the former road agent at that time and may be able to share relevant information.  He strongly recommended that the road boundaries be clearly determined prior to moving forward with the development in order to protect Mr. Morette, the Town and his property. 

Chairman Parker stated that in his experience, when granite markers do not exist, an agreement may have to be created between the affected parties. 

Ms. McCourt stated that if a change in plans is necessary as determined by the Board of Selectmen and/or the Planning Board, they will respect the boundary that is currently known as the Corsetti’s property and will do all that they can to work around it, if possible.  Road width was discussed in light of the boundary issue.  NFPA makes recommendations, however, the suggested 24-feet of road width is not law.  If necessary, it would be tight, but Ms. McCourt thinks it could probably be designed within the available area. 

Ken Erikson, resident, stated that while he sees improvement in the design, he is still opposed to the development due to the intensity in the area. 

Mr. and Mrs. Charles LeClair, lifelong residents of Newton Road, voiced their opinion in favor of the development and the improvements to the road. 

Chairman Parker then called for comment from the Board members.

Doreen Connor asked if there is any study done on the number of accidents on a road with 370 trips per day.  Ms. Rauseo stated that they look at factors involved in accidents.  She stated that based on the data, traffic should be able to navigate safely through the area.  There are no statistics based on number of trips made.  Ms. McCourt stated that if the road plans have to change, they will come back to the ZBA.  The applicant wants to do their best in respecting property boundaries and creating the best design for the neighborhood. 

Kris Blomback, Board member, stated that he feels very confident that a road can be designed within the understood boundary.

Atty. Eugene Sullivan agreed that the Town needs to clarify the property boundary with Mr. Corsetti. 

Public comment was closed at 7:51 pm for Board deliberations.

Bob Stamps commented that this design is much improved over former designs. 

Jeff Connor, Board member, stated that he is happy with the changes to the plans.

Joan Oliveira, Board member, stated that she is still concerned about the density of the project, but agrees that it is a much improved design.  She also asked for clarification of the term “workforce housing.”  Atty. Sullivan distributed data regarding legislative study on workforce housing.  He stated that professional, working people are having difficulty affording property in New Hampshire. 

Previously, a realtor suggested that these units sell for $160,000 - $200,000.

Doreen Connor stated that she is still concerned about the overall density of the project.  The Town passed the ordinance of one principal building per lot to keep this type of thing from happening.  She stated that she believes that the applicant’s statistics on the anticipated number of children and cars is too low and, therefore, inaccurate.

Votes on the individual criteria are recorded as follows:

1)     The specific site is an appropriate location for the use or structure.

3 Yes – 2 No

Jeff – Yes                  Leon – Yes                  Joan – No

Doreen – No             Kris - Yes

2)     The use requested is allowed by special exception.

5 Yes – 0 No

3)     The use will be compatible with neighboring land uses.

3 Yes – 2 No

Jeff – Yes                  Leon – Yes                  Joan – No

Doreen – No             Kris – Yes

(Doreen stated that the other condo being compared was pre-zoning and is therefore not a good comparison.)

4)     The requested use will not create undue traffic congestion or unduly impair pedestrian safety.

3 No – 2 Yes

Jeff – No                   Leon – Yes                  Joan – No

Doreen – No             Kris - Yes

(Kris stated that based on science and professional data, this will not be a problem.)

5)     That granting the permit would be in public interest.

4 Yes – 1 No

Jeff – Yes                  Leon – Yes                  Joan – Yes

Doreen – No             Kris – Yes

6)     That the proposed use would not create hazards to the health, safety or general welfare of the public nor be detrimental to the use of or out of character with the adjacent neighborhood.

3 Yes – 2 No

Jeff – Yes                  Leon – Yes                  Joan – No

Doreen – No             Kris – Yes

7)     That the proposed use would not constitute a nuisance because of  offensive noise, vibration, smoke, dust, odor, heat, glare, or unsightliness.

5 Yes – 0 No

Doreen Connor moved that the Board deny application# 2007-102 because there was not majority vote on the required seven criteria (Item #4 did not pass.)  Joan Oliveira seconded the motion.  The motion passed, 4 - 1 (Kris Blomback dissenting).

Continuation of Case# 2007-103:  This application for special exception was withdrawn by the applicant.

Case# 2007-106:  Michael Martin has submitted an application for Special Exception.  The property is located on 20 Crescent Street on Map 2 Lot 240-A in the Residential Village (RV) Proper.  The Special Exception is requested from Article V, Section 133-22: to permit the construction of a three bay garage with owner’s/manager’s quarters on the second level.

Doreen Connor and Kris Blomback verified that all paperwork was filed correctly and abutter’s were noticed properly. 

Michael Martin presented his proposal for an accessory building with owner’s quarters.  There is currently a duplex on the site.  Another option is to put in a parking lot which does not need a special exception.  The applicant stated that this plan is better for the property and the neighborhood.  He reviewed the written answers for the seven individual criteria.  The accessory building is subordinate to the existing main building.  He stated that the neighborhood is surrounded by a parking lot, apartment building, municipal buildings, college buildings and private homes. 

Chairman Parker called for public comment at 8:26 pm. 

Marshall Connor, resident, stated that he represents his wife’s mother whose home is 30-feet from the adjoining property line.  She is against this project as it puts a two-story structure in her front yard, and her front window will face this garage.  He stated that this is a reason why the regulations were passed.  He stated that he was at the Board of Selectmen’s meeting during the sale of the property, and it was thought to be used as a single-family residence.  Another dwelling unit has already been added.  He stated that adding another unit will diminish the surrounding property values; therefore, a three-unit apartment is not appropriate for the neighborhood. 

Chairman Parker then asked for comments from the Board.

Bob Stamps, alternate, clarified that the existing duplex is a rental unit.  He asked for a description of the parking for each unit.  Mr. Martin stated that three cars would be parked in the garage bays; two spots are deeded in the lot next door and there is room for the sixth space in front of the last garage bay. 

Jeff Connor stated that it appears that there is only 15 feet from the front of the garage doors to the property line.

Chairman Parker stated that the easements were granted because it was thought to be a single-family home.  The property has already been altered to a duplex and now there is a request to add another rental unit.  There is only access from the parking lot.  He asked the applicant when he bought the property.  Mr. Martin stated that he bought the property one year ago.  He stated that he thought the property was in the (RV) district; he did not try to claim the duplex as the main house. 

Chairman Parker stated that the problem is that it appears that the applicant now wants three rental units.  He stated that he personally feels that the applicant knew the limitations.  Mr. Parker stated that it appears that the applicant would be violating the parking requirement with limited access. 

Jeff Connor stated that no matter how the applicant states the request, the proposal creates three rental dwelling units. 

Mr. Martin stated that it is his interpretation that a house with two units is allowed.  This would be an owner-occupied building with two units. 

Chairman Parker stated that a two-family dwelling (duplex) is permitted in the (RV) district.  Section 133-26 applies to the RR district and is not applicable to this case. 

Jeff Connor stated that there is a problem with lack of sufficient parking.  One space is blocking another space and is not adequate. 

Kris Blomback clarified parking requirements and setbacks and stated that the plan is encroaching on the boundary and public right-of-way. 

Joan Oliveira stated that she does not think that the proposed building is any more aesthetically pleasing than a parking lot. 

Doreen Connor stated that she is concerned about such a large structure in an already crowded neighborhood. 

Votes on the individual criteria are recorded as follows:

1)     The specific site is an appropriate location for the use or structure.

5 No – 0 Yes

Jeff – No                   Leon – No                   Joan – No

Doreen – No             Kris - No

The use requested is allowed by special exception.

