October 17, 2018 | Town Admin TOWN OF SUTTON Pillsbury Memorial Hall 93 Main Street Sutton Mills, NH 03221 ZONING BOARD of ADJUSTMENT Amended and Approved Minutes of the Regular Meeting Wednesday October 17, 2018 Board Members Present: Derek Lick, Chair; Ed Canane; Samantha Gordon; Doug Sweet; and Joe Eisenberg, Alternate Board Members Absent: Betsy Forsham Staff Present: Diane Lander, Land Use Coordinator Others Present: Sutton Residents Karen and Lee Booker and Marge Davidson; George Horrocks, President of Harmony Energy Works, Inc. Regular Meeting Call to Order and Roll Call Chairman Lick called the meeting to order at 7:01 p.m. Attendance was taken. Chairman Lick designated Alternate Board Member Eisenberg to sit for Board Member Forsham. Public Hearing: Case # Z-18-03 Lee and Karen Booker, applicants and owners, request a variance to a wet land setback under Article X, Section D.1 of the Sutton Zoning Ordinance to allow installation of a solar array. The property is located at 32 Main St., Sutton Mills, NH 03221 (Tax Map 06-380-154) in the Residential Zoning District. Chairman Lick opened the Public Hearing and summarized the process to be followed during the Public Hearing: Applicants’ Agent summarizes the project; Board members provide comments and ask questions of the Applicants’ Agent; Members of the Public direct comments and questions to the Chair of the Board; The Land Use Coordinator introduces written comments received; Applicants’ Agent provides responses and final comments; The Public Hearing is closed; Board Members deliberate and then vote, needing three votes in favor for each of the Variance Criteria for the Application to be approved; and There is a 30-day appeal period to reconsider the decision. Chairman Lick noted that, per Table D.1 on page 35 of the Sutton Zoning Ordinance, “Any Other Non-Agricultural Use” requires a 75-foot wetland buffer. George H. Horrocks, President of Harmony Energy Works, Inc., on behalf of the applicants, stated that there are changes in the markers from the last map submitted. He said the plan is to eliminate the Bookers’ electric bill and provided the following information about the solar array: A ground mount is needed due to the characteristics of the property and the structure of the land. The array is fixed position, but it can tilt to harvest sunshine, and consists of 2 x 6 panels that are 10 feet wide by 20 feet high. Two (2) single 8” diameter poles will be installed, each 5.5 feet to 6 feet below ground. A cement foundation with 1.5 feet of rock underneath will be used to make the foundation sturdier. The issue is the wetland boundary. Would like to be within 1 foot of the boundary. Chairman Lick asked if the proposed location is the only location that works. Mr. Horrocks said that it is and explained that other locations interfere with the septic or are too shady and that the property across the street is wetland. Board Member Gordon referred to the letter from Jeff Evans, Wetland Scientist, stating he supports a 1-foot setback provided no equipment is placed in the wetland. She asked what will be used to dig the required 3-foot hole. Mr. Horrocks replied that an auger will be used and on the upside so as not to interfere with the wetland. Board Member Canane commented that the array will hang into the wetland a minimum of 4 feet. He also asked about the location of the septic tank. Mrs. Booker replied that the septic tank was installed in 2006 and is properly located on the map submitted. Board Member Sweet noted that the array will dump snow and water into the wetland. Mr. Horrocks commented that both sides of the site will be mowed and so will look the same and would not seem is wetland. Board Member Gordon noted that the area next to the pole would be constantly wet as the panel will shade the wetland. Mr. Horrocks replied that the winter has long shadow but the summer has less shadow. Board Member Eisenberg asked if the system could be downsized. Mr. Horrocks replied that the solar array is a small one and the system is already downsized. Marge Davidson, long time neighbor, spoke in favor of the application and said the proposed location of the array was in line with how the sun travels in that area. The Land Use Coordinator reported (1) she has not received any communications about this application and (2) all fees to date have been paid. Chairman Lick closed the Public Hearing and the Board began discussion of the application. Variance Criterion (1): The variance will not be contrary to the public interest. The “public interest” in this case is protection of the wetlands. There is little impact on the wetlands. The wetlands themselves have been addressed and equipment should be out of the wetland. Motion: Board Member Gordon moved that the 1st variance criterion is met. Board Member Sweet seconded the motion. The motion carried unanimously in the affirmative. Variance Criterion (2): The spirit of the ordinance is observed. The applicant has made an effort to protect the wetland and Jeff Evans, a designated wetland expert, supports the 1-foot setback. Motion: Board Member Gordon moved that the 2nd variance criterion is met. Board Member Eisenberg seconded the motion. The motion carried unanimously in the affirmative. Variance Criterion (3): Substantial justice is done – with respect to the wetlands. Motion: Board Member Canane moved that the 3rd variance criterion is met. Board Member Sweet seconded the motion. The