|Voting Board||Chairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Bob Spear & Jim Tuttle; alternate member Andy Hoar.|
Faiman called the meeting to order at 7:30 p.m. He introduced the board members and said that the regular board members would sit on the cases this evening unless there was a conflict of interest.
|Motion||Roberts/Eckstrom to accept the 3/20/07 minutes as written. All were in favor.|
|Motion||Roberts/Eckstrom to accept the 3/27/07 minutes as written. All were in favor.|
Kevin J. Degroot and Corey R. Chappell have applied for a special exception under Section 5.3.7 of the Wilton Zoning Ordinance, and for variances to sections 5.3.7(a), 5.3.7(c), and 5.3.7(d) of the Ordinance, to permit the use of the existing building on Lot J-16-9 Dale Street (the Odd Fellows Hall) as a three-family residence.
Faiman read a letter from Dawn Tuomala, with Monadnock Survey, who represents the applicants, asking, on behalf of the applicants, that the application be continued to the May meeting. Building Inspector Bill Condra asked how many times applicants can continue a case before they need to reapply. Faiman said that the board has no policy on that. Board members felt that the applicants should re-notify abutters since they were first notified in February.
|Motion||Eckstrom/Tuttle to continue the Degroot/Chappell case to the May 8 meeting and to request that the applicant pay new abutter fees and confirm the correctness of the abutter list originally submitted with the application, so that abutters can be re-notified. All were in favor.|
Roger and Sabrina Hatfield asked if their case could be heard last, because their attorney had not yet arrived. The remaining applicants were ready to proceed, so board members agreed to switch the order of the cases.
Patricia M. Babineau, as Trustee of the T. Arthur Babineau 1997 Irrevocable Trust, and Marie L. Sirois have applied for a variance to section 6.2.3 of the Wilton Zoning Ordinance to permit a lot consolidation and re-subdivision of Lots D-22, D-39, and D-40, Holt Road, resulting in two lots whose frontage would be less than otherwise required by the Ordinance.
Faiman explained the board procedure for hearing cases and, told Sam Proctor, who was representing the applicants, that an abutter had been omitted from the applicants’ abutter list. The clerk sent the notice out, but the applicants now owe the town the $4.00 to cover the cost.
Mr. Proctor presented a town tax map which showed the current Lot D-39 which is .16 acres and Lot D-40 wrapping around it at 5.412 acres. When he came before the ZBA in January requesting setback reductions on the smaller lot in order to build a house, board members were reluctant to grant the request and suggested a possible lot line adjustment and re-subdivision of the two lots that would make them each more conforming.
He then presented a plan showing a merger of the two lots totaling 5.57 acres, and a proposed subdivision with each lot having 123.96’ of frontage. He explained that in doing the survey it was discovered that a small (200 – 300 sq. ft.) piece of Lot D-22 actually crosses Holt Road and exists on the other side, so that is included in the merger as well. He said he believed the plan met all the conditions required by the ordinance except for the frontage requirement.
Abutter Archie Thompson asked if Mr. Proctor knew where Holt Road ended. Mr. Proctor said that the tax map shows it ending at the end of D-40. Mr. Thompson said that the town plows past that point.
Board members looked over the criteria for the area variance presented in the application and felt it was reasonable.
|Motion||Eckstrom/Spear to grant the variance to allow a subdivision creating two lots, each with 124’ of frontage where 200’ would be required. All were in favor.|
Roger and Sabrina Hatfield have appealed a Notice of Zoning Violation and Cease and Desist Order issued by the Wilton Board of Selectmen that asserts that they conducting a commercial enterprise on Lot C-4-1, 1 Victoria Lane, in the General Residential and Agricultural District. The Hatfield’s appeal on the ground that their hobby dog-breeding is permitted under section 126.96.36.199 of the Wilton Zoning Ordinance. Alternatively, the Hatfield’s have requested a special exception under section 5.3.1 of the Ordinance to permit their dog-breeding activity as a home occupation.
Faiman explained that he erroneously noticed section 188.8.131.52 in the public and abutter notices and said that that section doesn’t exist. The section he meant to cite is 184.108.40.206. He said if anyone felt the error affected their ability to prepare for this case, they could ask for a postponement. There were no requests.
Attorney Gerald Prunier represented the applicants and presented a document, signed by the owners of the six abutting properties, which said that these abutters have never had any problems concerning the Hatfield’s dogs nor their Home Occupation as hobby breeders.
He also presented a copy of RSA 437:2(I-a) “Commercial kennel,” which is the state’s definition of a commercial kennel: any person, business, corporation, or other entity that sells or transfers 10 or more litters or 50 or more puppies in any 12-month period. He stated that the Hatfield’s are hobby breeders and not commercial breeders, as defined by the state. He said that the Hatfield’s breed their dogs a few times each year and people come to the house to see the dogs.
Mr. Prunier read through the application for 5.3.1 Home Occupation special exception. See file. He also read through the application for 220.127.116.11 Special Exception Not Required. See file.
