July 18, 2002



VOTING BOARD:      Don Kraemer, Will Phillips, Colleen Martin, Silas Little, Nate Chamberlin.

Alternate Don Fonda was in attendance but did not vote in the hearing portion

of the meeting.

CALL TO ORDER:     By Don Kraemer at 7:02 p.m.

MOTION:                   Made by D. Fonda, seconded by C. Martin to accept 6/6/02 minutes as written.

                                    Voted affirmative.

Public Hearing

C. Martin read the Notice of Hearing:  Concerning the property known as the Temple Cabins on Route 101

in Temple, the Zoning Board of Adjustment, pursuant to the order dated May 6, 2002 of the New Hampshire

Superior Court in the matter of Messina v. Temple 00-E-0406, will hold a hearing on three requests.

1.   Request for a Special Exception to expand cabins 1-5 and 7&8. Specifically, this hearing will address a NHDES letter concerning conditions imposed by prior decision of the Board on cabins 1-5 and to

      consider the expansion of 7 and 8 away from lot lines.

C. Martin read a letter from NHDES, dated June 6, 2001 and signed by William E. Evans, P.E. (see file)

Attorney for Richard Messina, Bobbie Hantz, presented a Memorandum on Remand which addressed the

three requests under consideration. (see file) In reference to point #1 she referred to page 18 of the court

order which states… neither the condition limiting occupancy to one person per unit nor the condition

prohibiting kitchen facilities altogether and limiting water to sanitary facilities is reasonable… and asked the

board to eliminate those conditions. The board discussed the sizes of the various kitchen appliances.

MOTION: Motion made by S. Little to grant a special exception under the terms of Article VII, Section 1.3

                   to allow the expansion of cabins 1-5 with the following conditions:

·        The kitchens will consist of 1 bar sink (approximately 12” x 12” x 8” deep); 1 apartment size refrigerator (approximately 30” tall x 24” wide x 24” deep); a microwave or hotplate and similar small appliances as stated in the letter from NHDES dated June 6, 2001.

·        1 double bed per unit.

Motion seconded by C. Martin, voted affirmative.

1b. To consider the expansion in size of cabins 7 & 8 away from lot lines.

Ms. Hantz stated that she believes that the request meets all the requirements of Article VII, Section 2.3

including a, b & c. Regarding c, she said the approval would be consistent with the Master Plan because the

plan calls for commercial use on Route 101 and both the board and the court agreed that the cabins are a

commercial use. She then presented a plan showing cabins 7 & 8 completely within the 100’ commercial side setback. The plan showed the additions to the cabins going in a northerly direction, away from Route 101. Some of the board members felt that the only conforming direction in which the cabins could expand would be to the west because the cabins were inside the north and south setbacks as well as the side setback to the


Ms. Stark, who abuts the property to the east, said that she has been waiting for three years for Mr. Messina

to remove a defunct septic system of his that is on her property, have a survey done and erect a fence between

the two properties. She felt that the board should not grant this request because Mr. Messina did not keep his

word to her about getting these things done.

The board discussed the possibility of granting the expansion conditional to the septic system being removed

and the fence erected. Ms. Stark said that she and Mr. Messina had an agreement about these things already

and the agreement wasn’t linked to cabin expansion.



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The board revisited the sizes of the requested expansions: cabin #7 would go from 163 sq. ft. to 319 sq. ft.; cabin #8 would go from 209 sq. ft. to 340 sq. ft. Mr.Messina pointed out that even with these expansions, he

would still maintain the 1/8 building coverage limitation.

The board discussed page 22 of the court order and the fact that now that the board knows that it is able to

grant a special exception, does it still believe that the other reasons for the original denial are still valid. These

are: Article VII, Section 2.3a; Article VII, Section 2.3c; Article I, Section 1 & Article IV, Section 13.

MOTION: S. Little motioned to reaffirm its decision of October 5, 2000 to deny the physical expansion of

cabins 7 & 8 based upon the findings reported further on page 22 of the court order and further, that the board’s decision on the expansion of cabins 7 & 8, with respect to the flat prohibition under Article VII, Section 2.3, was in the alternative as queried in the court’s order. Motion

seconded by C. Martin, voted affirmative.

2.   Request for a Special Exception to approve the conversion of the cabins from seasonal to year-round use.

2a. To consider whether an established nonconforming year-round use for cabins 2-5 was lost to

      abandonment or discontinuance.

Ms. Hantz claimed that because of the affidavits of David Buck, Shirley Tuttle & Richard Messina, previous

and current owners of the cabins, cabins 2-6 were deemed by estoppel to have acquired year-round use in 1974. David Buck renovated five of the eight cabins for year-round use and since then the current and

previous owners uniformly intended to continue & improve the use as year-round rentals. None of them

made any overt act or omission which would provide any evidence of an intent to abandon the property.

S. Little stated that he believed that year-round use lasted no more than two years after 1974 and that he saw

no evidence that Shirley Tuttle sought to preserve year-round use of those cabins. She didn’t try to market it

to someone who would continue that use therefore he felt that her intent was to abandon the year-round use

for one reason or another.

Ms. Hantz referred the board to page 29 of the court order which defines discontinuance (see file) and

claimed that there was no intention to abandon or relinquish year-round use by any of the owners.