5 Yes – 0 No

2)     The use will be compatible with neighboring land uses.

5 No – 0 Yes

Jeff – No                   Leon – No                   Joan – No

Doreen – No             Kris – No

3)     The requested use will not create undue traffic congestion or unduly impair pedestrian safety.

5 No – 0 Yes

Jeff – No                   Leon – No                   Joan – No

Doreen – No             Kris – No

4)     That granting the permit would be in public interest.

5 No – 0 Yes

Jeff – No                   Leon – No                   Joan – No

Doreen – No             Kris – No

5)     That the proposed use would not create hazards to the health, safety or     general welfare of the public nor be detrimental to the use of or out of character with the adjacent neighborhood.

5 No – 0 Yes

Jeff – No                   Leon – No                   Joan – No

Doreen – No             Kris – No

6)     That the proposed use would not constitute a nuisance because of  offensive noise, vibration, smoke, dust, odor, heat, glare, or unsightliness.

5 Yes – 0 No

Mr. Martin asked for the parking regulation the Board referred to.  Doreen Connor referenced Section 133-22 (g), items 1 & 2.

Joan Oliveira moved to deny the application #2007-106 to permit construction of a three-bay garage with owner’s quarters.  Doreen Connor seconded the motion.  The motion passed, 5 – 0. 

Case# 2007-107:  This application for an Area Variance was withdrawn by the applicant.

Case# 2007-108:  Gregory and Judith Champlin and Debora DeMello have submitted an application for an Area Variance.  The properties are located on 56 Dodge Hill Road on Map 1, Lots 282 and 283 in the Rural Residential (RR) District.  The Area Variance is requested from Article X, Section 133-139C: to permit a lot line adjustment between Lots 282 and 283 to allow the lots to be adjusted to 5.90 acres and 5.76 acres respectively.

Doreen Connor and Kris Blomback verified the abutter’s list.

Chairman Parker gave a brief background of this case.  One lot is .86 acre and the other lot is 10.81 acres.  The applicant wants to move the lot line to balance the lots.  The request was refused by the Planning Board as doing so created a nonconforming lot.  He had reviewed Stephanie Alexander’s consultant log which showed all communication regarding this case.  She wrote a letter to the attorney asking if the ZBA has authority to remand the lot line adjustment to the Planning Board.  The attorney from the Local Government Center responded that the Planning Board had correctly denied the application as it would have created two nonconforming lots. 

Art Siciliano, representing the applicants, stated that they are not creating two nonconforming lots; only one would be created through this lot line adjustment. 

(At this point, Mrs. Martin asked permission to make a statement regarding the previous case.  She stated that she appreciated the Board’s decision but found it disconcerting to see attitude of the Board members by their exchanges and lack of professionalism in hearing their case.  Chairman Parker acknowledged her comments.)

Mr. Siciliano continued to show the plans for the lot line adjustment.  Wetlands and contours have been delineated to show buildable area.  He stated that there are other lots in the neighborhood of 2 to 5 acres.  No new lots are being created and the density will not change. 

At 9:15 pm, Chairman Parker called for public comment. 

Kris Blomback clarified that the lot could be sold without moving the lot line. 

Bob Stamps stated that he does not see any harm in this, but needs to determine hardship. 

Chairman Parker stated that the first lot is really too small; the septic is within the well radius and will cause trouble.  He has done research and feels comfortable that the specifics of these lots make it applicable to grant the variance based on hardship.

Doreen Connor stated that the proposed plan makes sense; the septic system could be argued as a potential hardship. 

Joan Oliveira stated that they could get an easement if they needed to in the future.

Scott Osgood stated that zoning calls for 10-acre zoning minimum in that district.  They must be protective to avoid abuse in the future. 

A vote was taken on the individual criteria for granting a variance:

1)     The proposed use would not diminish surrounding property values.

5 Yes – 0 No

2)     Granting the variance would not be contrary to the public interest.

4 Yes – 1 No

Jeff – Yes                  Leon – Yes                  Joan – Yes

Doreen – Yes            Kris – No

3)     Denial of the variance would result in unnecessary hardship to the owner   because:

a)     there are special conditions (too small of a lot):

Leon – Yes.  There are limitations on the current lot and its size creates special consideration.

Jeff – No

Joan – No.  She stated that she would like to vote for it, but the problem can still be solved. 

      Chairman Parker read the summary of the Broccacia (Portsmouth) case for  guidance in determining hardship.  After more discussion about this information, the Board decided to revote on this item.

   5 Yes – 0 No

            Jeff – After discussion, he changed his vote to Yes;

            Joan – Yes                  Leon – Yes                  Doreen – Yes

            Kris - Yes

b)     The same benefit cannot be achieved by some other reasonably feasible method that would not impose an undue financial burden.

5 Yes – 0 No

4)     Granting the variance would do substantial justice.

5 Yes – 0 No

5)     The use is not contrary to the spirit of the ordinance.

5 Yes – 0 No

Joan Oliveira moved to approve the variance requested to move the boundary line making Lot 283 less than 10 acres.  Doreen Connor seconded the motion.  The motion passed, 5 – 0.

Business:

Chairman Parker passed around the consultant’s log from Stephanie Alexander.

Minutes from the April 18, 2007 meeting were reviewed and corrected.  Doreen Connor moved to accept the minutes as amended.  Jeff Connor seconded the motion; motion passed 5 – 0.   

Chairman Parker stated that there have been a number of discussions in the Planning Board about hiring a new planning assistant for the town.  Ms. Alexander had created a task list and a list of anticipated tasks that a new Town Planner may be responsible for.  He reported that the Board of Selectmen, at their meeting Tuesday night, was willing to see a stronger position be created to assist the Planning and Zoning Boards in their various tasks.  It is necessary to assist applicants put together proper applications.  The Board of Selectmen have asked the ZBA members to vote on what they want to recommend to the Board.  There is $5000 in the Zoning budget and $30,000 in the Planning budget to fund this position.  The person in this position can also bill $55 per hour to the applicant for services.  If this position becomes a town employee, the other billable money would go to the central fund.  The ZBA is requesting two hours per week (at $45 per hour) and to use the $5000 from the ZBA budget. 

Doreen Connor stated that she does not believe that it is as important that the person be in attendance at their meetings, but it is necessary to be available for the applicant to prepare materials properly, etc. 

Bob Stamps moved to accept the proposed draft of the Zoning Board’s request for a Town Planner created by Leon Parker.  Doreen Connor seconded the motion.  The motion passed, 6 – 0. 

Chairman Parker moved to adjourn at 10:10 pm.  Jeff seconded the motion.  The motion passed unanimously.

Respectfully submitted,

Jennifer Astholz

TOWN OF HENNIKER

ZONING BOARD OF ADJUSTMENT

April 18, 2007

Approved Minutes

Members Present:  Leon Parker, Chairman; Doreen Connor, Vice-Chair; Bob Stamps, alternate; Rick Patenaude, alternate

Members Excused:  Kris Blomback; Joan Oliveira; Heidi Hamel; Leo Aucoin

Others Present:  Jennifer Astholz, recording secretary; Kerri Pacheco; Jillian Schenck; Susan Tullis; David Tullis; Joe Morette: Ron Bourcier; Chris Stewart; Debbie LeBrun; Ruth Funk; Mark Hinnigar; Gaye Putaceor; Tim Lamphere; Heidi Dunn; John LeBrun; Dan Paul; Rick Daniel; Mark Moser; Jeanne Daniel

Chairman Parker called the meeting to order at 7:01 pm.