Eckstrom asked how many litters the Hatfield’s usually have in a year. Mr. Prunier said between two and four.
Roger Hatfield explained that hobby breeding to them is a source of pride, in that they try and improve the conformation of the breed, and they travel around to dog shows and win awards based on how well they do. He said they own 7 dogs and that are their pets. Since they first got complaints about barking from the neighbors, they put doors on the kennels and purchased bark collars for the dogs. Since purchasing the collars, he said, he hasn’t heard of any problems from the police chief.
He added that the puppies are kept in the house.
The Cease and Desist Order and a cover letter signed by Wilton Board of Selectmen Chairman Daniel Donovan, III were produced. The letter states that the dog breeding business as described on the Internet constitutes operation of a commercial enterprise. When asked what this refers to, Mr. Prunier said that the applicants have a website. Mr. Hatfield said that the URL is:
Eckstrom asked if she could bring her dog to be trained at their home. Hatfield said no. He said they work with their own dogs in Hudson, but they have a 50’ x 50’ ring in their field and they do offer free training to anyone who buys a dog from them.
Eckstrom asked if they advertise elsewhere. Hatfield said that they do advertise in dog club brochures.
Hoar asked about the size of the kennels. Hatfield said he got building permits to build two 10’ x 20’ buildings that hold five kennels per building. Each building also has an 8’ x 20’ run.
Building Inspector Bill Condra said that he remembers having a discussion with Mr. Hatfield about the need for building permits, and he remembers telling Mr. Hatfield that anything under 100 square feet did not require a building permit, but he does not remember issuing a permit for two 200 square foot buildings. Mr. Hatfield said it would have been issued in August 2006 and may have been under the name of the previous owner of the property, which may have been Curt Kensten.
Spencer Brookes asked about the dog wastes. Mrs. Hatfield said that shavings are kept in the kennels and the waste is picked up and disposed of off of the property.
Faiman asked if the Hatfield’s were licensed by the state. Mr. Hatfield said that because they have fewer than 10 dogs and they do not board dogs, they are not required to be licensed.
Paul Robichaud asked if you have 10 dogs are you considered commercial. Mr. Hatfield said he wasn’t sure about NH law. Spear asked about a litter of puppies – do they count or are they considered temporary? Mr. Hatfield said that they now have a three month old that they are going to keep and offer co-ownership to another party. He also said that when their dogs reach the age of seven, they retire them and find homes for them.
Michael Weeks, Old County Farm Road, asked how many dogs are on the property at present, including puppies. Mr. Hatfield answered 14.
Sussy Rose Shields asked the price of the puppies. Mr. Hatfield answered that the price for a puppy that will be purchased by someone going into the business of hobby breeding would be $2,200. A puppy purchased as a pet would cost between $1,200 and $1,500. She also asked why they have a link to Paypal on their website. Mr. Hatfield said it was so that people could buy their dogs in a convenient way. She asked how long they will continue to use the bark collars on the dogs. Mr. Hatfield said he works closely with the Wilton police chief, he wants to cooperate with his neighbors, the bark collars have been very successful and now the dogs know what they are when they see them, and he will continue to use them.
Nate Reynolds asked who the people were that signed the petition supporting the applicant. Faiman looked at the map of the property and the abutter list and said that the names on the petition were all of the actual abutters to the applicants’ property. He noted that the configuration is a bit odd in that one of his abutters’ property wraps around his by a tiny strip of land so that the neighbors to the east are not actually abutters.
Shields pointed out that the neighbors to the east, on Old County Farm Road, due to the location of the applicants’ house and the way sound travels there, are the ones hearing the barking, and not the abutters.
Bill Condra, Wilton Building Inspector and Zoning Officer, made the observation that the website advertisements, co-ownership of dogs, offsite breeding activities and advertising these options for a price really looks like a business. He said there is room for discussion as to whether it is a home occupation or a commercial entity. If it is a home occupation he didn’t believe it qualifies as a home occupation without site plan review before the planning board.
William Gilman, Old County Farm Road, said the problem is the dogs’ barking. It started last summer, the dogs would bark all day and into the night, he called the police and it would stop for a few days and then start again. He said the dogs were barking today and yesterday and on March 31st.
Eckstrom asked if anyone else in the audience, who owns a dog, had had a complaint about noise related to their dog. Nate Reynolds said he had a dog but had not had a complaint. Kimberly Reynolds said that she certainly understands that dogs occasionally bark, at the UPS delivery man or at whomever, but in this case she and the neighbors are talking about continual barking for 30 minutes or longer, sometimes in the middle of the night when you’re trying to sleep.
Paul Robichaud said the issue is the dogs will be barking sometimes for a half an hour, an hour, an hour and a half, morning, afternoon, night, middle of the night, round the clock the dogs can be barking. And it’s not one dog, it’s 5, 6, 7, 10, 12 dogs that are barking continuously morning, afternoon, evening, middle of the night, early morning. That’s what our problem is, it’s the noise all the time.
Spencer Brookes questioned whether there was any comparison between what the Hatfields are doing and a horse farm.
