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Town of Auburn Zoning Board of Adjustment January 24, 2012
Present: Jim Lagana, Vice Chairman; Mike DiPietro, Peggy Neveu and, Elizabeth Robidoux, Members. Jeffrey Benson and Kevin Stuart, Alternates. Minutes recorded by Denise Royce.
Absent: Mark Wright, Chairman, Thomas Bassett, Alternate.
Also Present: Carrie Rouleau-Cote, Building Inspector.
Mr. Lagana informed everyone present that there would be a delay in beginning tonight’s meeting as the Board members would be meeting with Town Counsel for a brief discussion.
Mr. Lagana called the meeting to order at 7:35 p.m. Mr. Lagana introduced the Board members to those present. Mr. Lagana explained the procedure tonight’s hearing to everyone present.
Mr. Lagana elevated Mr. Benson to a full voting member for the first case as he was present at the last hearing.
REHEARING
Case #11-25 Dusty’s Transport, Inc. Carol A. Peterson 7 Priscilla Lane – Map 1, Lot 36-24 Zoned Commercial Two
Applicant was Granted a Rehearing on December 20, 2011 regarding an Appeal from an Administrative Decision (the Building Inspector) that the Building Inspector’s determination that Article 5 of the Auburn Zoning Ordinance applies to the property is unreasonably arbitrary and inconsistent within the purpose of Article 5. That the decision of the Building Inspector that mowing and removing vegetation violates the watershed protection buffer established by Article 5 and Article 1, Section 1.04 of the Auburn Zoning Ordinance in a Commercial Two zone.
Mrs. Rouleau-Côté, the Building Inspector/Code Enforcement Officer began her presentation by introducing herself to the Board members and to everyone present at tonight’s hearing. Mrs. Rouleau-Côté began by giving a history of the Auburn’s Wetland Protection Ordinance as well as a history of the site as prepared by Mrs. Rouleau-Côté as follows:
History of Auburn’s Wetland Protection Ordinance
--Auburn first adopted a wetlands protection ordinance at the Town Meeting in March of 1986. (A copy of the Town Report for 1986 and an excerpt from the 1986 Zoning Ordinance can be found in the Planning Board file)
--At that time, the Ordinance provided for a 125 foot setback from “bodies of water, brooks and streams shown as “perennial streams” or “intermittent streams” on the US Geological Survey Maps applicable to the Town of Auburn”.
--Wetlands protection ordinance has changed forms several times between its first adoption in 1986 and the current 2012 version.
--Wetlands of the size/type on Lot 36-24 have always been subject to the 125 foot setback.
History of the Site
Mrs. Rouleau-Côté reviewed with the Board members the site plan known as “A survey and site plan of Map 1 Lot 36-24 & 16-17 prepared for Dusty’s Transport, Inc.” (Sheet 1 of 2 and Sheet 2 of 2). Mrs. Rouleau-Côté explained as follows:
--The current site, approximately 5.5 acres, formerly consisted of 3 separate parcels:
(1) Lot 36-24, which contains the buildings and parking area, which has been referred to as the “courthouse lot”; (2) Lot 16-17, which was known as the “Grenier” lot after a former owner, which contains the entire pond (wetland) and has never had any building activity on it; and (3) a small strip of land in the back corner of the courthouse lot which was deeded from the Town to Dusty’s in 1996.
--Dusty’s Transport purchased Lot 36-24 in October of 1995. At that time, lot 36-24 consisted of a gambrel style building which was used for office space and a larger building which was used as the Auburn District Court.
--David Nye was the owner of Lot 36-24 prior to Dusty’s acquiring the property in 1995. In 1991, Mr. Nye obtained Planning Board approval of a site plan for the Auburn District Court use, which included adding a paved parking area and included landscaped areas around the buildings. A drainage analysis was done as part of the 1991 site plan approval (a copy of which can be found in the Planning Board file).
--Between 1991 and 1995, a lawn area between the parking lot and the side property line (which did not reach the wetland/pond), was maintained.
-- In July 1996 Dusty’s acquired Lot 16-17 (the Grenier lot).
--In July of 1996, Dusty’s applied for both subdivision and site plan approval before the Auburn Planning Board. (a copy of which can be found in the Planning Board file) The subdivision approval included a plan to annex Lot 16-17 (the Grenier lot) and the small strip of land in the back of existing lot 36-24 (known as Parcel A, which was owned by the Town), to consolidate all three parcels together to create one lot of approximately 5.5 acres.
--The Site Plan for the newly consolidated 5.5 acre lot included a proposed use of a portion of the courthouse lot for Dusty’s Transport, which would include outdoor parking and storage of trucks and equipment. The site plan also included a proposed garden supply business which would include a building for a store and office and an outdoor materials supply area. This would take place in the area which was, prior to the lot consolidation, identified as Lot 16-17, (known as the “Grenier lot”), with access to the building from Priscilla Lane.
--As part of its 1996 site plan application, Dusty’s hired Dennis Pollock of RSL Layout & Design to present the plans for the project to the Planning Board. Mr. Pollock informed the Planning Board that the site plan for Dusty’s was based on the original approved plan for the courthouse, using the drainage analysis, mitigation factors and exfiltration trench done at that time, with the trench slightly modified. [A copy of the July 3, 1996 Planning Board minutes can be found in the file].
--With respect to the site plan for the proposed garden center on the old Grenier lot, Mr. Pollock told the Planning Board that it was essentially the same design as previously approved, and that the “20 foot minimum setback required previously has been maintained.”
--This “previous approval” refers to a 1994 approved site plan for the Grenier lot which proposed an auto body shop and drilling supply warehouse. That approval, in turn, included a submission by the applicant of a “Wetland Function and Values Assessment”, also performed by RSL Layout & Design, which was in support of a “request for a reduction in the Watershed Protection Area from 125 feet to 20 feet on Lot 16-17” to allow a reasonable use of the property while still achieving the stated purpose of the Zoning Ordinance. This report proposed methods for protecting the 20 foot wetland buffer from impact, including, after construction, “maintaining the 20 foot buffer in as undisturbed state as possible.” [A copy of the Wetland Functions and Values Assessment, Tax Map 1 – Lot 16-17, October 24, 1994 can be found in the file].
--Note that Dusty’s July 1996 site plan proposal for the garden center was the third proposal for development on the former Grenier lot since 1986, which is currently still vacant. All three proposals sought relief from the 125’ setback. Dusty’s garden center proposal was preceded by the Grenier auto body shop proposal, and basically piggy-backed on the Grenier application. The Grenier proposal was preceded by a 1986 application which included a request to the Auburn ZBA for 2 variances. The ZBA granted a request for a variance to permit a building to be constructed less than 125’, but at least 50’ from a wetland. The ZBA denied a request to place a septic system less than 125’ from a wetland. [A copy of the Notices of Decision, dated September 24, 1986 can be found in the file].
