I also attach an article I prepared earlier today for the Eagle Times giving background on the Dance application and the text of the zoning law and variance conditions under NH law. Even though Mr. Dance is not pursuing the variance at this time, I thought Walpolean readers might wish to have the text of the law at hand.
October 19, 2005
Public Hearing;
.
Creg Dance will be in for a variance to keep alpacas at his farm on Wentworth Rd.
New Business
Present for bylaws change from $30 to $75.
To the Eagle Times
10-18-05
AlpacaDance Owners Seek Variance From Walpole Zoning
By Charles C. Bingaman, Contributing Writer
Creg and Jill Dance, owners of AlpacaDance Farm on Wentworth Road in Walpole, will seek a variance from Walpole residential zoning restrictions to operate an alpaca breeding and sales farm and retail shop at tonight’s 7:30 p.m. meeting of the Zoning Board of Appeals.
In a separate action, they are submitting a proposed site plan to the Walpole Planning Board for operation of a bed and breakfast in their residence as required by Walpole zoning ordinance.
The Dances, who purchased land on Wentworth Road in 2000, renovated an old but never completed mansion and brought in a herd of alpacas from the State of Washington in 2002. Since that time, they have built pens, barns and other structures to house their herd that currently numbers between 30 and 40 animals.
In August, in response to a complaint by another resident of Wentworth Road, the Zoning Board requested that the Walpole Select Board write a letter to the Dances, all of whose property is in town’s Residential A zone, warning them to stop violating zoning restrictions. Current Walpole zoning allows bed & breakfast businesses in all zones, providing that they are limited to four rooms and have site plan approval from the Planning Board, an approval the Dances never sought.
In related issues, Dance said that, while he had advertised the property’s availability for weddings and receptions on his web sites, www.alpacadance.com and www.pillarsandporches.com and elsewhere, he had no intention of seeking such business, would not do so in the future and was having the web sites changed. The two meetings he had held there during the summer, a bank sponsored meeting and a friend’s wedding, were, he said, special cases.
The preamble to the residential zone ordinance provides that its purpose is “to preserve from the distraction of business, traffic noise and odor, those areas in Town suitable for quiet and safe residence and to assure those who built houses there that they may continue to dwell in such comfortable surroundings.”
The Walpole zoning ordinance provides limited exceptions to permissible uses other than residential homes in the Residential A zone. But it does allow “ Farm and garden activities… when incidental to primary residential use, and home food and garden produce may be exposed for sale in this district, provided that such use is in no way injurious, obnoxious or offensive to the neighborhood.”
At a preliminary meeting with the Zoning Board in September, Creg Dance argued that the alpaca herd is, in fact, “incidental” to the Dances’ residential use of the property and stated that he would be asking the Board’s approval to enlarge the herd from time to time to as many as 50 animals. He also offered to close the retail shop, although he has now included its continuing operation in the variance application. Dance also emphasized that he wanted to comply in full with Walpole zoning law.
It is expected that abutting and other nearby neighbors of the Dances will argue at the hearing that a herd of 30 to 50 alpacas is far beyond “farm and garden activities…incidental to primary residential use”, that they have found the noise made by the herd “obnoxious or offensive to the neighborhood” as forbidden in the zoning law, that running a retail shop violates restrictions on residential use, and that the activities in violation of the residential zoning restrictions must cease.
Whether the Dances can be granted a variance to operate outside the restrictions of the Walpole zoning law depends, according to New Hampshire case law, on their persuading the Zoning Board that they meet five conditions: 1) Granting the variance would result in no diminution of value of surrounding properties; 2) Granting the variance would benefit the public interest; 3) Denying the variance would result in unnecessary hardship to the owner seeking it; 4) Granting the permit would do substantial justice; and 5) The use, if granted, would not be contrary to the spirit of the zoning ordinance.
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