The board felt that the facts speak for themselves in this case. In the 1980’s and 1990’s cabins 2-5 were

rented year-round sporadically if at all. There is no evidence that any improvements were made to these cabins during these years so that there was a failure to act on the part of the previous owner and therefore an

intention to relinquish the year-round use.

MOTION: S. Little motioned that the evidence submitted to the board at the October 5, 2000 hearing and the

                  February 2001 hearing establishes that in the 1980’s and 1990’s, by the acts of the owner

                  occurring at that time, an intent to abandon use of cabins 2-5 for year-round residential purposes

                  as opposed to transient seasonal use. Motion seconded by C. Martin, voted affirmative.

2*. To determine whether, pursuant to Article VII, Section 1.3 of the Ordinance, the applicant’s proposed

      expansion of use would be a natural, but limited, expansion of use which would not substantially expand

      or enlarge the existing nonconforming use.

Ms. Hantz argued that an expansion of use from seasonal, which is not defined in the Ordinance, to year-

round use merely expands the duration of occupancy. Long-term stable tenants vs. seasonal tourists may be

a less intensive use and have less impact on the neighborhood. She felt that seasonal to year-round use is a

minor adjustment and a natural expansion. (see pages 3-5 of Memorandum on Remand in file)

Sherry Fiske pointed out that if year-round tenants lived in the cabins, there may be some children added to

the school system which could have a large impact on the town.

Mr. Stark said that year-round tenants might add an element of continuity to the neighborhood.

S. Little stated that there are two findings that the board needs to make in order to grant the request:

·        That the expansion is a natural, but limited, expansion

·        That the expansion would not substantially expand or enlarge the existing nonconforming use


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He doesn’t accept that old motor court cabins changing to year-round residential use is not a substantial

expansion, or that it is a natural, but limited, expansion. W. Phillips asked what would be a natural, but

limited expansion? S. Little said that a swimming pool might fit that criteria, but added that it is possible

that some nonconforming uses do not have a natural, but limited expansion. The board discussed the

difference between seasonal transient use vs. year-round transient use vs. year-round residential use and

clarified that the request was to go from seasonal transient use to year-round residential use.

MOTION: S. Little motioned, in relation to page 33 of the court’s order, to deny the request for a special

                  exception to Article VII, Section 1.3, to expand the nonconforming use of the cabins from

                  seasonal transient to year-round residential as this is not a natural, but limited, expansion of the

                  nonconforming use. Motion seconded by C. Martin. The vote was four in favor and W. Phillips


2b. For the Board to review its decision of 10/5/00 with respect to a grandfathered right to use cabins 1-4 in

      light of the Board’s decision of 2/7/01 and the Court’s order.

The Board discussed the timeline: when they denied the special exception on 10/5/00, they hadn’t yet heard

evidence of grandfathered year-round use. In light of what the Board found to be abandonment of year-round

use, the initial establishment of grandfathered year-round residential use, in February 7, 2001 decision,

which was subsequently abandoned, would not disturb the Board’s denial of the special exception that was

requested in October because the board found that grandfathered use to be abandoned.

MOTION: W. Phillips motioned that because the grandfathered use for cabins 1-4, as determined in the

                  Board’s decision of February 7, 2001, was abandoned, that a special exception is required. The

                  special exception is denied for reasons stated previously in this decision of July 18, 2002. Motion

                  seconded by C. Martin, voted affirmative.

3.   Request for an appeal from an Administrative Decision. Pursuant to the Court’s order regarding the

      abandonment or discontinuance of a grandfathered nonconforming use of cabins 1-4, for the board

      to consider intent with respect to the issue of abandonment.

Ms. Hantz argued that cabins 1-4 were deemed to be grandfathered as year-round uses at the inception of

zoning. Since that time the owners uniformly intended to continue the use of the cabins as year-round rentals.

None of them made any overt act or omission which would provide any evidence of an intent to abandon the


D. Kraemer & S. Little were not satisfied that Shirley Tuttle’s declarations now are more believable than what

actually occurred in the 1980’s and 1990’s regarding whether the cabins were rented year-round. D. Kraemer

also stated that there are never enough rentals for people looking to rent, so it’s hard to imagine that Ms.

Tuttle couldn’t find tenants during those years.

MOTION: W. Phillips motioned that a lack of rental activity for, and maintenance of cabins 1-4 during the

                  1980’s and 1990’s, a time of high rental demand, evince an attempt to abandon use of those

                  cabins for year-round residential purposes. Motion seconded by Colleen Martin. The vote was

                  four in favor and W. Phillips opposed.


D. Kraemer read a letter from Richard Messina requesting an Appeal from an Administrative Decision

(Article VI, Section 4) related to the Selectmen’s meeting of May 28, 2002 at which Mr. Messina claims

that the Selectmen refused to accept a building permit application from him to winterize the porches of his

cabins, on the grounds that he needed a special exception.

The board members felt that they had no jurisdiction without written documentation. It was suggested that

Mr. Messina bring a copy of the permit application and a written decision from the Selectmen and then the

Board can hold a hearing.

MOTION: W. Phillips motioned to reject the application on the basis that there is no appealable decision,

                  determination or requirement of and by the Board of Selectmen. Motion seconded by

                  N. Chamberlin, voted affirmative.

Meeting adjourned at 11 p.m.                                       -- Minutes submitted by Diane Nilsson