Public Hearing:

Continuation of Case #2007-101:  Landmark Planning and Development LLC on behalf of Ronald and Nancy Talbot, an application for a Special Exception.

Chairman Parker reviewed the hearing process for the audience.  Doreen Connor and Rick Patenaude, Board members, reviewed the abutters’ notices to ensure proper notification.  Chairman Parker reviewed for those in attendance that this application for Special Exception to cross wetlands was continued in order for the Conservation Commission to review the application.  As only four members were in attendance at the opening of this case, Chairman Parker gave the applicant the option to move forward with the panel or to continue the case to the next month.  Chris Stewart, applicant, made the decision to move forward with the hearing.

Mr. Stewart stated that the Dredge and Fill Application was completed by Daniel Geiger for Oak Hill Environmental Services.  Chairman Parker then read aloud the conclusion of the letter submitted by the Conservation Commission expressing no objections to the dredge and fill application. 

Ron Bourcier, engineer, presented the plan for the proposed development and the two locations which require crossing wetlands.  He stated that Mr. Geiger, the environmental scientist, could not attend the meeting due to unrelated problems  caused by the recent storms.  Mr. Bourcier provided detailed drawings of the area for easier reading.  He described an open-bottom channel, arched pipe design to be used.  Chris Stewart then read the answers to the seven criteria used in determining Special Exception. 

(Jeff Connor, alternate, arrived at 7:20 pm.)

Chairman Parker stated that this is the third time that the ZBA has reviewed this development.  He reminded everyone that they are only reviewing information pertaining to the wetlands crossing and a decision is to be made concerning approval of the two culverts presented on this plan. 

Chairman Parker asked for any public comment in favor of this application.  Hearing none, he asked for public comment against the issue.  Tim Lamphere, resident, confirmed that the Conservation Commission had reviewed the information and stated that the plan is acceptable to them.  He then stated that the Town Engineer had made a report at some time stating that the development would cause a great impact of water below the development.  Mr. Lamphere showed where his property is on the map and described flooding in the area over the last year’s severe storms.  He stated that there was 1-1/2 feet of water last spring and there was over 3-feet of standing water this past week.  He also commented that his understanding was that open-space developments are to insure a larger green space left within a development. 

Chairman Parker stated that the Planning Board is responsible for deciding how many lots can be placed within a parcel of land. 

Mr. Lamphere stated that there are wetlands on the property that are not shown on the plan.  He described a small stream that follows just below the trail.  Chairman Parker stated that while an area may be wet, there are many factors involved in classifying wetlands; the Board believes that the wetlands scientist did a thorough review of the property. 

Dan Paul, resident, asked what criteria the hydrologist used to calculate the recommended size of the culvert.  He also asked if this was sized for the extreme conditions that have occurred during the last two springs.  He stated his concern that it would provide adequate drainage and would not become blocked causing road erosion.

Ron Bourcier, responded to the residents concerns.  He stated that issues of soils, vegetation and hydrology are considered in classifying wetlands.  He stated that the culvert has not been sized for drainage as the criteria for drainage design are in the Town standards.  He explained that this is a 10-foot arched culvert with an open, natural bottom. 

There was no other public comment. 

Chairman Parker asked if this was the best place to cross the wetlands or whether this was the best place to install a road.  Mr. Stewart stated that this is the best place for minimal impact to the wetlands while meeting DES wetlands criteria. 

Doreen Connor asked if there was a way to reconfigure the design so that the wetlands only have to be crossed once.  He stated that this design creates the least amount of impact to the overall site. 

Public discussion was closed at 7:44 pm.  Chairman Parker stated that he and others have other concerns about the development concerning lengths of roads, etc, but reminded the Board that this decision relates only to the placement of the culverts. 

Voting results were as follows:

1)  The specific site is an appropriate location for the use or structure.

      5 Yes – 0 No  (Unanimous)

      Leon – Yes            Doreen – Yes            Rick – Yes

      Bob – Yes            Jeff – Yes

2)  The use requested is allowed by special exception.

      5 Yes – 0 No 

      Leon – Yes            Doreen – Yes            Rick – Yes

      Bob – Yes            Jeff – Yes

3)  The use will be compatible with neighboring land uses.

      4 Yes – 1 No

      Leon – Yes            Doreen – No                         Rick – Yes

      Bob – Yes            Jeff – Yes

4)   The requested use will not create undue traffic congestion or unduly impair pedestrian safety.

       4 Yes – 1 No

      Leon – Yes            Doreen – No                         Rick – Yes

      Bob – Yes            Jeff – Yes

5)   That granting the permit would be in the public interest.

      4 Yes – 1 No

      Leon – Yes            Doreen – No                         Rick – Yes

      Bob – Yes            Jeff – Yes

6)   That the proposed use would not create hazards to the health, safety, or general welfare of the public, nor be detrimental to the use of or out of character with the adjacent neighborhood.

      4 Yes – 1 No

      Leon – Yes            Doreen – No                         Rick – Yes

      Bob – Yes            Jeff – Yes

7)   That the proposed use would not constitute a nuisance because of offensive noise, vibration, smoke, dust, odor, heat, glare, or unsightliness.

      5 Yes – 0 No

      Leon – Yes            Doreen – Yes            Rick – Yes

      Bob – Yes            Jeff – Yes

Chairman Parker moved to approve the Special Exception with the suggesting to the Planning Board that they review the rest of the design to ensure that the crossing structures are appropriately sized.  Jeff Connor seconded the motion.  The motion passed, 5 – 0 .      

      Leon – Yes            Doreen – Yes            Rick – Yes

      Bob – Yes            Jeff – Yes

Case #2007-004:  Tom Dunn of The Henniker Youth Theatre on behalf of James Knight, has submitted an application for Use Variance.  The property is located on 29 Liberty Hill Road on Map 2 Lot 369-B in the Commercial Village (CV) District.  The Use Variance is requested from Article VIII, Section 133-32: to permit a theatre in a Commercial Village District.

Doreen Connor and Rick Patenaude verified the proper notification of abutters.  They stated that information appeared correct, but the Town clerk will verify accuracy upon her return to the office.  Receipt of a letter from the Knight Brothers was acknowledged.  Heidi Dunn is representing Tom Dunn and the Board of Directors of the Alchemist’s Workshop.  It was found that a page was missing from the copies of the application.  This was found and distributed to the Board members. 

Ms. Dunn presented the request for the building to be used by the non-profit organization, Alchemist’s Workshop, for children’s and community theatre and camp programs.  Using this building would allow for year-round activities as it is difficult and expensive to find buildings which provide adequate space and time for rehearsals and presentations.  This building has advantages for theatre use as there are no obstructive pillars, has room for lighting, storage for costumes and equipment, adequate parking and is generally conducive to this type of activity without infringing on the rights of others.  The program would not create excess noise or lighting issues for the neighbors.  Ms. Dunn stated that the theatre is an asset to the community as it encourages children to build confidence and enhance their self-esteem through the arts.  She stated that theatre offers an alternative to the sports program offered in town.  The Board of Directors has established protocols for adult supervision and care about the safety of the children enrolled in the program.  The Alchemist’s Board is growing and is dedicated to creating a fine theatre program for those who live in Henniker.  Their hope is to purchase the building over time for continued use. 

Ms. Dunn stated that having a viable community theatre program increases cultural interest in a town which enhances the town’s image; this leads to increased property values.  The building has been vacant for a long time, and it would be better for the community to see it be put to good use.  Also, this activity could bring more business to the area as bringing people to the building for performances would increase exposure of the other buildings.  Ms. Dunn stated that while this is a recreational activity, it could be looked upon as a commercial venture both for the promotion of Henniker and its own activities.  A theatre program also attracts devoted people and the type of people who want to help their children or themselves improve their skills or self-esteem. 