--Since 1986, there have been three proposals for development on the portion of this lot which was formerly known as Lot 16-17 or the “Grenier lot”. All three proposals sought relief from the 125 foot setback. The 1996 proposal by this applicant requested relief to a 20 foot buffer which would remain in its undisturbed state to the extent possible. Despite the previous site plan approvals, there has never been any approved disturbance of the buffer on the portion of the property that contains the wetland, as none of the developments were ever constructed.
--Returning to 1996 when the lots were consolidated, Dusty’s only inherited whatever grandfathered rights may have existed on Lot 36-24 when it was purchased in October of 1995 and on Lot 16-17 when it was acquired/consolidated in 1996.
--At that point, Auburn’s Ordinance required a 125 foot setback. There had been NO established “use” of infringing on the wetlands setback on Lot 16-17. The only thing established on that lot was a site plan approval reducing the setback to 20’, but that site plan was abandoned and no actual infringement had occurred.
--On the courthouse lot, the only established use in violation of the 125 foot setback was the landscaping around the buildings and the mowing of lawn to the property line on Lot 36-24. At that time, the property line of Lot 36-24 was approximately 10 feet from the edge of the wetland. There was no established invasion inside of the 10 feet from the wetland, as that area was part of Lot 16-17 and the owner of that lot conceded the 125 foot setback in its 1994 site plan application.
--Thus, there was no “established grandfathered use” of the property by clearing to the edge of the wetland” in 1995 when Dusty’s acquired the courthouse lot, nor in 1996 when the lots were consolidated.
Mrs. Rouleau-Côté reminded the Board members of the fly over pictures that were presented by the Conservation Commission of the property that the Board reviewed at the first hearing for Dusty’s Transport. At this time, the Board members were provided with a package of fly over images from Google Earth for 7 Priscilla Lane, Auburn, New Hampshire that had been given to her from the Conservation Commission. The images of the property begin in 1992 through to 2011.
--There has been no credible evidence presented that Dusty’s used the property by mowing and/or clearing to the edge of the wetland prior to the 2010 site visit and subsequent enforcement effort in this case.
However, even if Dusty’s did violate the setback at some point between 1996 and 2010, a landowner cannot establish a grandfathered use by engaging in an unpermitted use after a zoning ordinance change prohibits such use. Even if the Town failed to take enforcement against any clearing or mowing which is claimed to have occurred between 1996 and 2010, this does not provide Dusty’s with a grandfathered use or activity, nor does it prevent enforcement action at this time. You don’t have a vested right to continue to violate an ordinance simply because you have managed to avoid enforcement efforts in the past.
--In concluding, enforcement in this case could require NO mowing or clearing in any manner whatsoever on the Grenier side of the wetland or beyond the former property line on the courthouse side, to fully enforce the applicable 125 foot setback. However, trying to be reasonable and recognizing the lawn mowing that took place when the courthouse was in use before and after the Dusty’s Transport ownership, I have only sought to enforce the setback in the more immediate area that was natural wetland vegetation around the perimeter of the wetland itself on the courthouse side.
--Understand that the clearing of this vegetation occurred after we had met with the applicant. We had met with the applicant and pointed out the current zoning regulations and after that point the clearing occurred. The relief should have been sought at that point when there was a question as to whether there was an enforceability of the wetlands ordinance not to remove the vegetation and then continue on.
--Bear in mind that much of what the applicant did may have been permitted through the conditional use permit process before the Planning Board. If she had worked with the Planning Board and the Conservation Commission, she would likely have been permitted to accomplish some of the activity that occurred, but the activity would have been performed in a manner which protected and/or minimized damage to the wetland and surrounding vegetative buffer.
Mrs. Rouleau-Côté concluded her presentation and asked the Board members if they had any questions at this time. Mr. Lagana thanked Mrs. Rouleau-Côté and asked her to expound on the comment that was made regarding the clearing of the property occurred after the applicant met with the Code Enforcement Officer. Mrs. Rouleau-Côté said, this is most grievous in the sense that after she was first made aware of the situation, of which the Board members all have a copy of the timeline of the enforcement actions. Basically, she had met with Ms. Peterson on site in early August 2010 after she received a phone call that there was removal of vegetation occurring. She went out on August 4, 2010 and met with Ms. Peterson on-site and walked the entire courthouse property, along Priscilla Lane and over to the former Grenier property. They went over what the current conditions were like and what she had started to clear and a large area of vegetation that she completely cleared and made a pathway from an area that had historically been mowed on the Grenier site to the wetland that was a wide open swath where all the vegetation had been removed. At that point, a comment was made to Ms. Peterson that “that is exactly what should not be occurring without first going to the Planning Board and Conservations Commission through the Conditional Use Permit” because whatever buffer that was there was being totally removed. Mrs. Rouleau-Côté informed the Board members that she did have photos that were presented at the first hearing if the Board wished to review them. Mr. Lagana asked Mrs. Rouleau-Côté that, after she made that comment, was it her position that the activity continued and more clearing occurred? Mrs. Rouleau-Côté reiterated that, the comment was made in August 2010 and I explained the process that she needed to go through; she had a conversation at the Planning Board level which resulted in a comment being made by the Planning Board that they wanted to have town counsel comment on it. That was not her function, she had already made her interpretation on what the ordinance was and she had already explained the proper procedure to go through to appeal. In April, 2011 the entire wetland buffer was mowed down and at that point a Notice of Violation was issued. Mr. Lagana thanked Mrs. Rouleau-Côté and asked the Board members if they had any questions.
Mr. DiPietro asked, he saw the photographs of the fly overs and asked how old would she establish the growth that was in that buffer before it was cut. Mrs. Rouleau-Côté stated that she has not been back on the property since it has been cut. Mr. DiPietro asked, when it was cut, was it 5 or 10 years’ worth of growth. Mrs. Rouleau-Côté said absolutely and explained that there were saplings that were of decent diameter and for the length of time that she has been in Auburn and has utilized the Wayne Eddows Field she has never known the property to be mowed down to the extent it is currently. There was substantial growth of shrubs and trees but was difficult to measure calipers or diameters of trees but there was definitely a healthy vegetated stand around the wetland. Mr. DiPietro asked if only the brush and the trees cut and was the soils disturbed. Mrs. Rouleau-Côté said that no stumps were removed and even after the Notice of Violation was issued, the area was mowed a second time. The sedge grass began to grow back and it was mowed a second time. Mr. Lagana asked if there were any further questions. None were noted. Mr. Lagana noted that they would proceed with the applicant.