motion carried unanimously in the affirmative. Variance Criterion (4): The values of surrounding properties are not diminished. A long time neighbor spoke in favor of the application and the array will be somewhat sheltered by trees, the house, etc. Motion: Board Member Eisenberg moved that the 4th variance criterion is met. Board Member Canane seconded the motion. The motion carried unanimously in the affirmative. Variance Criterion (5): Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship. The question is if the solar array needs to be in the proposed location. This has been answered – other locations are not possible or are not as preferable. Motion: Chairman Lick moved that the 5th variance criterion is met. Board Member Gordon seconded the motion. The motion carried unanimously in the affirmative. Chairman Lick asked about imposing any conditions of approval. Of particular concern is equipment going into the wetland. Motion: Chairman Lick moved to approve the application with the following two (2) conditions: Installation of a temporary construction fence is required along the wetlands boundary in proximity to the construction site during the solar array installation. No construction equipment may encroach on the wetlands. He noted that the reason for these conditions is to further ensure protection of the wetland. Board Member Sweet seconded the motion. The motion carried unanimously in the affirmative. Chairman Lick then advised the applicant that the variance granted is immediately effective, but there is a 30-day window when someone can appeal this decision. New Business: No New Business came before the Board. Old Business: No Old Business came before the Board. Administrative Work Session to discuss ZBA meeting processes and procedures. Rules of Procedure: recording Notice of Decision with Merrimack County Registry of Deeds. An approved variance, special exception, etc. changes the status of the lot and is a benefit to the property owner. That said, the decision to record a Notice of Decision should be left to the property owner. The Board Members asked that a check box be added to the ZBA application form. ÿ If my appeal is approved, I agree to have a Notice of Decision filed with the Merrimack County Registry of Deeds. __________ (initial). Also, include in your application a check for $12.50 made payable to “Merrimack County Registry of Deeds.” The Board Member terms on the ZBA web page are not correct. The correct terms are: 2019: Derek Lick, William Hallahan, and Ed Canane (replacement for Todd Ritacco) 2020: Joe Eisenberg and Doug Sweet 2021: Betsy Forsham and Samantha Gordon The Land Use Coordinator will update the ZBA web page with the correct terms. The ZBA application has been updated and the revised application posted on the Town’s “Regulations & Ordinances, Permits, Forms” web page. Special thanks to Board Members Forsham and Gordon for all their efforts in revising the application. (Note: The “Regulations & Ordinances, Permits, Forms” web page was later renamed to “Regulations and Permits.”) The links to ZBA documents on the ZBA web page have been deleted. All regulations and forms are now on the Town’s “Regulations & Ordinances, Permits, Forms” web page. (Note: The “Regulations & Ordinances, Permits, Forms” web page was later renamed to “Regulations and Permits.”) Rules of Procedure: method of voting on appeals. The Board Members again discussed the two (2) methods for voting on an appeal (vote on each appeal criterion separately or vote on the application as a whole) and the pros and cons of each method. Motion: Board Member Canane moved that, as a policy procedure, the Board will discuss each individual appeal criterion, not vote on each individual criterion, but rather have one vote on the application at the end. Board Member Sweet seconded the motion. The vote was 2 (Board Members Canane and Sweet) to 3 (Board Members Lick, Gordon, and Eisenberg). The motion did not pass. Motion: Chairman Lick moved that, as a policy procedure, the Board will discuss and vote on each individual appeal criterion and conditions of approval may be determined during the process or at the end. Board Member Canane seconded the motion. The vote was 4 in favor to 1 against (Board Member Sweet). The motion passed. The Land Use Coordinator reminded the Board Members that it now takes a 60 day waiting period to change the voting method. Rules of Procedure: public hearing. Motion: Board Member Canane moved that the Land Use Coordinator publish a notice of a Public Hearing to be held at the next regular meeting, scheduled for November 28th, for the adoption of amended ZBA Rules of Procedure. Chairman Lick seconded the motion. The motion carried unanimously in the affirmative. Electing a Vice-Chair. The Board Members discussed the need for and the role of a ZBA Vice-Chair. Motion: Board Member Canane moved that Board Member Forsham be the ZBA Vice-Chair. Board Member Sweet seconded the motion. The motion carried unanimously in the affirmative. Congratulations Betsy! Correspondence/Final Comments: None received Next Meeting: Moved to November 28, 2018 due to the Thanksgiving holiday. Adjournment Motion: There being no further business, Board Member Eisenberg moved to adjourn the meeting. Board Member Sweet seconded the motion. The motion carried unanimously in the affirmative. The meeting adjourned at 10:00 p.m. Respectfully submitted, Diane M. Lander Town of Sutton Land Use Coordinator