Chairman Parker called for public comment.  One of the Board of Directors of the Alchemist’s Workshop, Gaye Putnam, gave personal testimony as to the impact that theatre has had on her own child.  She stated that her child has been involved since he was five years old and has gone from non-speaking parts to starring in a number of the productions.  She stated that this program has been instrumental in building his self-confidence and enjoyment.  Now as a 12-year old, he has experienced increased success in school, he is not shy and speaks with confidence because of his participation in theatre.  She stated that the town supports the teen center and various sports programs; a permanent theatre in town is a worthwhile venture. 

Rick Daniel, resident, also stated that he was in favor of the project and would like to see the building put to good use. 

Joe Morette, resident, stated that it is good for more opportunities for kids to develop their skills. 

Jeanne Daniel, resident, stated that she is also in favor of the project.  She stated that their daughter recently graduated as a theatre major from Emerson College and this opportunity would have been great for her. 

Rick Patenaude and Doreen Connor both raised the issue of considering the theatre as being included in the “commercial recreational” district.  The Board members reviewed the zoning code to determine if a use variance was necessary.  Chairman Parker stated that it was the consensus of the Board that the building could be used for a wide variety of things, but hardship was not proven. 

Doreen Connor moved to find the Alchemist’s Workshop/Henniker Youth Theatre did not need a variance because the use falls within the Commercial Recreational activity as a matter of right in the Commercial Village District.  Jeff Connor seconded the motion.  The motion passed, 5 – 0.

      Leon – Yes            Doreen – Yes            Rick – Yes

      Bob – Yes            Jeff – Yes

Chairman Parker told Mrs. Dunn that they must go before the Planning Board for site plan review. 

Case 2007-105:  Mark Mose, Moser Engineering on behalf of New England College, has submitted an application for a Special Exception.  The property is located on 44 Union Street on Map 2 Lot 461 in the Residential Village (RV) Proper.  The Special Exception is requested from Article V, Section 133-22 to permit student housing, defined as a “facility engaging in public services including but not limited to education, research, health, and public worship.”

Chairman Parker stated that this lot is actually in the Educational (ED) District.  The assessor made a mistake on the designation of zoning on several parcels in town.  He stated that he wants to make sure that everyone knows that this lot is clearly within the (ED) District; therefore, the case should be corrected to Article V, Section 133-33 (ED) District. 

Mark Moser, Moser Engineering, is an engineer representing New England College.  He presented their request for a proposed dormitory for resident housing on Union Street.  They expect to house 50–80 students.  They intend to use other remote lots for parking.  The seven items used for determining criteria were reviewed. 

Chairman Parker called for any public in favor of the proposal.  Hearing none, he called for public comment against. 

Kerri Pacheco, resident, stated that she lives directly behind the Union Street dormitory.  She stated that the neighbors got together to speak against the proposal for many reasons.  She stated that the existing dormitory housing only 25 students is not properly cared for by the college; the additional dormitory will increase garbage, traffic, noise and threaten safety. 

Jillian Schenck, resident, stated that the condition of the existing dormitory does not make it conducive to living next door to a college.  The dumpster has never been screened and garbage is often overflowing or blowing around other yards.  She stated that there is no buffer between properties and she can see clearly into the dorm rooms.  Stating that she understands the need for safe lighting, she stated that three stairwells have continual bright lighting.  She stated that noise is a big factors with college kids as warm weather means speakers put in open windows, yelling across to each other; this is disturbing, especially in the middle of the night.  She stated that the students use their exit alley or jump over the stone wall, crossing her yard to reach the path.  Students have also walked past her house banging on the walls at 2:00 in the morning.  She stated that the police are called routinely for disturbances.  She stated that the Town police respond quickly, however, the campus police do not.  She stated that introducing another dormitory with that many kids is asking for increased problems.  She also stated that traffic and safety are a big concern as the students drive too fast in an area with little site distance.

Susan Tullis, resident for 25 years, presented photographs and a copy of her statement against this proposal for the Board members.  She stated that the neighbors have signed a written objection to this proposal.  She researched the terms from when the other dormitory was approved on April 28, 1989 and stated that those same points were problems considered then; now they are proposing a dormitory three times larger than what is already there.  She stated that the proposed use is not compatible with family residential housing.  She stated that college residents land use is much different than a property owner’s use.  She stated that parking has always been an issue and pedestrian safety, especially for children, will be of prime importance.  She suggested that the college investigate using the land that is underutilized behind the ice rink.  She also stated that property values would be negatively affected.  Ms. Tullis stated that the college is not living up to being a good neighbor and problems already abound with the existing dormitory.

David Tullis, resident, stated that the college has not abided by the statutes imposed on the original development.  There has been increased parking and increased traffic.  Residents on Water Street have to travel Union Street, thereby creating more safety issues.  While he understands the nature of college students, the increased lighting, noise, traffic, garbage, etc is not conducive to residential zoning. 

Deena and Cliff Stevenson also stated that they are against the proposed dormitory location.  They agreed that property values of the neighborhood will diminish and parking issues and unsafe traffic practices will increase.  Mr. Stevenson suggested that college life would be better for the students if it was kept to the west side of the street with the center of the complex being the main college buildings. 

Rick Daniel, resident, stated that they knew they were moving into a college town 25 years ago.  Changes were made at the time to accommodate the 6:1 density ration when the other dormitory was built.  Now, however, excessive parking and heavy traffic is a huge problem and is of paramount importance.  There is increased truck traffic and the additional traffic to the high school which was not always there before.  He also suggested that the other side of Rte. 114 would be a better placement for more college housing. 

John LeBrun, resident, verified the need for two parking spaces per dwelling unit.  That creates the need for 80 parking spaces on the premises, not down the road as proposed.  He stated that based on the ordinance there is no basis to consider this.  He also stated that this proposal would certainly create increased traffic, threaten pedestrian safety and increase noise, lighting, pollution, etc.  He asked how the college would be held accountable for attending to issues caused by this.  He stated that the proposal is not close to complying with at least four of the specific criteria for granting a special exception. 

Ruth Funk, resident, stated that the obvious increase of noise, lighting, trash and traffic would make it not compatible with the neighboring land use.  She stated that the safety of young girls walking home from school could be threatened by the increase of college students.  Drinking is a known  problem as well as the college students do not cross the street at the crosswalks, endangering everyone. 

Mark Hennigar, resident, stated that there are approximately 300 kids living in that area and this proposal adds about 25-percent more.  He stated that there is no more space for parking.  The trash, beer bottles lying around, noise, etc is not nice for the residential property owners. 

Jeanne Daniel, resident, stated that the proposed dormitory seems to be closer to residential houses than the existing dormitories. 

Rick Daniel stated that NEC is the largest employer in town and all of the residents acknowledge the contribution that the school makes to the town.  They want to find a way to help the school, but this area is not the place to build another housing facility.

Mr. and Mrs. Tullis stated that they both graduated from NEC and they appreciate the school; however, they also do not feel that this is the place for another dorm. 

Ruth Funk also reminded the Board of the problems associated with college drinking and the proximity of the proposed dormitory to the river. 

Chairman Parker asked the representative from the college why they should approve a special exception when the most commonly used symbol associated with the college, the wooden bridge, is in such a state of disrepair.