Attorney Lazos began by introducing himself and stated that he was before the Board tonight to represent Dusty’s Transport. Attorney Lazos wanted to point out a few things that they had. The issue is whether there were improvements to the property prior to adopting the wetlands ordinance and has not been able to obtain a copy of the original ordinance. For the purpose of his discussion, he will just assume that it had the restrictions that the current ordinance has but was not particularly relevant to this discussion. The real question is, when were improvements made on this property and if those improvements were constructed prior to 1986, the question becomes what activities were done on the property and to what extent was the property maintained and cleared down to the water line. The information that they have is that Haron Corporation was the owner of this property in 1984 thereabouts. They obtained a subdivision approval at the end of 1984 and based on discussions with the owner of Haron Corporation by his client, he confirmed that the structures, the parking lot and the parking lot on this property were constructed by Haron Corporation in 1985. That is the basis of their discussion. There has been a lot of talk about what was proposed in 1996 and subsequently and what the parties had agreed to in 1996 and none of those plans have ever been constructed. So, as far as he was concerned, those proposals and plans are no longer valid. No action, no construction on those plans was ever done so they are ineffective. To claim that his client in 1996 or the predecessor of his client in 1996 came in with a proposal and agreed to do certain things with the buffer is irrelevant because none of it was ever built. Again, the question becomes when was a building built and what was the activity on the property at that time. The information that they have based on the relationship with Haron Corporation and with the District Court is that when the District Court was a tenant of this property required that the area between the building and the parking lot and the water be mowed and kept open. In fact, his client’s son was responsible for the property in those days confirmed that the area was maintained and required to be maintained by the District Court and in fact, required his client to continue to mow that whole area right to the water line which in fact his client did from the time that she purchased the property in 1996 until the District Court moved out in 2008. They have an issue concerning when was construction done and what was maintained. It is clear to them based on what they saw on the property and based on the practices of the District Court that there was never any vegetation other than grass and some trees down to the water line to the edge of the property. Their position is that those areas were maintained and when they arrived in 1996 those areas in fact were clear and open and were maintained consistently throughout. In fact, after the District Court moved out in 2008, his client continued those activities that previously existed; however, she did restrict her removal down to the water line to one time a year in 2008, 2009 and 2010 and believed her last work was done in November 2010.
Attorney Lazos talked about the aerial photographs that were submitted and explained that they were deceiving because if you look at the pictures of the property there are trees on the property and they create a tree line and if the trees are in leaf, they are covered up. If you look at the aerial photograph of 1992 you will see that the brook is even smaller than what it is now. The brook has actually expanded because of some beavers. They believe that the culvert is a little bit high so the water is not flowing out as it should but that was a discussion for another day. If you compare the visuals from 1992 to the present, you can see that the brook has actually gotten bigger and so it is actually closer to the parking lot and building than it was back in 1992. Their position is is that they have consistently maintained this property and has consistently cleared it during the regime of the District Court because their employees utilized the lunch area outside and did not want to be exposed to snakes, reptiles or whatever else came up from the water and that the District Court demanded that it be maintained that way. Attorney Lazos commented that, that was their position concerning the history of the property and believed that by the discussions of the owner of Haron Corporation is that is what had happened. He did not see anything from the Building Inspector prior to 1986.
Mrs. Rouleau-Côté commented that she did have a plan for Haron Corporation dated 1983. At this time, Mrs. Rouleau-Côté approached the Board members with the plan for Haron Corporation dated May 2, 1983 (a copy of which is in the file) and Attorney Lazos also reviewed the plan. Mrs. Rouleau-Côté pointed out the location of the garage, parking and office building on Tax Map 1, Lot 36-24 (currently owned by Dusty’s Transport) and the location of the original edge of beaver pond before draining and the dry area to be filled. Attorney Lazos stated that his point is that their information is accurate and consistent with the position they have been taken. Mrs. Rouleau-Côté also had a site plan for the Auburn District Court date March 27, 1991 prepared for David N. Nye and pointed out on the plan that, if they were maintaining down to the wetland, they were crossing the property line; they were mowing on areas that were not under their control. Attorney Lazos stated that, that was not the issue, the issue was, were those areas mowed down to the water line and the answer is yes because there is a brook flowing through there. Mrs. Rouleau-Côté did not believe that the property was ever maintained down to the wetland because there was vegetation established between the areas where they were mowed and the wetland area. Attorney Lazos stated that his client’s son who was responsible for the property at the time indicated that it was mowed down to the water line. Attorney Lazos also commented that the brook has gotten larger over time and the area has actually gotten closer to the improvements. Attorney Lazos noted that you can see from the 1984 plan there were improvements on the site before the wetlands ordinance was adopted and would like the plan be added to the group because that was the most important plan for their purposes because it shows that improvements were there and their position is that from that time forward until this day, this area was cleared. Attorney Lazos informed the Board that he was by the property today to take a look at the property and the snow gives you a relatively good idea of what types of vegetation is growing. Attorney Lazos commented about the alder by the side of the road and passed out some photographs of the current growth (a copy of which is in the file). Attorney Lazos further commented that the alder bush was an invasive species and that it was over 8 feet tall and over 5 feet across. Alder can spread very quickly and can grow 20 feet tall in a year and had been removed in the past. Attorney Lazos showed a picture that was taken by the Building Inspector on August 3, 2010 and pointed out that the trees near the highway shown in the photograph were still there and pointed out the little alder bushes under the trees which were short and small compared to the much larger older one that he showed previously and noted that this was consistent with their position that they consistently maintained and removed those areas of growth over the years and have maintained the open space that Haron Corporation maintained that the District Court required to be maintained and that his client maintained. For clarification, Attorney Lazos stated that he had asked his client to go through her records to confirm how often she had this area mowed and noted that the District Court required that the area be maintained. Mr. DiPietro asked Attorney Lazos if he had anything more than circumstantial evidence and did he have anything in writing. Attorney Lazos stated that he could give copies of Ms. Peterson’s sheets where his client’s son was responsible for maintaining the property. Attorney Lazos noted that they could dig up some old leases. Attorney Lazos stated that if you go to the property you can clearly see that the trees and shrubs, the birches and the maples have never had any significant growth there. Attorney Lazos explained that all his client did was remove some alder growth and some vines and other invasive species. Both sides of the brook have been maintained as open space for as long as his client has owned the property and previously and that was their testimony and position. Also at the last meeting they discussed that there was a significant number of invasive species along the water area in which the wetlands ordinance treats as exempt for allowed activity for removal. Attorney Lazos went through the species that have been found around the wetland area which were speckled alder, Virginia creeper, honeysuckle, dogbane, burdock, purple loosestrife and sumac in which his client has removed. There was also some native viburnum. His client has maintained the property the way she found it from 1996 to the present. She has met with the UNH Cooperative Service consistently to ask advice on how to maintain these properties and they encourage her to remove the alder and keep the alder under control in order allow the native viburnum to grow. The property has significant wildlife with ducks and geese that make their home. The property will be seen as an attractive property. It’s clear to him that if you apply the laws of this state which talks about what is necessary to maintain grandfathered uses and non-conforming uses there is no doubt based on the evidence that they presented that the clearing and the maintenance of this property down to the water line has been grandfathered, has been maintained consistently and has not been substantially altered from the time it began to the present by his client. His client has been doing this, the Courthouse was doing this, Haron Corporation has been doing this since 1984. Whether Haron Corporation went in and created an open space, that’s what Haron Corporation did and his client has inherited it and nobody raised an issue until recently. This is their presentation for the rehearing. He has reviewed the court cases and the cases are consistent. Attorney Lazos wanted to make one more point that, the order from the Building Inspector is also defective because there is no way to basically respond or perform what the Building Inspector is demanding here because there is no indication of what area is protected. There is no discussion of whether it is 20 feet, 10 feet, 15 feet or 5 feet because frankly the whole building, the parking lots, the fences, the enclosed driveways, the driveways are all within the 125 foot buffer. The point is, is that these uses have been going on within this buffer for 26 years, 27 years, 28 years and the problem is, is that there is a 125 foot buffer. You can’t tell us that we cannot remove bushes and trees that start growing in the parking lot. The position that the Building Inspector is taking on this is, if this was actually built in 1986 which apparently it was not but it was built in 1986 they would have to allow their building, their parking lot and driveways to be overcome by whatever grows there and that’s absurd. It’s ridiculous. They need relief and his client has not removed or done any significant damage to this property. His client has cut what has always been cut. She has not dug, she has not dredged, she hasn’t filled so they are asking for relief because he believes that the interpretation that the town is taking through the Building Inspector is just erroneous and wrong. Attorney Lazos thanked the Board. Attorney Lazos wanted to make a copy of his client’s written notes and informed the Board members that he would forward a copy to the secretary because it was his only copy.
