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N.H. Supreme Court sides with town in its dispute with Meredith Zoning Board

MEREDITH — The New Hampshire Supreme Court has upheld the ruling of the Belknap County Superior Court setting aside the decision of the Zoning Board of Adjustment (ZBA) to grant a variance to allow a variety of commercial uses on the portion of the lot at 22 Foundry Avenue.

The litigation, which began in 2010 pitted the Board of Selectmen against the ZBA. The selectmen were troubled by so-called "zoning creep," by which uses permitted in one district are extended to another by annexing abutting property as well as by the prospect of a commercial operation in the Waukewan Watershed Overlay District.

The property at 22 Foundry Avenue, owned by Foundry Avenue Realty Trust, originally consisted of two lots that were merged in 2009. The first, a one-acre parcel fronting on Foundry Avenue in the business and industry district. The second, abutting the first to the north, is a four-acre wooded lot which lies entirely in the residential district. The only access to the residential portion of the property is through the business and industry district.
The owner sought the variance to construct a building on the land in the residential district to serve as a "warehousing, light manufacturing, building trades and/or equipment and truck repairs." The board, with one dissenting vote, granted the variance, finding that because of its proximity to commercial enterprises and lack of appropriate access, the land is not suited to residential development, despite its zoning.
The Selectboard asked the ZBA to reconsider and when it reaffirmed its decision appealed to Superior Court. Justice James D. O'Neill, III ruled that without knowing the precise use for the property, the ZBA could not determine whether the five criteria for the variance were met. He set aside the variance and remanded the case to the ZBA.
Foundry Avenue Realty Trust amended its request, limiting the proposed use to "building trade or repair shop." The ZBA again granted the variance. The selectmen again appealed and O'Neill reversed the ZBA's decision, again ruling that the proposed use was not sufficiently precise. "Given the endless possibilities of types of trade and items that can be repaired," he wrote, "it is arguably impossible for the ZBA to reasonably grant the variance absent more specificity."

Foundry Avenue Realty Trust and the ZBA then appealed to the Supreme Court.
At the Supreme Court Foundry Avenue Realty Trust, represented by attorney Ed Philpot of Laconia, argued that O'Neill erred by requiring that the proposed use be more specifically defined than the zoning ordinance requires. The justices noted that the five criteria that the ZBA must find are met to grant a variance are established by statute, not the local zoning ordinance. "Accordingly," they held, "the burden on the applicant to address the particular characteristics of the specific proposed use arises independent of, and is not a function of, the uses that are specifically enumerated in the town ordinance."
The justices explained that the responsibility of the ZBA to determine that the five criteria are satisfied cannot be delegated to the planning board. They cited a case in which the court ruled that the Alton ZBA erred by granting a special exception despite severe traffic issues, expecting the planning board as well as state and local officials to resolve the problem.

Last Updated on Tuesday, 17 December 2013 02:07

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Gilmanton man admits to reckless conduct on night he was firing cap & ball revolver

GILMANTON — A local man who police said pointed a loaded gun at a police officer has pleaded guilty to one misdemeanor count of reckless conduct in the 4th Circuit Count, Laconia Division Thursday.

Daniel Walker, 57, of Chestnut Avenue was facing two felony charges that he reckless placed a Gilmanton Police officer in immediate danger on November 24 and that he purposely placed the same officer in imminent danger.

Walker told The Daily Sun that he had been lighting off caps from a gun that he made from a hobby kit. He said it probably "sounded like a cannon."

He described it as an 1858 cap-and-ball Civil War era revolver.

Police were called to Walker's home on a Sunday at 1:28 a.m. after a neighbor called to report gunshots. While approaching Walker, a responding officer said in his sworn affidavit that he saw him take an aggressive stance and and bring his hands to his face like he was pointing a gun.

Walker, who said he is a former corrections officer, said he had no idea who was coming to his house because it was dark and the police SUV cruiser was very low profile.

Walker said Friday that he was not pointing a gun but was putting his hands up to his eyes to see who was approaching his house at 2 a.m. He said that the gun was never pointed at the officer and he thought that "he could brandish it" at whoever was coming up to his deck if he needed to.

On Friday, he said when he realized the approaching person was a police officer he put the gun in the house and "assumed the position."

"I came running out of my house with my hands up," he said.

When asked if the officer announced he was a police officer, Walker said he didn't hear it. He said the wind was loud.

After Walker was arrested he said he warned police that the gun was real and had one live round in it. Police agreed he was cooperative and apologetic.

When Walker was asked why he reached out to the media, he replied that he wants "people to know he's not the wild cowboy they think he is."


Last Updated on Tuesday, 17 December 2013 01:57

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Historic Demolition Review Ordinance proposed in Belmont

BELMONT — A group of citizens has petitioned a warrant article on to the March 2014 SB-2 ballot that would create and adopt a Historic Demolition Review Ordinance.

The ordinance, if passed, would create a review committee that would be comprised of at least three members of the Heritage Commission.