Kevin Cormier, CFO of New England College, responded by acknowledging the problems associated with maintenance over the last several years.  He stated that the college has been highly tuition dependent and has carried a huge amount of debt which has caused many problems.  He gave a brief history of the financial aspects of the college and stated that the most comprehensive capital plan was presented to the Board of Directors last Monday.  He stated that the college is almost completely out of revolving debt and is now able to put money into facilities.  Improvement and repairs have been made to the boilers, sprinklers, fire alarms, underground storage tanks, roofing and refurbishing the dining hall.  The technology systems need to be upgraded.  All of these were of utmost importance but are difficult to see the improvements.  He stated that the college is a much more viable entity now than it was in recent years.  He also stated that the college Board has approved security cameras in selected areas to help make the students more accountable.  They recognize the problems that the residents have stated tonight.

Mark Moser stated that lack of town infrastructure in other areas caused them to look first to the Union Street site. 

Kerri Pacheco stated that the increase of students would overburden the existing infrastructure.

Rick Patenaude, Board member, stated that he does not like to tell people what they can or cannot do with their land; however, other property seems to make more sense for this need. 

Doreen Connor, Board member, stated that parking seems to be a huge item and a remote lot does not seem to be the best answer.

Chairman Parker stated that the Selectmen are dealing with college parking issues in the Community Center parking lot.

Bob Stamps, Board member, stated that the college is very important to the town; however, he would not like to see them impact their neighbors in such a negative way.

Jeanne Daniel stated that the Union Street dormitory was done to link them together.  Now the open space will be taken away which was the justification to build the first building.

Jeff Connor, Board member, stated that it is not their place to tell another what to do with their property.  He stated that both of his parents were employed by the college and he has also worked for the college.  He stated that he does not agree with the need for housing for 80 students, but there is probably a need for 160 students.  He agrees with the need for more housing, but he does not agree with the location based on the area.  He commended the college for the good strides they have made in recent years, but their property could be utilized in a better way based on their master plan.

Chairman Parker stated that everyone agrees on the importance of the college to the town, and he acknowledged the efforts of the CFO to continue improvement by making worthwhile plans. 

Chairman Parker called for a vote on the individual criteria for allowing special exception:

1)  The specific site is an appropriate location for the use or structure.

      5 No – 0 Yes 

      Leon – No            Doreen – No             Rick – No

      Bob – No              Jeff – No

2)  The use requested is allowed by special exception.

      5 Yes – 0 No 

      Leon – Yes            Doreen – Yes            Rick – Yes

      Bob – Yes            Jeff – Yes

3)  The use will be compatible with neighboring land uses.

      5 No – 0 Yes

      Leon – No            Doreen – No                         Rick – No

      Bob – No            Jeff – No

4)   The requested use will not create undue traffic congestion or unduly impair pedestrian safety.

       5 No – 0 Yes

      Leon – No            Doreen – No                         Rick – No

      Bob – No              Jeff – No

5)   That granting the permit would be in the public interest.

      5 No – 0 Yes

      Leon – No            Doreen – No                         Rick – No

      Bob – No              Jeff – No

6)   That the proposed use would not create hazards to the health, safety, or general welfare of the public, nor be detrimental to the use of or out of character with the adjacent neighborhood.

      5 No – 0 Yes

      Leon – No            Doreen – No                         Rick – No

      Bob – No              Jeff – No

7)   That the proposed use would not constitute a nuisance because of offensive noise, vibration, smoke, dust, odor, heat, glare, or unsightliness.

      3 Yes – 2 No

      Leon – Yes            Doreen – Yes            Rick – No

      Bob – No              Jeff – Yes

Doreen Connor moved to deny the request for special exception regarding case #2007-105 as it did not reach majority vote on all seven criteria.  Bob Stamps seconded the motion.  The motion passed, 5 – 0.

Chairman Parker commented that he believes in the growth of the college and wants to see it succeed.

Review of Minutes:  Rick Patenaude moved to accept the minutes of the March 21, 2007 meeting as corrected.  Jeff Connor seconded the motion; motion carried, 5-0.

The meeting was adjourned at 10:15 pm.

Respectfully submitted,

Jennifer Astholz

Recording Secretary

TOWN OF HENNIKER

ZONING BOARD OF ADJUSTMENT

MARCH 21, 2007

Approved Minutes

Members Present:  Chairman Leon Parker; Doreen Connor; Kris Blomback

Alternates Rick Patenaude and Jeff Connor sat on the Board.  Leo Aucoin, Alternate, was in the audience.

Members Excused:  Joan Oliveira; Bob Stamps and Heidi Hamel were previously excused from tonight’s meeting.

Others Present:  Jennifer Astholz, recording secretary; Charles and Carol LeClair; Bruce Corsetti; Jennifer McCourt; Ken Erikson; Sean Curran, Esq.; Joe Morette; Ron Taylor; Lisa and Skip Hustis; Scott Osgood, and Paul Brien.

Chairman Parker called the meeting to order at 7:00 pm. 

Public Hearing:

Case #2007-001:  Landmark Planning and Development LLC on behalf of Ronald and Nancy Talbot, have submitted an application for a Special Exception to permit the crossing of two (2) wetlands. 

The Conservation Commission has not yet reviewed the dredge and fill application.  Therefore, this case has been continued to the meeting of April 18, 2007.  If more time is needed, the case will be continued until the Conservation Commission is ready to present their findings.

Case #2007-102:  Joseph and Jinhua Xian Morette have submitted an application for a Special Exception.  The property is located on 19 Newton Road on Map 2 Lots 369C and 369D in the Commercial Village (CV) District.  The Special Exception is requested from Article VIII, Section 133-32A: for the purpose of consolidating Lots 369C and 369D, then subdividing into 3 separate lots and to create multi family development on each lot.

Doreen Connor and Kris Blomback verified that all paperwork was in order and abutters were notified properly of this hearing.  Chairman Parker reviewed the hearing process for the audience.

Chairman Parker stated that procedural matters must be addressed before the actual hearing as there has been some confusion over the process of the Morette’s case.   Mr. Morette had come before the ZBA on November 15, 2006 (Case #2006-018) and had initially presented an application for a special exception requesting 10, two-bedroom multi family residential units on each of five different lots.  The Board rejected this plan.   On December 20, 2006 Sean Curran, Esq., requested a rehearing of their case to be held on January 17, 2007.  At the January 17, 2007 meeting, Jennifer McCourt, on behalf of the applicant, formally withdrew their request for rehearing as they learned that the proposal would require substantially different plans based on the wetlands information they had received.  Mr. Parker stated that the argument could be made that this was a new case to be heard or it could be considered a resubmission of a plan that has previously been submitted.  He stated that they should have a chance to be heard and will treat the application tonight as a substantially new/different application. 

Doreen Connor stated that she does not agree that this is a substantially different plan from what they had heard before.  She stated her concern has to do with the legal impact of calling it “substantially different.” 

Jennifer McCourt, (McCourt Engineering) stated that she has a major concern with that interpretation as they formally withdrew their request for a rehearing of the previous plan upon receipt of the wetlands report.  She stated that the entire project has been changed which has required much work and energy.  She also reported that this application included information that was not included in the original application.

Rick Patenaude, board member, stated that he sees no problem in hearing this as a substantially different plan.

Ms. Connor referred to a court case against the Town of Alton regarding a plan for 136 campsites; the plan was rejected.  The applicant came back with a plan of 100 sites.  The court ruled that while the plan was changed, it was not substantially different in use.  She stated that by allowing this to go forward, the issue would be having other hearings afterwards and there would be no ending point. 

Kris Blomback, board member, asked for clear explanation of the ramifications of hearing the case either as a new application or as a rehearing. 