Mr. Lagana had a couple of questions for Attorney Lazos. Mr. Lagana was having trouble squaring things in his mind and said that, Attorney Lazos started his presentation by saying that all previous plans and proposals were no longer valid and called them irrelevant. However, throughout Attorney Lazos’ argument he referred to things that have been going on there since the beginning. Mr. Lagana asked Attorney Lazos how he wanted it. For example, when Grenier was on the property and when Dusty’s was on the property relief was sought to 20 feet within the wetland and now vegetation has been cleared to the shoreline and that your argument is that it should be permitted, so which is it. Attorney Lazos answered by saying that, his client is not claiming that she can go to the water line and clear that area. If she were to go back before the Planning Board and say that she wanted to build a building on this property or a new building or to substantially add to the buildings that are there, she would have to comply with whatever new ordinance was in place to make those alterations. That is exactly what happened in 1996. They came into the Planning Board and said they would like to add this garden center and these buildings and add the building on the other side of the brook. At that point, it’s a new ball game because you are modifying what is there and therefore they obviously worked with the planning people and worked with the ZBA and came up with an agreement that they would not alter anything within 20 feet and they negotiated with the town because they were coming in with something new. If they were coming in with something substantially different, there is no reason to believe that same thing wouldn’t occur they would come under the jurisdiction of the wetland’s buffer ordinance. So that is the way he is dealing with 1996 because nothing ever happened. So the agreement that they would not touch anything within 20 feet of the wetland is not relevant here. The quid pro quo, the return for agreeing to do that was a new site plan approval which was never built. At this time, Attorney Lazos reiterated the history of the property beginning with Haron Corporation. Attorney Lazos commented that the way the ordinance works is that any condition that existed before the ordinance is passed may be continued. Their position is that, since they have not altered what was there after the Haron Corporation project was built in 1984 they are entitled to continue that use until they do something different. His position is consistent with what the law is. Mr. Lagana noted that he was not here to argue that position but was just trying to square things in his mind. Mr. Lagana commented that, Haron Corporation was not maintaining or destroying vegetation but was reclaiming a sand pit on the Grenier property. If Dusty’s Transport or its assigns was mowing down to the wetlands, they were actually beyond their property line on the Grenier property and not on the northerly side of that. Now vegetation has been cleared both on the southerly side of the pond as well as the northerly side. Clearly, this clearing of vegetation has been exacerbated. Attorney Lazos stated that they did not believe that was the case. Mr. Lagana asked for clarification where his client had met with the Code Enforcement Officer and had met with the Planning Board and had met with several agents of the Conservation Commission and was asked or at least counseled to do otherwise and the activity continued. Attorney Lazos asked Mr. Lagana what he meant by counseled. Mr. Lagana answered by saying, it was suggested that other activities occurred to come back to the Planning Board to seek other kinds of relief before continuing with the clearing. Attorney Lazos stated that, that question assumes that there was something that she had to do in order to continue what she has always been continuing to do. Attorney Lazos reiterated that this was a grandfathered use and that she is entitled to continuing do that, she does not need a permit, she doesn’t need an application, and she doesn’t have to deal with the Planning Board. Her position is that the Building Inspector’s interpretation of the facts in this case and the application of those facts to the ordinance are wrong. She felt that she has been doing this for 15 years, 16 years before and to have the Building Inspector arrive and start telling her not to do things that has been done on this property for 28 prior years was not a proper use of police power and the authority of the Building Inspector. That’s the position she is taking and she’s not being obstinate and she’s not being difficult, she is a property owner asserting her rights. Anyone in this town who has owned a property that is near a wetland before the ordinance was adopted has those same rights. If someone has a home near the lake and their garage is within the 125 foot buffer and they were mowing their lawns and they were clearing it in keeping the view of the lake and it was before 1986, guess what, the Building Inspector cannot go in and say to them, you can’t do this anymore, could she. That’s the example and the answer is no. So if the Building Inspector goes to that landowner and says that they have to cease and desist and you have to let all this stuff grow so your views are destroyed, what is that landowner’s recourse? Is that landowner supposed to go to the Planning Board and ask for a Conditional Use Permit? Of course not, that landowner is entitled to do what that landowner has always done. Now if the landowner decides to build a guest house within that 125 foot buffer, guess what, that landowner has to come in to the Planning Board to get the waivers. That’s a simpler example. Mr. Lagana stated that, if your applicant was mowed around the Courthouse and down to the shoreline on the southerly portion of the pond, it’s your position that because that may or may not be grandfathered. Attorney Lazos stated that their position is that it is grandfathered. Mr. Lagana said, okay, it’s your position that it is grandfathered and that means that the clearing of the vegetation can continue around the entire pond although it never was before. Attorney Lazos answered by saying, you don’t know that. Attorney Lazos stated that he knows that on the south side of the pond clearly the activity has been going on since 1984. On the north side of the pond, he asked his client, what the condition of that property was when you bought it in 1996. She said it was open except for the trees and has been mowed and treated as a hay field all that time and prior to that time. There is nothing on the record that indicates otherwise. Attorney Lazos commented on the aerial photos that he has seen for the first time but that is was clear to him that there are trees there and there is a canopy but you can’t tell what was under the canopy. His client told him that when she bought it in 1996 that it was open just like it is today. That’s the example that he wants the Board to think about and to forget that its Dusty’s Transport and forget that it has this real difficult history and think of it as a simple homeowner and how would the town treat a simple homeowner under this ordinance. That’s the best way to view it.
