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ZBA debates Water Monkey issue, tables discussion to Tuesday

August 20, 2014
NEW DURHAM — More than 30 concerned residents attended a two and a half hour public hearing opened by the Zoning Board of Adjustment (ZBA) on Aug. 12 on the proposed special exception for the Water Monkey water sports camp to be located at Cove Cottages at 298 Merrymeeting Lake Road. Following the hearing, the ZBA deliberated until 11 p.m. and then continued the matter to Aug. 26, as it required clarification from the planning board.

One of applicant Russ Weldon's team of attorneys, Arthur Hoover, presented an overview of the situation, covering responses to concerns residents have raised in the past about the camp in the process.

He stated the ZBA is a land use board, so that anything pertaining to the water is not under its jurisdiction. He also stated that lodging the young campers at Cove Cottages was not a case of "chipping away" at the town's ordinances, since they were not asking for a variance.

"We're requesting a special exception," he said, going on to say, "The ZBA decides on a case by case basis; it is not a court of law, so this cannot set a precedent."

Hoover explained that there would be no change to the structures and the cottages would be rented for sleeping, eating and waiting to go out on the boats. He indicated that this is the third summer of Evan Goldner's Water Monkey Camp, which has been operating out of Camp Birch Hill and hosts youngsters aged 11-17, and the special exception would allow Weldon to lease the cottages to Goldner, rather than to groups and individuals as he has in the past.

Hoover asserted that Building Inspector Arthur Capello, no longer with the Town, stated the lots in question, 11 and 32, tax map 119, were located in the area where commercial uses are permitted, according to the town's land use suitability map. An April 5 letter to Hoover from Capello indicated it was his opinion that the proposed use would be permitted under Article VIII of the Zoning Ordinance as a special exception.

The planning board, however, responded on April 17 that it "may or may not agree with" Capello's interpretation.

Attorney John Cronin outlined the benefits of housing the camp, as opposed to current conditions. He said the density would be reduced from an average of 44 to a limited number of 30, that tobacco and alcohol would be prohibited, the campers would be supervised at all times, there would be staggered drop off and pick up times instead of traffic at all hours, the boats would be used only at certain hours, a curfew would be enforced from 10 p.m. to 7 a.m. seven days a week, and Goldner would essentially be a single occupant with connections to the lake who would also be a source of contact for concerns.

He said the application satisfied the standard of special exceptions as it would not cause undue hazard to health or property values and would not be offensive to the public. Residents, though, have voiced major concerns about expansion of commercial use at the lake, shore erosion, threats to loons from the powerful waves of wakeboard boats and damage to retaining walls.

Cronin introduced an array of professionals who spoke to the appropriateness of the proposal.

Regarding the septic system, Bradford Jones of Jones and Beach Engineers reported the state approved the new leach field and that the old systems around each cottage have been replaced by a pump system, which represents a decided improvement.

Stephen Pernaw of Pernaw and Co., an engineering firm specializing in traffic studies, performed data collection and a safety evaluation during a week in July. His lengthy presentation indicated a "low volume road with many pedestrians," with lower volumes when the "campers will cross," and that the crosswalk has ample capacity. He predicted having the camp rather than renters would generate less traffic. ZBA member David Shagoury questioned some of Pernaw's findings on sight distance. Pernaw's opinion overall was that the proposed use would not create undue hazard in terms of vehicles or pedestrians.

Appraiser Mark McKeon said leasing to one user compared to different groups would not have detrimental impact on property values, and that the better controlled environment it would provide might enhance surrounding properties.

ZBA Chairperson Lawrence Prelli told Weldon that any change of use would carry forward with the land. "It's something you'd have to live with."

Weldon, who moved to the lake in 1980, said he understood that if he wanted to return to renting the cottages individually, he would need to go through this process again. He said he would not propose a change of use to something detrimental.

He explained that he and Goldner developed a list of conditions and restrictions. Member Joan Swenson said she would like to see those conditions be in perpetuity so the restrictions would go with the property. Cronin said they would be indicated in the conditions of approval and could be recorded at the Registry of Deeds.

Missing from the Weldon/Goldner agreement was appropriate use of the water by taking the wakeboard boats to different parts of the lake so not any one area is targeted. Cronin reiterated that the ZBA has no power or authority to control what happens on the water.

In the spirit of giving back to the community, Weldon told the board that for every 20 campers, one scholarship would be given to a child from New Durham. Goldner said the youngsters are taught how to reduce their carbon footprints and will be planting trees.

The camp's web site indicates activities offered include wakeboarding, waterskiing, wakeskating, wakesurfing, tubing, kayaking, sailing, stand-up paddleboarding and fishing. Weldon said the wakeboard boats are 21 feet long and that there would be two of them, that there is one staffer for every three campers, and one staffer living in each cottage.

Hoover had presented information that the Merrymeeting Lake Association approved the proposal three to one by written ballot. Donna Vello argued that a vote of 100 in favor of the change in use and 31 opposed represented a small percentage of the association membership in terms of households, as each was allowed two ballots, and an even smaller percentage of all lake property owners. She said the camp had a huge impact on shoreline repair.

Yet, some of the abutters to the property are behind the change. Tammy Hutchinson said Goldner was respectful of the lake and the situation would be "better than in the past."

Matt Murphy urged approval, saying, "We know what we're going to get and it's preferable to unknown neighbors."

Terry Chabot asked about enforcement of the conditions of approval for the camp. Prelli said that would fall to the Code Enforcement Officer. Audience response to that indicated little faith in carrying out enforcement, if needed.

Bob Snow brought up the possibility of new water recreational activities as yet to be invented, as wake boarding has eclipsed water skiing. He asked if those would be a de facto use of the camp.

Dennis Neyland stated lakeside lot 32 has an address of 299 Merrymeeting Road, which was not referenced in the public hearing, and is taxed as residential. Weldon spoke of a clubhouse as one of three options to water access and commercial use of property for 60 years.

Regarding town services, James Fenske described a safety hazard at the corner in question and injuries associated with water sports, potentially demanding more services but paying no additional taxes. He said if commercial enterprises accelerated, the change would affect property values. Fenske also encouraged the board to consider Section B of Article VIII.

Commercial expansion was at the forefront of Ted Booth's concerns. He said Weldon had 138 boats stored on two properties being used as commercial boat storage. "I disagree with the statement of no impact on property values," he said. "Boat storage is ugly."

He suggested the camp pay for removal of its trash, rather than using the town transfer station. He added that the town "runs short" on a fire department, and the camp could be a liability.

Cronin countered the arguments against opening the lake to commercial use by citing the zoning ordinance and suitability maps. "You can't change the rules in the middle," he said.

Neyland had mentioned a covenant written into his deed disallowing commercial or agricultural use, and Booth said, "The ZBA can't override what's placed in a deed."

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