Chairman Parker explained that how the case is classified decides whether this is the applicant’s last chance to come before the ZBA for this idea or it would be considered their first chance (as in a new application).  If it is approved, it would require a citizen to take the case to court to have the decision contested; if the Board rejects their request, the applicant could go to court.

Atty. Curran stated his understanding of case law suggests that there is not a one-time right to a re-hearing.  He also reminded the Board that they withdrew the application as the wetlands information removed a great deal of land, thereby significantly changing what they were planning to do.  He also explained a significant change in their plans involves declaring the form of ownership of the properties.  This application states that this is a condominium project.  He stated their intention made in January was to withdraw the former application and file a new application. 

Ms. McCourt stated that the new plans involve specifics to the change in ownership, buildings have been moved away from property lines and increased information about traffic flow and the surrounding neighborhood.  She referenced a letter being on file formally withdrawing the previous application. 

Ms. Connor stated that she agrees that there is a greater amount of information included in this application; however, case law is about different use.  She stated that the law is in effect because if there is no provision for finality, there would be no end to applications. 

(Chairman Parker distributed the new Planning and Land Use Regulation manual to the board members.)

Jeff Connor stated that the plan for a multi family development has changed, but the use of the land is ultimately the same. 

Chairman Parker stated that a material change has not occurred in this application as it is not a different use than the previous application.  He stated that the process is in place to avoid what has happened.  They made an application, and the board expressed their opinions.  The applicant changed their plans to deal with the concerns raised.  If there is no way to put an end to that, it could keep going.  The Board agreed that they all want to hear the application, but there is a procedural question as to what might happen in the future. 

Leo Aucoin, alternate board member, stated that he sees this as a substantially different application as there is a big difference between ownership properties (condos) versus apartments.  He also stated that the type of dwelling being described is much different. 

Chairman Parker stated that the records will reflect the discussion that has taken place tonight.  He then called for a Board vote to determine if this will be considered a substantially different application:  (3 NO – 2 YES)

Rick – YES; Kris – YES; Doreen – NO; Jeff – NO; Leon – NO

Chairman Parker decided to hear the application as a revision of the previous plan and being heard under the appeal. 

(Ron Taylor left at that point).

Chairman Parker stated that prior to the previous hearing counsel for the applicant wrote a letter asking Doreen Connor to recuse herself from the hearing, citing RSA’s pertaining to Selectmen.  After reviewing all pertinent information, it was decided for Ms. Connor NOT to recuse herself from the proceedings.

7:32 pm – Jennifer McCourt presented the application as a revised plan of the property located on Newton Road.  She showed the actual field survey provided by Belanger Associates which outlines the wetlands on the property.  The area is in the CV zone and is located on the back side of the Liberty Hill Condo Association. 

Ms. McCourt proposed their application for 47 townhouse-style condo units on three separate lots.  The end units have two-car garages; there is a six-unit condo at the end with a one-car garage on either side.  There is also parking in front.  She stated that because of the ratios required, they may or may not be covered carports.  She stated that this proposal meets Article 133-42 for multi family units.  She stated their understanding of having to go through site plan review and the requirement of an impact study.

Ms. McCourt continued her presentation of their compliance with Article XVI. 133-42 as was submitted to the board in writing. 

Also submitted in writing were their explanations of compliance with Article XVI. 133-62C stating their reasons that the specific site is 1) appropriate location for the use/structure; 2) allowed by special exception; 3) will be compatible with neighboring land uses; 4) will not create undue traffic congestion or impair pedestrian safety; 5) will be in the public interest; 6) will not create hazards to the health, safety or general welfare of the public; 7) will not constitute a nuisance because of offensive noise, vibration, smoke, dust, odor, heat, glare or unsightliness. 

Ms. McCourt distributed Google earth pictures to show where the proposed development would be within the area.  She stated that all of the existing structures on the property will be removed.  This development will put a stop to the large truck traffic generated by the Henniker saw company.  Ms. McCourt stated that the proposed development will be an improvement over the existing use. 

The proposed units consist of 1000 square feet of living area.  Typically, the types of people looking for this type of housing are people just starting out or empty-nesters.  They envision police officers, teachers, bank tellers, etc. in the market for this type of housing; this is not subsidized housing. 

The concerns relative to the development becoming a nuisance are addressed in the condo documents.  This document provides ways for owners to deal with those types of neighborhood issues. 

Ms. McCourt reviewed the Lot Density Table on the plans.  Information was added about sidewalks so that they are included into the calculation of impervious area.  She also described the improved plan which allows better traffic flow so that cars can pass all the way through without having to stop to turn around. 

At 8:00 pm, Chairman Parker called for comment from the applicant.  Mr. Morette distributed letters from the police chief, a realtor, and information from the legislature on workforce/affordable housing and information about New Hampshire residential development and school impact.  Mr. Morette stated that he envisions this plan to help businesses and the community grow stronger.  He reminded the audience that he is not acting as a big developer would, look to build in the area and just walk away.  He stated that he has spoken to one abutter who told of his plans to move out of town due to the tax burden. 

Sean Curran, Esq., commented on the issue of public interest, citing

RSA 672-1.3E, which states that all residents benefit from various types of housing; developing houses that working people can afford addresses the need in Henniker.  He stated that the statutes are clear regarding the positive attributes of multi family housing needs.  He also spoke about the Henniker Master Plan which addresses this need for empty-nesters/retirees and those starting out. 

Mr. Curran also referred to the letter from the police chief stating that this development compares to the Henniker Knolls complex, and he does not anticipate any impact to town services. 

Chairman Parker read the letter from a real estate broker from Hometown Realty; this letter referenced the plans submitted prior.  This broker stated that they anticipate the inside units selling for $157,900 to $159,900 and the end units selling for approximately $165,900.  Comparisons were made to a condo sold in River Meadows on 11/30/06 for $147,000 while others sold for $161,500.  The broker stated that there is a need in Henniker for housing in the under $200,000 market. 

Copies of a letter submitted to the ZBA by Carol LeClair, a Henniker resident, were provided to the public.  Chairman Parker read the letter out loud. 

Chairman Parker next called for public comment in favor of the plan.

Paul Brien, resident, stated his opinion that the form of ownership was important as families in a condo situation have a vested interest in their property and strive to keep the property looking nice.  He stated that there is a formal document which must be adhered to or fines can be imposed.  He referred to River Meadows as looking well-kept and expects that this development would look at least as good, or better, than that.  He also stated that it would certainly be an improvement over the current conditions.  Mr. Bryan referred to the studies that show that there would be no significant impact to town services.  He stated that the school population has been declining for the last couple of years.  A two-bedroom condo cannot be expanded upon like a single-family home can so many kids will not be expected to impact the school.  He praised the idea as providing a controlled foothold for people to begin ownership in Henniker.  He stated that this can be a town primarily of high-end homes or can be a place to welcome young working people.

Chairman Parker then called for comment from those opposing the proposed plan.

Bruce Corsetti, resident and neighbor of the area, stated that he was not saying whether he was for or against the project, but would like to share some concerns.  He stated that his property is on the corner of Western Avenue and Newton Road and there is no clear center line down the road.  He stated that the current road is 13 to 15 feet wide and questioned where the additional 5 to 7 feet would come from to widen the road.  He stated that determination of the actual road and right-of-way would have to be made as there is speculation that the porch of the building at 104 Western Avenue stands on the right-of-way.  He stated that documents regarding his property go back to at least 1863.  Mr. Corsetti also stated he saw no notice of the hearing tonight, but was only made aware of it after seeing a surveyor working around his property. 