Mr. Lagana asked if there were any questions from the applicant from Board members. Mr. Benson asked, that Attorney Lazos talked several times about the weekly mowing and are you saying that weekly it was mowed down to the shoreline. Attorney Lazos said yes. Mr. Benson said that was a change from the first hearing. Attorney Lazos stated that his client asked her son to clarify because her son was responsible for this property back then and she has had some discussions with her son and he has confirmed that, that was what the court required. They did not want any vegetation because the court employees were afraid of snakes and other things coming up. Mr. Benson asked, north, south, east and west. Attorney Lazos said they had a picnic table there. Mr. Benson asked again, north, south, east and west around the whole pond. Attorney Lazos said no, they did not own the property across the way, they are talking about the south side of the brook that clearly it had been mowed down to the water line. On the north side, his client found that when she bought it in 1996 that it was in the same condition and asked his client to confirm which she did. Mr. Benson asked if they had anything indicating that this was being done. Attorney Lazos said no, that his client was doing the mowing and did not have a third party contractor doing it, that it was only in the last few months of the occupancy of the District Court that they had an outside party, the state had actually started doing it. His client has physically done the mowing from 1996 to the present. That’s their testimony, that’s their evidence. Do they have it in writing, no, but if he has to, he will have his client’s son sign an affidavit to that fact. There is no other evidence to the contrary before you. Mr. Benson noted that Mr. Lagana had touched upon that when Haron Corporation subdivided and sold to Grenier, do we have any kind of evidence that Grenier maintained. Attorney Lazos stated that the only evidence he had was what his client has told him what was there. That it was open to the water and there were no shrubs but there were trees there. They do not have any evidence to the contrary either.
At this time, the Board reviewed the pictures from the Building Inspector which was presented at the first hearing. Attorney Lazos commented that, the only thing about using pictures is that grass grows fast, alder grows fast and these types of shrubs grow quickly and that his client is clearing these out on an annual basis as she can so her evidence is that she was clearing both sides so depending on what time of year you go out there and if you go out there in August, alder has had a chance to grow for the whole growing season so you will have a series of little shrubs and the grass is growing. This does not mean that his client hasn’t been consistently cutting back as you can see from the pictures that he has taken of the little stumps of those areas, you can see that they have not grown dramatically. In the picture, the alder shown is only a foot across which indicates that his client has been keeping them under control. That’s the point, it doesn’t mean there is nothing there, it only means that his client keeps them under control and wants to continue to do.
Mr. Lagana asked Mr. Stuart if he had any questions. Mr. Stuart asked Attorney Lazos, is it your clients position that she has only been removing invasive species. There has been some discussion of invasive species being removed and meeting with the Cooperative Extension, is it your client’s position that she is only removing invasive species or are you removing more than invasive species. Ms. Peterson answered by saying that they have pruned some of the other shrubs, there is a shrub that they pruned called button brush and that was at the suggestion of the University of New Hampshire people and that was to bring it from going in 90 million directions and to make it a more rounded shrub which has a cute little blossom on it. That she will consistently keep under control and allow it to grow which is a native New Hampshire plant. There are a lot of things down there that I have pruned so that they are not just growing helter skelter and to make them more of an attractive shrub and to make them a better part of the landscaping. This was all done at the suggestion of the University of New Hampshire people. Ms. Peterson further stated that she has brought pieces of everything that grows down there so that she knows what was there and could keep what was state plants and what was productive and what would make a nice aesthetically pleasing to the eye shrub for any passerby. Attorney Lazos said, to answer Mr. Stuart’s question, yes they are removing the invasive species. Mr. Stuart said, his question was, is it your position that you are only removing invasive species. Attorney Lazos said no. They are not removing the buttonwood for example but only pruning it back. They are trying to keep non-invasive species in check and are removing the invasive species. Mr. Stuart just wanted it clarified because he understood it from the testimony that they were only removing invasive species and keeping non-invasive species under control correct. Ms. Peterson said yes. Mr. Stuart asked is that your legal position that that is somehow exempted because you are only removing invasive species and you are not removing anything other than invasive species. Attorney Lazos said that is one of their position. They are only removing invasive species and trying to maintain native species that are desirable per his client’s discussions with the New Hampshire Coop. Mr. Stuart asked if at the prior hearing that the discussion of invasive species occurred. Attorney Lazos said yes. Mr. Stuart asked so the pictures that they are seeing is that his client has been removing these invasive species on both lots, the courthouse and the Grenier lot since the beginning. Attorney Lazos noted that his client has only been removing invasive species on the Grenier lot since she’s owned it in 1996. Her testimony to him and he will make that representation to the Board was that, when she acquired it, it was also open so it was maintained and open down to the water prior to her ownership. Mr. Stuart asked when his client met with the Cooperative Extension. Ms. Peterson said, that she started in 2007 but mostly last year she had met with them at least five times last year because each time she would find something new that she did not know what it was and would cut a piece off and bring it to them and ask them what it was and what purpose it served, how does she keep it and how does she maintain it. They were very helpful and gave her good information and told her where to find information. It’s been an education and has been very happy with what she is accomplishing because it looks nice down there and is trying to make it aesthetically pleasing to the eye and to the abutters. Most of her abutters have no problem and thinks it looks fantastic. Mr. Stuart asked Ms. Peterson so the first time she had met with the UNH Coop was in 2010. Ms. Peterson said they have always cut to the water’s edge; they really went in to the invasive species because the sumac and the burdock were taking over and of course the poison ivy. Attorney Lazos asked Ms. Peterson when she first met with the UNH Coop. Ms. Peterson said 2010. Mr. Stuart asked Ms. Peterson, your son was mowing the Grenier field prior to you owning it. Ms. Peterson said they owned it together and he left the company 10, 12 years ago. Mr. Stuart asked, prior to you two owning it together, he had a contract with the court. Ms. Peterson stated that they owned it together from 1995 to 1999 but he was down there and she was not. Mr. Stuart asked, prior to 1995 did your son have a contract to mow it. Attorney Lazos said no. Mr. Stuart asked, so prior to 1995 who was mowing the Grenier field. Ms. Peterson said, probably Grenier because they owned it. Mr. Stuart said to Ms. Peterson, so you don’t have any knowledge of what happened prior to 1995 to the Grenier field. Ms. Peterson answered by saying, I’m assuming that they did, actually they said they maintained it. Mr. Stuart asked Ms. Peterson when she talked to them. Ms. Peterson said when she bought the property and haven’t talked to them since. Mr. Stuart said, so the Greniers’ were maintaining it prior to 1995 but your son was not maintaining the Grenier property prior to 1995. Attorney Lazos asked Ms. Peterson if it was open when she purchased it. Ms. Peterson said yes. Attorney Lazos asked Ms. Peterson if it had underbrush and were the Greniers maintaining it. Ms. Peterson said it was clear. Mr. Stuart said your testimony is that it was clear but were there trees there. Ms. Peterson said yes and the trees are still standing. Ms. Peterson said there are maple trees, elm trees, pines, red maple and red sugar maples. Ms. Peterson said it was open from scrub brush. Attorney Lazos reiterated that there was no underbrush. Mr. Stuart asked how big the trees were when you purchased the property. Ms. Peterson showed the Board members the size of the trees with her hands. Mr. Stuart said, just for the record Ms. Peterson went from 4 or 5 inches. Ms. Peterson stated that they are probably a foot across now, maybe more.