Michael Weeks presented some printed examples of the Hatfields’ website. He said that in his opinion a home business should not have an adverse affect on the peace and tranquility of the neighborhood. He said even though he is not an abutter, he might as well be right next to them because when the dogs bark, he can hear them. He said on many occasions the police have been notified about the noise from the dogs and the solutions are usually short-lived. He wondered, if the dogs have bark collars, do they have working batteries.
Paul Robichaud read section 4.6.2 of the Wilton Zoning Ordinance, performance standard relating to noise that would have to be met if the applicants were to be granted a home occupation special exception.
Heidi Blackmer Robichaud said that the idea of getting rid of your dogs when they turn seven years old doesn’t sound like something you would do with your pets, but suggests a commercial venture.
Attorney Prunier, in response to comments from neighbors, said that the Hatfields’ make sure the older dogs go to good homes. As far as the noise, he said the Hatfields have purchased bark collars, and at night the dogs are penned inside. Faiman asked for clarification regarding what penned inside meant. Mr. Hatfield said that when it is cold at night, they put the dogs in kennels in the garage. He added that the barking in the middle of the night that the neighbors spoke of couldn’t have happened recently because the dogs have been in the garage at night.
Spear asked if the Hatfields ever let their dogs out unsupervised. Mrs. Hatfield said no, that they were always supervised when they were out of the fenced area. She said they had not received any complaints about them running loose.
Jessie Salisbury asked what kind of dogs the Hatfields breed. Mrs. Hatfield answered German Shepard.
Faiman summarized the case thus far: The Hatfields regard themselves as hobby breeders. They keep a substantial number of dogs, currently 7 pet/breeding dogs which they train and show. They breed the dogs and sell the puppies from that breeding which they regard as a secondary activity going along with their primary activity of raising the dogs for training and showing purposes. They have two kennels on the property that the dogs are kept in. The dogs are sometimes kept in the garage. The puppies are kept indoors. They have done what they feel is possible to stop the dogs from barking including the use of an ultrasonic horn and bark collars.
Neighbors have been bothered by barking, which has been characterized as excessive, lengthy and noxious, even a substantial distance from the Hatfield’s property. The argument has been made that the activity the Hatfields are engaged in meets the terms of being a commercial activity in that it involves advertising and selling and that that is inherently a commercial activity. And so regardless of whether it’s hobby breeding or commercial breeding nonetheless that it should be treated by the ZBA as a commercial activity and dealt with in those terms.
Faiman said board members need to decide whether they think this is a commercial, as in home occupation, activity or not. If not everyone can go home because the board has no power to regulate people keeping dogs as pets or as a hobby. If the board finds it is commercial then it needs to be classified either as exempted home occupation (18.104.22.168) or a regular home occupation that requires a special exception (5.3.1 and 6.6.1).
Eckstrom asked if an eBay seller would be considered commercial and fall into the home occupation section.
Faiman gave a short history of 22.214.171.124. He said that home occupations requiring special exceptions have been in the ordinance for a long time, but about 10 years ago the planning board wrote 126.96.36.199 because it came to their attention that there were a lot of artists, writers, software engineers etc. that worked from their homes. So they were carrying on a commercial activity but they had no customer or client visits, had no employees, and had no signs in front of their houses. What makes 188.8.131.52 different is that you can’t tell a commercial activity is happening there, whereas with a regular home occupation there are usually client visits of some type, the need for parking, etc.
Roberts felt that the Hatfield’s operation was beyond the low-impact exempted home occupation that Faiman just described and may have already outgrown the standards for a regular home occupation.
Tuttle said that the state defines a commercial kennel and the Hatfield’s don’t have a commercial kennel according to the state’s definition. Hoar said that the board is trying to decide if the Hatfield’s have a commercial use according to the zoning ordinance, which is separate from how the state regulates commercial dog kennels.
Faiman said that he feels that if you are selling something from your home, even if you are not making a profit, that it is a commercial use.
Spear said that if it weren’t for the website, which makes what the Hatfield’s are doing look like a commercial use, they are just people who own dogs and are selling puppies. He felt that if they reworked the website so it had less of a commercial presence to it, they wouldn’t need a home occupation or anything. Eckstrom added that she sees an indication of perhaps commercial activity is having the option to pay by credit card on the website.
A question was raised about how many litters of puppies someone could sell from their home before it was a commercial use. Faiman said that to his mind if something is done regularly, with an expectation of income, then it’s a commercial activity, even if income is not the primary reason you do it.
|Motion||Eckstrom/Tuttle to find that the Hatfield’s dog breeding activity is not a commercial activity in the sense of the Wilton Zoning Ordinance, and therefore that the issuance of the Cease and Desist Order by the Wilton Board of Selectmen was in error.|
|Vote||Eckstrom, Spear and Tuttle were in favor. Faiman and Roberts voted no.|
|Motion||Roberts/Tuttle To adjourn the meeting. All were in favor. Meeting adjourned at 9:45 p.m.|
Submitted by Diane Nilsson
Posted April 18, 2007