Ken Erkson, a resident at 699 Western Avenue, is a neighbor, but not an abutter.  He stated that he is a proponent of affordable housing and believes that this plan has been substantially improved.  He stated that one major objection to the plan relates to the high density multi-family development.  He stated that the information presented regarding traffic, number of school kids and the amount that taxes will offset the increased costs are subject to debate.  He stated that his only fundamental objection is to the high density of the development so his opinion is that this plan is not in the best interest to the residents of Henniker.

Elizabeth Hustis, resident, stated that 30 years in the property management business in the community has taught her that a large development of 47 units tinkers with the fragile ratio of supply and demand.  She concurred with the need for affordable housing, but argued that people are very willing to live in 1000-square feet with two children, but 1000-square feet is too small for people wanting ownership.  She stated that she has been on the School Board for 23 years and believes young families will buy these units and will impact the school system more than what the studies show.  Mrs. Hustis referred to NEC being the largest business in town.   Many people in our community rent apartments.  The prices will drop and this will affect the total assessment for the whole town.  She asked that the project be greatly reduced. 

Chairman Parker stated that he heard that the college is actually looking for rental units.  He asked Ms. Hustis for a current rate of vacancy of rental units.  She estimated about a 10-percent vacancy of rentals.   A letter submitted by Mr. and Mrs. Hustis was distributed to the Board members outlining their concerns. 

Mr. Curran stated that rental vacancies dropped to approximately 4-percent statewide (2004 study).   Mrs. Hustis stated that it was 5-percent but has increased recently.  She stated that some areas may still be 5 – 7 percent; however, in this area, she states the vacancies have risen. 

Ms. McCourt stated that Henniker has a Growth Management Ordinance which would regulate multi-family development.  The entire project would not be completed at once.  She stated that five units per year per lot could be constructed (total of 15).  This means the best-case scenario would take three years for the complete building process.  Phasing is handled by the Planning Board.  She also commented on the school impact study from 2005 in Laconia which found .9 - .8 students per unit.  Ms. McCourt stated that the gravel travelway on Newton Road is 13 – 15 feet wide, with a wider right-of-way.  She stated that documents have been found which show that there are actual legitimate right-of-way boundaries marked on the deeds.  The Town owns a larger portion of that road and the surveyors will have to look at that closely. 

Chairman Parker invited the panel to ask questions of the applicant. 

Kris Blomback stated that the unit density falls into the Town ordinance and the plans meet the required ratios. 

Doreen Connor clarified the statistic about the traffic study showing 275 one-way trips per day.  She asked where the land would come from to upgrade the road; Ms. McCourt stated that she was certain that lawns will be affected, but she could not comment until further research and surveying was completed.  Roads will be handled in the Planning Board and Board of Selectmen processes.  Ms. Connor also asked about the number of dumpsters planned at the development.  Ms. McCourt stated that a total of five dumpsters are planned, one for each building.  The waste management company is typically contracted for one run per week. 

Mr. Corsetti asked about surveys which may be conflicted.  Ms. McCourt stated that there are two surveys of the property which are, in fact, conflicting.  Mr. Corsetti wanted it stated for the record that if they are considering action on his side of the road such as taking down trees, etc, then something needs to be done on the other side of the road as well to gain the legal right-of-way width.  He intends to research the deed to see when and where the boundary lines were put in place (c1863). 

Ms. McCourt explained that the right-of-way and edge of pavement are two different things.  Their desire is to disturb as little as possible and will design around any areas that they can. 

Jeff Connor asked if they have yet looked at drainage on the proposed new road as the area is long and flat.  Ms. McCourt stated that she is very familiar with the area and drainage management practices will be in place to mitigate this.  She stated that they are not in that part of the design phase yet. 

Chairman Parker asked for the designation of the buildings, as he sees up to seven buildings on the plan.  Ms. McCourt stated that the buildings share a joint foundation and fire walls and touch at the corners of the garages.   The design follows the law and building code.  Discussion followed about the fact that as long as there is some contact at some point the structures can be considered as one building.

Chairman Parker stated for the audience that the condo regulations were provided, however, they are just in draft form and the Board has not read them yet.

Ms. McCourt said that there is no common area or meeting room; usually the larger developments which have over 100 units include a common meeting space.  There is room for a potential playground area should the owners decide.

Mr. Curran explained that the condo regulations are a “work in progress,” they are not specific yet; however, he believes that there is a restriction of no more than two persons allowed per bedroom. 

Ms. McCourt explained that the condo association would take over once the development reaches 85–90 percent occupancy.  The regulatory document would cover such aspects of grounds maintenance, trash removal, snow plowing, etc.  She stated that typically the association board is in place before the transfer of power happens. 

Chairman Parker stated that this project is of the nature that he has been in favor of for several years; however, his concern is over the scale of the project.  He stated that the largest building is approximately 2.7 times bigger than the largest office building in the Liberty Hill park.  He also raised issue with the development being 1.5 times larger than all the other 29 housing units described in the neighborhood.

Ms. McCourt stated that she did not list all of the houses in the area but only gave a sampling of high-density uses on smaller lots.  She stated the density ratio or 5.1: 1; compared to a multi-family unit ratio of 6:1 in this development.  The RN district requires a 10:1 ratio; it was foreseen that they would be held to that ratio in this district. She compared River Meadows having 36 units built in the late 1980’s and no other projects have been done since then.  She anticipates a minimum of a five-year buildout plan with 15 units the first year; 11 the second year, 10 in the third and fourth years and the last one completed in the fifth year. 

Chairman Parker stated that they understand that the applicant is asking for the most that can be put into the area.  He asked if an economic analysis has yet been done that would show a plan that could decrease the scope but still be economically viable for the applicant and provide affordable housing. 

Mr. Morette stated that was private financial information.  Ms. McCourt stated that she does not have that answer. 

Chairman Parker stated that the project is needed, but puts a lot of strain in one area.   Atty. Curran stated that the plans comply with the guidelines that have been set by the State and meets the mathematical requirements that are in place.  Mr. Curran stated that they are only asking for what the Town allows.

  At 9:20, Chairman Parker closed the session to public comment for Board deliberation. 

Jeff Connor stated that the only problem he sees with the plan is that it looks like a big development in a small area.  He would be more inclined to be in favor if the buildings were smaller and the development was downsized.  He stated their interest and right to making as much money as they can, but urged the Board to consider the best interests of the Town.

Leo Aucoin, alternate board member, stated that he likes the project the way it is presented.  He stated that the applicant will still have to go through the Planning Board process which may decrease the size of the project.  He stated that there is a need for this type of housing as the younger generation cannot buy in Henniker any more.  Many people are going elsewhere.  Retirees also should be able to remain in their homes.  People are looking for a place to live for under $250,000.  He questioned whether the realtor’s report of projected sales at $157,900 - $165,900 is even considered at an “affordable” price range.  He stated that having ownership in this price range will definitely bring kids into the school system.  Mr. Aucoin also stated that he has spoken with developers who are working on high-end houses in communities where they are required to also provide workforce housing.

Chairman Parker referenced an alternative housing report describing the merits of having a town center much like Henniker. 

Rick Patenaude commented on his appreciation of the honesty of the letters submitted by Mr. and Mrs. Hustis as well as by Ms. LeClair.  He stated that while there may be some impact to the Town and school, there must be a balance.  He stated that this application is made by a local landowner who has hired professionals to perform the necessary studies and create something within the law.  He stated that the plans are meant to create affordable housing; in reality, if the plan is decreased, the units will be more expensive than they were designed to be.  He stated that he does not believe it will have as great of an impact on the town as you might think.  He stated that he hopes the plan will be able to proceed as presented. 