Mr. Lagana asked the rest of the Board if they had any questions for the applicant. No further questions were noted. Mr. Lagana stated that they have heard from the Code Enforcement Officer and the applicant and will take any questions or concerns from abutters. No abutters were present. Mr. Lagana asked if there were any questions from interested parties. Chuck Joy, Chairman of the Conservation Commission wanted to make a couple of comments and said that, poison sumac and poison ivy are not invasive species they are nuisance species but not invasive species and do not apply to that ordinance. Mr. Joy said to maintain a piece of property you have to maintain a piece of property which goes back to the Shore land Protection Act that we have in New Hampshire as well. If you maintain that property consistently, it’s maintained but if you stop maintaining you can’t reclaim it without going through a process. Mr. Lagana asked about the Shore land Protection Act. Mr. Joy said to mow up to rivers and streams and if you stop doing that you have to go through a bunch of hoops to reclaim that portion of it. Mr. Joy noted that there was discussion of the wetland buffer and the width of the buffer and how far the buffer can be, as the Conservation Commission, the Planning Board and the Zoning Board, we offer all kinds of relief to different buffers and sizes but it’s really the functionality of the buffer. You can have a very functional 20 foot buffer and you can have a very dysfunctional 125 foot buffer but at this point there is no buffer because it was mowed right down to the water’s edge. So with no shrubbery and no grass, the water goes right down into the wetlands. So any runoff from the parking lot isn’t mitigated by the shrubbery or the scrub brush it goes right into the water. Mr. Joy talked about the nature of the wetlands as they expand and contract over time as beavers come and beavers go. You can legally pull down beaver dams and that’s part of the process of time, its nature and you have to work around that which is basically the ordinance of the town is all about. Mr. Joy commented that, just because he has a house that is 30 years old doesn’t mean that he can go do anything in his backyard that was done 30 years ago if I did not maintain that backyard the same way it was. It was a farm field and now it has trees, I can’t go lumber it because it was a farm field 30 years ago unless I maintained it. Mr. Joy further commented on the testimony stated above that when she owned the courthouse and if she mowed right down to the water’s edge, which was the Grenier piece, she had no right to proceed the ordinance or the laws of the town. As Carrie said earlier, just because you got away with something one time doesn’t mean you have a right to do it over and over again. Attorney Lazos wanted to comment.
Mr. Villeneuve commented that he was one of three people in the room tonight that had been on that property in 1984 when they were building the ball fields when Haron donated a piece of this section back and he did scar the earth as you might say and can remember the Grenier parcel in 1984 being blank. He could also remember when it grew in and does not ever recall the parcel looking the way it does now and thinks that the aerial photo of 1992 which shows exactly what that parcel looked like. There is tremendous understory brush growth coming up through there prior to the way it looks now. You can see the dirt driveway off to the side and does not have the fenced in area that came in later. He can say with surety that the area to the north was never maintained to the way it is now. Attorney Lazos wanted to comment. Mr. Lagana said to Attorney Lazos that, he certainly could comment but wanted to see if there were any other interested parties that wished to speak. There were no other comments at this time.
Attorney Lazos pointed out that the aerial photographs are really troublesome, you can hardly tell what property it is, you can see the brook, you can see the buildings but the idea that you can see understory. To say that you can look at that photograph and see anything under those trees is wishful thinking. They have already indicated that there were trees growing on both sides of that property which have not been modified or removed but have been left alone. Other than fuzzy stuff on those photographs you cannot see anything other than the tops of the trees that are there. His client has owned those properties since 1996 and she has testified as to what was there and how she has maintained it as she is the landowner. They have stated that the trees have grown up and they have not touched the trees but that the property has been open. All the pictures are a snapshot at a specific period of time and their position is that they have consistently done something for a long period of time.
Attorney Lazos commented that it goes back to the first gentleman’s comment about the Shoreland Protection Act. Their position is that this property has consistently been maintained in the way that they described since 1984 and the Shoreland Protection Act has no effect on this property at all. They have not had any calls from the state questioning their activities or whatever they have been doing on this property. There has been no enforcement action, no notice or dispute or discussion. The Shoreland Protection Act is there and if someone were to start developing the property now, it may or may not come into effect. The issue tonight is whether the use is grandfathered and whether his client has consistently used it in this manner since 1984. That is the issue before this Board; the Shoreland Protection Act is irrelevant. Mr. Villeneuve wanted to clarify his statement for the Board and said, what you are looking at in the aerial photograph actually isn’t the understory, there aren’t any trees and what you are looking at is just the vegetation. There were no trees left in the gravel pit except the shrubbery that was three feet off the ground and was not maintained to the waterline. Mr. Joy agreed that the Shoreland Protection Act did not apply to this but was using it as an example that, if you stop maintaining something then you lose the right to that. Mrs. Rouleau-Côté informed the Board members that, in the functional analysis that they had for the Grenier property would give them a description of what the property was like at that time and identifies the types of trees and shrubs. It kind of gives you a description of what the property was like at the time of the proposal. At this time, the Board reviewed the functional analysis.
Attorney St. Hilaire and Attorney Lazos went over the site plans to be included in the record. The site plans include the following:
1) Site Plan of an Office Building and General Contractors Garage owned by Haron Corporation dated May 2, 1983 2) Auburn District Court Watershed Plan dated March 1991 3) Site Plan of the Auburn District Court prepared for David N. Nye dated March 27, 1991 and recorded on April 18, 1991 (D-20951) 4) Site Plan of Land for Grenier Auto Body and Pyramid Drilling Supply Company dated February 17, 1995 and recorded on February 24, 1995 (D-23757) 5) Site Plan of Map 1 Lot 36-24 & 16-17 prepared for Dusty’s Transport, Inc. dated June 25, 1996 and recorded on August 16, 1996 (D-24832) (Sheets 1 & 2) 6) Site Plan of Map 1 Lot 36-24 & 16-17 prepared for Dusty’s Transport, Inc. dated June 26, 1996 and recorded on September 13, 1996 (D-24898) (Sheet 2 of 2)
Mrs. Robidoux asked, in 1996 after Dusty’s went to the Planning Board for approval was it at that time that you started parking trucks and things on that portion of the lot or did you not ever park trucks there. Ms. Peterson stated that she has always parked trucks within the fenced in area. They expanded the fenced in area approximately 10 feet when the town gave them some land. The fenced in lot was always there because Haron used to park his equipment there. The fenced in area was already there when she purchased the property and only increased the fenced in area about 10 feet. Mrs. Robidoux wanted to know if it was included on the recorded plan. At this time, Attorney Lazos, Attorney St. Hilaire and the Board members reviewed the site plan and noted that it did not show the expansion of the fenced in area. Mrs. Robidoux asked Ms. Peterson that when she added the additional fenced in area was it for parking. Ms. Peterson said yes.
Mr. Lagana asked if there were any further questions from the Board. None were noted.
Mrs. Robidoux made a motion to enter into deliberations. Mrs. Neveu seconded the motion.