Any proposed demolition of a building that is older than 50 and is visible from an adjacent public land or is listed or is eligible to be listed in the National Register of Historic Places or the New Hampshire State Register of Historic Places would have to be reviewed by this committee but the committee would not have to legal power to stop it.

Twenty-six people signed the petition and the Office of the Town Clerk Tax Collector has verified them. The petition was filed with the town on Dec. 11.

Linda Frawley of the Heritage Commission said the idea of an ordinance has been in the minds of members of the commission for at least a year but it was only in autumn of this year when the commission approached the Planning Department and asked them to craft an ordinance that could go on the annual town meeting warrant.

She said the Heritage Commission hasn't weighed in on this specific petitioned warrant article but said three of the seven members signed the petition — including herself. The other two are Alice Jewell and Priscilla Annis.

She said the initial draft of the ordinance was generated by the Planning Department after a lengthy discussion with commission member Wallace Rhodes and it included buildings throughout the entire town.

"That was much greater than we wanted," Frawley said yesterday.

Frawley said she rewrote the proposed ordinance to restrict it to the Factory Village Historical District.

In her opinion, the ordinance would apply to all buildings, including those owned by the local government.

Town Planner Candace Daigle said the Factory Village Historical District exists but at this time it is not a regulatory district — meaning there are no specific planning or zoning ordinance that apply to it and it alone. She said it was designated as an official district two years ago as a TIF (Tax Increment Financing) District.

Daigle also said that town-owned property is not subjected to planning and zoning ordinances because Belmont voters have not officially voted to include all municipal property as subject to planning and zoning regulation.

"We do try to adhere, though, " Daigle said.

When Frawley was asked how this ordinance would specifically address the Gale School, she said she didn't know but allowed the school is in the Factory Village Historic District, which she said was designated in 2002 or 2003.

Frawley said that as of yesterday, the submitted version of the proposed ordinance has not been vetted by the town attorney.

Daigle said that while original Planning Department's draft was reviewed by counsel, the petitioned version was still undergoing a review.

Daigle said there would be only one public hearing on the petitioned article and the earliest it could be held is January 13, 2014.. She said that no changes can be made to a petitioned warrant article by any government agency or at the annual deliberative session.

She said the Planning Board will make a recommendation but only after the public hearing.

Last Updated on Tuesday, 17 December 2013 01:51

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Marina offers Belmont $240,000 for old WInnisquam Fire Station

BELMONT — Selectmen voted unanimously last night to accept a letter of interest from Winnisquam Marine to purchase the former Winnisquam Fire Station for $240,000.

The "expression of interest"from the marina is $5,000 more than the assessed value would be if the town didn't own it.

The old firehouse is directly across Sunset Drive from the marina.

Winnisquam Marine was the only entity to make an expression of interest. The actions of selectmen last night mean that the "expression" can legally be put on the town warrant at Annual Town meeting.

Selectmen haven't crafted the actual wording of the warrant article but last night unanimously, but informally, agreed they would like the money, should town voters accept the offer, to be put into the Building Maintenance Capital Reserve account.

Marina president Ed Crawford said in his written offer that the three garage bays would be used for servicing boats. He said that Winnisquam Marine works on boats year-round and the three additional bays would be perfect for his operation.

He described his business as environmentally sensitive and quiet. An added benefit, he said, would be to ease some of the parking problems created in the summer by his marina.

In October, selectmen voted to lease the station to the marina for storage. The marina has plowed and kept up the surrounding parking lot. Crawford said his company has always worked well with the Belmont Fire Department and had made various donations to what was once an all-volunteer department.

The building has not been used as a fire station, except for storage and for occasionally responding to the lake with the fire boat, for the seven years since the former Winnisquam Fire District disbanded. Repeated attempts by elected officials in the towns of Tilton and Sanbornton to put the station back into service have failed. About five years ago, the Department of Parks and Recreation took over one half of the building.

Earlier this year, a town study performed on all municipal buildings concluded that the building was in too much disrepair for use as a fire station. In November, the Belmont Department of Parks and Recreation relocated from their half of the building to the second floor of the Belmont Mill into a space once used as a classroom and vacated in 2012 by the Lakes Region Community College Culinary Program.

The meeting hall, said Crawford, would be used for administration, merchandise and parts which would free some space at the existing marina now used for sales and a showroom. The second floor would be used for records storage.

Crawford said he would power wash and paint the exterior and do some landscaping around the building. He provided selectmen with a contractors estimate for $71,000 from a local contractor to do some immediate repairs and expects to spend more on the building as his marina expands.

This is the second major marine purchase and third large property purchase made recently by Crawford. He also purchased the former Adams Marina in Tilton for $750,000 in 2012 and in 2004 he bought the former Sarge's County Store property, also in Tilton, for $400,000.

Selectmen noted last night that Crawford was the only entity who offered an expression of interest in the building when the town advertised it.

Last Updated on Tuesday, 17 December 2013 01:38

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