Doreen Connor stated that she thinks the proposal is much better than what was previously presented, but the Town adopted the ordinance of one principal building per lot.  It is our job to uphold the ordinance.  She stated that Henniker has the highest percentage of multi-family units (27%) in the area described in the master plan.  She stated that she is not convinced that there is the need for more multi-family housing in Henniker.  She stated that the applicant has to prove their need for having more than one building per lot.  She stated that she does not believe that this proposal is in keeping with the spirit of the ordinance.  She reported that there are constant complaints about traffic on Hall Avenue.  She stated that issues should not be decided on our opinions but on the merits of the project being compatible with the neighborhood.  She stated that other buildings in the area are non-conforming uses that have been grandfathered in.

Kris Blomback stated that a licensed engineer designed the project within the law and regulations set by the Town.  He stated that the ZBA’s purpose is to decide on land use.  He stated that he is struggling with the idea that they want to impose limits.  He stated that the Planning Board will act as the filter as they have more factors to consider regarding specifics of the project.

Chairman Parker stated that, historically, the ZBA has taken the position that all of the details such as traffic, lighting, noise, etc. will go through the Planning Board.  The ZBA can be involved in that process also.

Doreen Connor pointed out that issues concerning traffic are one of the criteria for making their decision.

Mr. Hustis, audience member, stated that he has experience as a former member of the ZBA and would like to clarify what the hardship is in this case.  Chairman Parker stated that hardship is not a test for Special Exception. 

Ken Erikson, audience member, asked the board to consider that “best interest of the residents” is a subjective process. 

The Board decided that it is legally best to vote on each separate criteria. 

Voting results were as follows:

1) The specific site is an appropriate location for the use or structure.

    4 Yes - 1 No

    Rick – Yes              Kris – Yes            Doreen – No

    Leon – Yes            Jeff - Yes

2) The use requested is allowed by special exception.

    5 Yes – 0 No

    Rick – Yes              Kris – Yes            Doreen - Yes

    Leon – Yes            Jeff - Yes

3) The use will be compatible with neighboring land uses.

    3 Yes – 2 No

    Rick – Yes              Kris – Yes     

    Jeff – Yes; but only for land use; not fond of the size.

    Doreen – No; not aware of any land use with 47 residential units and overnight               visitors.

     Leon – No; totally out of scale for the area

4) The requested use will not create undue traffic congestion or unduly impair pedestrian safety.

    3 Will Not – 2 Will

Rick – Will Not     

Jeff – Will; think it will create safety problems and will be a mess for the neighborhood.

Kris – Will Not; would like to see traffic study.  At this point, there was discussion about the type of traffic currently on Newton Rd. and possibility of kids using a bus stop, etc.  DOT manual says proposed road can carry 200-750 trips per day.  This project should generate 275 trips/day; the lower end of the threshold. 

Doreen – Will; The road may physically handle the number of cars, but nothing was said about pedestrians; Hall Ave. is a good comparison.

Leon – Will Not; with reservations as this is a subjective issue of scale and size.  Statistics indicate if all goes as planned, this will be well below the threshold. 

5) That granting the permit would be in public interest.

    3 Yes – 2 No

Rick – Yes            Kris – Yes      Jeff – Yes

Doreen – No; troubled that this would pass with so much discussion and concern on items #3 & 4.

Leon – No; project is just too big.

6) That the proposed use would not create hazards to the health, safety, or general welfare of the public, nor be detrimental to the use of or out of character with the adjacent neighborhood.

   3 Will – 2 Will Not

Jeff – Will; on the basis of scope, increased traffic will make it out of character of the neighborhood.

Leon – Will

Doreen – Will

Kris – Will Not

Rick – Will Not

7) That the proposed use would not constitute a nuisance because of offensive noise, vibration, smoke, dust, odor, heat, glare, or unsightliness.

   5 Will Not – 0 Will

Rick – Will Not      Kris – Will Not            Jeff – Will Not

Leon – Will Not            Doreen – Will Not

Ms. McCourt stated that since traffic is a big concern, the Board may wish to attach a condition.  She stated that she would hate to see the project stopped because of lack of information.  She also stated that she could include an economic table showing the number of units relative to cost.  Kris Blomback stated that he would like to see an actual traffic study concerning the intersection in question. 

Kris Blomback moved to continue the hearing for a period of two months in order for the applicant to perform a traffic study and gather other information relative to the geometrics of the roadway and intersection as well as any other information the applicant would like included.  The Board will reconsider the seven criteria for Special Exception and vote again in light of the additional information.  Rick Patenaude seconded the motion.  The motion carried unanimously.

Doreen Connor moved to continue the hearing for Case #2007-103 until Case #2007-102 is resolved.  Rick Patenaude seconded; motion carried unanimously.  

Other Business

Chairman Parker stated that a letter of resignation has been received by Ron Taylor as he assumes the role of Selectman.  This leaves a vacancy for a full member on the Zoning Board.  Any alternates wishing to be considered full members may submit a letter of request.  He stated that Gigi LaBerge, Henniker resident, has submitted a letter to the Board of Selectmen volunteering to serve on the Board.  Chairman Parker stated that if anyone other members know who might be interested in serving the ZBA should be encouraged to submit their letters of interest.  

Case 2006-102:  In regards to the property of William and Darby McGraw at 11 Maple Street on Map 2, Lot 201 in the Village Proper (RV) District, the Applicant submitted a lot-line re-design recommended by the Planning Board to the ZBA.

Doreen Connor moved to amend the decision made on June 22, 2006, in accordance with the Planning Board’s recommended lot-line diagram.

Chairman Leon Parker seconded the motion.  The motion passed, 5-0.

Chairman Parker moved to approve the minutes as written for the January 17, 2007 meeting.  Doreen Connor seconded the motion; motion carried, 5 – 0. 

The meeting was adjourned at 11:00 pm. 

Respectfully submitted,

Jennifer Astholz

Recording Secretary

TOWN OF HENNIKER

ZONING BOARD OF ADJUSTMENT

 JANUARY 17, 2007

Approved Minutes

Members Present:  Leon Parker, Chairman; Doreen Connor, Vice-Chairman; Ron Taylor; Kris Blomback; Bob Stamps (alternate);

Members Excused:  Joan Oliveira; Alternates: Heidi Hamel; Rick Patenaude; Jeff Connor; Leo Aucoin

Others Present:  Jennifer McCourt; Joe Morette; Atty. Sean Curran; Scott Osgood; Jennifer Astholz, recording secretary

Chairman Parker called the meeting to order at 7:00 pm. 

Case #2006-018:  Jennifer McCourt stated that they had received the wetlands mapping of the property this week.  In light of this information, it was determined that the applicant would have to substantially change their proposal.  As the meeting was for the purpose of rehearing a previously presented plan, the applicant asked to recall the request for the rehearing.  Ms. McCourt stated that this new information will be helpful in developing a new plan.  The applicant will come back to the Zoning Board at a future time. 

The Board reviewed the minutes of the 12/20/06 meeting.  Ron Taylor moved to approve the minutes; Leon Parker seconded.  The motion passed, 4-0.  Kris Blomback abstained as he was not present at that meeting. 

Old Business

Chairman Parker stated that the ZBA’s proposed budget was approved by the Budget Committee and will include money for services provided by the planning consultant.

Procedure for recusing oneself from a case was also discussed.

The meeting was adjourned at 7:15 pm.

Respectfully submitted,

Jennifer Astholz