Mrs. Robidoux noted that the functional analysis showed back in 1994 that it was ponded water bordered by a narrow stretch of emergent wetland vegetation growing out. Assuming that it had to be 20 feet wide because in the analysis it says before construction they needed to cordon off the 20 foot buffer and leave that existing vegetation intact. Mrs. Robidoux noted that in her mind, based on an analysis that was done by RSL that there was some sort of vegetation along that water. Mrs. Robdioux stated that she has listened to the history and understanding it but was troubled because in the time that she has lived in the town which was from 2005 she has never remembered the property being cleared down to the water’s edge. Now all of a sudden in 2010, it’s cleared all the way down to the water’s edge. She was unsure if it was the topic of discussion with the UNH Coop in its more extension clearing of invasive species. We have buffers for a reason. Mrs. Robidoux said that she was also troubled that if the Building Inspector came to her property and told her “that right there don’t do that” and that a conversation took place and essentially ignored. Discussions took place at the Planning Board, we know what the regulations are and there are many reliefs available. A Conditional Use Permit is one meeting with the Planning Board. Mrs. Robidoux was very troubled by that. Mrs. Neveu agreed with Mrs. Robidoux.
Mr. DiPietro stated that, the question before them is does the landowner have a right to cut brush and grass in this area and on her land and is it grandfathered. It’s pretty obvious that the land was a gravel pit and it says in the functional analysis that says that it was 100% covered with Sweet Fern which grows in about a year after you stop moving the gravel around. Some low grass and some red maple was pretty much what was in that area back when they scraped it off. They also talked about some beaver activity; I know that there has been some beaver activity in that area for a long time. Beavers like to chew on alders, make dams and flood property. Mr. DiPietro noted that he is very familiar with the Shoreland Protection Act and if he were to explain it, it pretty much sets out best practices to deal with protecting the shoreline. The spirit and intent of our ordinance is to protect the wetlands and looks like the applicant has used best practices and has not disturbed the soils and it looks like that area can absorb runoff. The grass wasn’t removed it was just cut and the best thing to do to encourage grass growth is to cut the grass. The question is when and how often this person cut and basically the pictures that he has seen is shrubs and grass and brush. She says she has been doing it continuously and he sees some evidence that there is some canopy. In 2005, 2007 & 2008 there is a little brush and some canopy. In 2008 it looks nicely cut but could not tell a whole lot. Does the applicant have a right to do this and is the applicant grandfathered. Mr. DiPietro said he thinks the applicant is grandfathered but does not know if she doesn’t cut for one year and doesn’t know if she cuts 10 feet from the water if she loses it but to him it looks like there has been continuous brush control. She did testify at the last hearing that she did more cutting in the past year and could see that. Personally, Mr. DiPietro thought it looked nice. There has been no development. Certainly on the original lot, Mr. DiPietro believed she was grandfathered.
Mrs. Robidoux wanted to add to the conversation about grandfathering and agreed that if you have a plan and there is no completion on the plan you lose your vesting for the ordinance which is pretty clear in our law. The site plan was presented to the Planning Board in 1996 when Dusty’s Transportation owned the property. It included the parking for Dusty’s Transportation which would be a new use from the Nye business that was there previously. They expanded the parking area for their trucks and believes in that case, any regulations in effect at that time in 1996 take effect. If there was an existing vegetative buffer of some sort at the water’s edge that’s what had to stay there because there was a 125 foot buffer. Mrs. Robidoux stated that she was sure that the Planning Board would have been cognizant of the fact that the 125 foot buffer would have put it smack in the middle of the parking lot. The town has always been understanding to its applicants within reason and so in this case the 125 foot buffer right down to the water’s edge there is no grandfathering for that. Further, she thinks that this property is subject to the wetland’s ordinance and since this plan came in in 1996 there wasn’t any non-conformity or vesting to do all the other stuff. Mr. Lagana understood what Mrs. Robidoux was saying. Mrs. Robidoux believed Mrs. Rouleau-Côté was correct in issuing a Cease and Desist.
Mr. Lagana asked Mr. Benson or Mr. Stuart to comment. Mr. Benson began by saying that it goes back to the wetland function analysis and talks a lot about the grandfathering because it was after Haron owned it and assuming at the time Grenier owned the wetland function analysis was used again two years later when they put forward the plans in 1996. The state was the same in 1996 as it was in 1994. It clearly talks about the main issue here isn’t how deep of a buffer but was there a buffer. Mr. Benson pointed out that the wetland analysis indicates that the wetland bordered by a narrow stretch of emergent wetland vegetation and grasses. The wetland analysis was prepared in 1994 and used again in 1996 that there was at a minimum a narrow stretch of emergent wetland vegetation. Mr. DiPietro commented that, in his eyes it was still there from what he saw driving by today. Mr. Benson asked if the cattails were still there and wool grasses. From the pictures he sees a lot less and no longer sees those things there. We look at this back when the Building Inspector requested that all cutting be stopped so it could be looked at; there are options in our zoning regulations to look at to get some mediation for clearing as outlined in the zoning. It was the owner of the property who decided to go and guess cut and kind of destroy all of the evidence to see what was there at that time. Had they had followed through the steps available and brought it to the Zoning Board for a Variance, I think we would have much more information on at the time but now that it’s all gone there seems that there was some level there and the other point, which we talked about that there has been some expanded cutting during the years. Not only the side of the courthouse but on the other side as well.
Mr. Stuart noted that he has heard testimony from a couple of witnesses saying that there was expanded cutting beyond what had previously been done relatively recently as 2010 and there is some photographic evidence from the fall of 2010 that to him looks relatively extensive as far as what the cutting is and not sure what party provided the photos but to him it looks relatively extensive. Did not hear testimony that he thought there may be an agreement among the applicant but there has been some extensive or more cutting. Mr. Stuart affirmed that he has heard from the Building Inspector that there was bigger canopy cut so it would seem to him that the evidence seems to support that there was some greater cutting than there had been in the past. Mr. Stuart touched upon the wetland function analysis where it indicates the narrow stretch of emergent wetland vegetation dominated by Juncus, wool grass, cattails, red maple saplings, speckled alder and steeplebush down to the water’s edge which does not appear to be in fall 2010 picture. There seems to be some discrepancy in the evidence and concluded by saying, that is how he sees the evidence.
Mr. Lagana explained to the Board that they have heard an awful lot of testimony over the last couple of hearings with very powerful arguments from both sides of the equation. Mr. Lagana did believe that the functional analysis introduced tonight represents very powerful evidence which contradicts the applicant’s position that clearing was done always on this property. It is quite obvious that there was a vegetative buffer and the soil scientist talks about maintaining a 20 foot buffer between the cleared area and the shore line. Secondly, Mr. Lagana noted that he has lived in the town since 1986 and is quite familiar with the property and does not ever recall there ever being that amount of clearing down to the shore line. Thirdly, if your property is visited by the Code Enforcement Officer and you are asked to stop, for your own protection, you should stop and whether or not you feel that the rules apply to you, he did not think it mattered. Mr. DiPietro stated that he disagreed with Mr. Lagana’s comment. Mrs. Robidoux affirmed that it speaks of Mrs. Rouleau-Côté’s authority and the question was raised “does she have the authority to issue a Cease and Desist” and believes it speaks to that. Mr. Lagana said the reason he brings it up is because even if the Code Enforcement Officer is incorrect, then they have this forum to pass through that decision but to continue with the activity and come seek relief after the fact, I think is improper procedure. Mr. DiPietro noted that the question before them is that the applicant obviously feels she had a right to do something. Mr. Lagana said, and she may but if the Code Enforcement Officer issues you a Cease and Desist order, you don’t continue with the activity.
Mr. Lagana asked if there were anything else to add. Mr. Lagana said that he would entertain a motion to come out of deliberations.
Mrs. Robidoux made a motion to come out of deliberations. Mrs. Neveu seconded the motion.
Mr. Lagana explained that they have come out of deliberations and if anyone had any questions or comments from what they heard during deliberations to speak up please. Attorney Lazos commented on the discussion of what his client did after being told to stop and said that his client had gone to the Planning Board and his client did retain counsel, Mr. Tamzarian. Attorney Lazos stated that they had sent a number of letters to the Building Inspector asking for clarification and confirmation and asked for town counsel to response to the position and did not get a response until April so from August 2010 until April 2011 they had not heard anything. Attorney Lazos stated that they never got a response from town counsel and so they took the position that the ordinance did not apply to them and they were exempted from the ordinance and that they were grandfathered. Attorney Lazos believed it was unfair to say that his client ignored the Building Inspector. They were informed that someone called the Building Inspector to complain and that they will find out who complained if they have to appeal this. Mrs. Rouleau-Côté commented that Ms. Peterson never responded to her notices that were issued and that the first time she heard from Attorney Tamzarian was June 16, 2011 at which time Attorney Tamzarian asked if the Auburn Planning Board ever received legal interpretation as noted in the August 4, 2010 minutes. Mrs. Rouleau-Côté explained that at the time Ms. Peterson went before the Planning Board that it was not a Planning Board function.
Mr. Lagana thanked the applicant. Mrs. Robidoux had a procedural question and asked, if a Cease and Desist Notice of Violation is issued, appeal would be to the Zoning Board of Adjustment and not the Planning Board. Attorney St. Hilaire acknowledged that that was correct.
Mr. Lagana explained a vote to grant would be to grant the applicant’s appeal and a vote to Deny would be to uphold the Building Inspector’s decision.
Mr. DiPietro made a motion to vote on the Appeal as presented for Dusty’s Transport, Inc., Tax Map 1, Lot 36-24, seconded by Mrs. Robidoux. Mrs. Robidoux voted to deny for the reasons stated during deliberations, Mrs. Neveu voted to deny, Mr. DiPietro voted to grant, Mr. Benson voted to deny and Mr. Lagana also voted to deny. The Motion was DENIED by a vote of 4 to 1.
Case #12-02 Michael and Leslie McAllister 138 Pingree Hill Road – Map 5, Lot 27-2 Zoned Residential One
Applicant is requesting a variance to permit placement of a 12’ x 16’ shed within the side setback in a Residential One zone. (Article 4.06, Section 6).
Mr. McAllister began by saying that he was new in town and that he liked Auburn. Mr. McAllister said that he had spoken with his contractor and that the contractor said that he wouldn’t have a problem and did not need a permit. Mr. McAllister understood that he should have come before the Zoning Board first and it wasn’t until he received a letter from the Building Inspector informing him that he needed a permit and that since the shed was larger than 120 square feet that he would need to meet setbacks. Mr. McAllister stated that the setbacks in Manchester was 8 feet and thought it was the same in Auburn and pointed out that it was his mistake. Mr. McAllister informed the Board members that he has applied for the permit. Mr. McAllister stated that he has placed the shed on the right side of his property as there are areas on his property that have standing water at times and did not want the shed to sink into the ground and presented photos of his property to the Board members for review. Mr. McAllister also explained that he has some wetlands to one side of his property and wanted to be sure to stay away from them as well. Mr. McAllister has spoken with his neighbors and they have no problem with the location. Where it is located is out of the neighbors view and also did not want to detract from the neighborhood as there are nicely landscaped homes all around. Mr. McAllister also noted that he wanted to be sure to stay away from the septic and leach field areas. Mr. McAllister stated that he would be using the shed for residential purposes only to store a lawnmower, toys so they weren’t all over the yard. Mr. McAllister said that, the shed is also easily accessible in case of a fire.
Mr. Lagana elevated Mr. Stuart to a full voting member for this case.
At this time, Mr. McAllister read his application into the minutes. Mr. McAllister also commented that the shed was well built and that the neighbors approved. Mrs. Neveu asked if he had a plot plan. Mr. McAllister showed the location of the house and shed on the plot plan and a copy was incorporated into the file. Mr. McAllister stated that the shed was 12 feet from the property line and that his neighbor, Mr. Davis has a shed 30 feet away from his in the same area. Mr. McAllister pointed out to the Board members that he wanted to place the shed where it was aesthetically suited for the area. Mr. Lagana informed Mr. McAllister that the Board did not like as-builts after the fact and suggested to Mr. McAllister that going forward to seek the Building Inspector for any help.
Mr. Lagana asked the Board if they had any questions for the applicant. Mr. Stuart asked Mr. McAllister if the shed was outside of the standing water area. Mr. McAllister said yes. Mr. Lagana informed Mr. McAllister that if he ever wanted to move the shed to please come back to see them. Mr. McAllister said absolutely.
Mr. Lagana believed that the applicant has met the five conditions.
Mr. DiPietro made a motion to vote on the application as presented with the condition that the drawing As Built be incorporated to show that the shed should be no closer than 10 feet from the stone wall, seconded by Mrs. Neveu. Mr. Stuart, Mrs. Robidoux, Mrs. Neveu, Mr. DiPietro and Mr. Lagana also voted to grant. The Motion passed in the affirmative.
Minutes
Mr. DiPietro made a motion to accept the minutes of December 20, 2012 as written, seconded by Mrs. Robidoux. The motion passed in the affirmative.
General Business
Mr. Lagana wanted to discuss the matter of Leon Labrie and after reading the Planning Board minutes of January 18, 2012 recalled that Mr. Labrie had stated that the new building would be for drafting and storage and that there would not be any water or sewer going to the new building. The Board members all agreed that Mr. Labrie stated that there would be no water or sewer. That the building would be used for drafting and storage only. Mrs. Rouleau-Côté informed the Board members that he did mention at the last Planning Board meeting that there was a sink in the corner that his grandfather put in a long time ago when it was a chicken coop. Mr. Lagana asked if there was any kind of enforcement that could be done. Mrs. Rouleau-Côté said that there is none if Mr. Labrie continues to go through the Planning Board process. So until he stops meeting with the Planning Board there is nothing to be done enforcement wise.
Adjourn
Mrs. Robidoux made a motion to adjourn, seconded by Mrs. Neveu. All were in favor, the motion passed unanimously and the meeting stood adjourned at 10:09 p.m.
The next ZBA Hearing is scheduled for February 28, 2012 at 7:00pm and will be held at the Town Hall, 47 Chester Road.
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