Town of Fitzwilliam, NH - Planning Board Minutes 12/20/05

Suzanne is staring her own consulting business as a coach from her home, working with people who want to start their own business. Consultation will be primarily by telephone, and if meetings are scheduled they will be off site; she will have no employees and will not have a sign. There will be no additional traffic generated in the area.

Public hearing: Raman Patel Site Plan Review application to open a retail convenience store in an existing building located at 646 NH Route 12 South, Map 8, Lot 13, Rural District.

JR Davis and Silas Little, attorneys for the applicant and an abutter, were present. Paul Grasewicz, engineer, presented the site plan review application and plans for the Board’s review.

Silverman asked about the resolution of the applicant’s special exception appeal. Gillis gave a brief summary of the case as it moved from Planning Board to Board of Adjustment to Board of Selectmen and back to the Board of Adjustment. Mr. Little wanted it recorded that his client’s appeal of an administrative decision of the Board of Selectmen disputed the authority of the Selectmen to sit as a board of appeals from planning board decisions. The Selectmen, in this case, ruled that the Planning Board did not make a binding decision during a preliminary consultation with Mr. Patel, and further that Mr. Patel did not need to get a special exception to convert an antique store to a convenience store as it would be a grandfathered continuing nonconforming use. The Board of Adjustment upheld the Selectmen’s authority to make the determination.

Pini asked if the Board could accept the application as complete, pending a special exception if one was necessary. Mr. Davis, attorney for Mr. Patel, noted the application before the board was for a site plan review and if the application was complete under the regulations it must be accepted. He added that the special exception issue has already been addressed.

Mr. Davis said that at the time the Planning Board referred Mr. Patel for a special exception, he did not have legal representation. Once retained Mr. Davis felt that no special exception was needed and asked the Selectmen for an administrative determination about the continuing grandfathered nonconforming use of the property Mr. Patel wants to purchase. The Selectmen determined that under the town zoning ordinance retail is retail and the property was grandfathered as a retail store, therefore an antique store could be converted to a convenience store. Letters to that effect are part of these minutes.

The Selectmen’s determination was appealed by an abutter and the Board of Adjustment upheld the Selectmen. Mr. Davis noted the time for appealing the Selectmen’s decision was past.

Mr. Little, attorney for the abutter Mr. Dwinell, disagreed, saying the Selectmen’s decision is of no precendential value, that Mr. Davis was seeking an advisory decision. He added that this is the first time a body with the authority has had a chance to rule on whether the convenience store is a change in use and whether the apartment shown on the plans is allowed. He stated that there is no record of a variance or special exception being granted to establish an apartment in the business.

Mr. Little said the action tonight is to determine if the application is complete and asked if the necessary variances have been obtained. He said that now all we have are advisory opinions and the Selectmen are not authorized to make a decision.

Gary Taylor, owner of the property, gave a brief history of the property, noting the building was constructed in 1959. Approval was given for an apartment when the building was first a restaurant and was there when he bought the property. Mr. Little noted the town’s tax cards for the property do not support an apartment. Mr. Davis said tax cards may or may not reflect all changes, and it is not a legal document.

Mrs. Coburn, an abutter, said that she and her husband moved to their current home in 1973. The building had burned about that time and was vacant for five or so years, before it was rebuilt in 1977. The restaurant owner was living in a trailer not in an apartment inside the building. The building had a series of owners and Theresa Doyle bought it in 1978 and it had no apartment. Mr. Taylor disagreed. Beckwith asked if a legal apartment would be grandfathered. Mr. Davis said the apartment predated zoning regulations.

Mr. Taylor said Mrs. Doyle was the first to use the building to sell antiques, and she sold it to a man from Keene who put in the apartment. Mrs. Coburn said the apartment was after zoning then because Mrs. Doyle bought it in 1988. This is an issue that needs to be resolved.

Scott McLaughlin said he’d not received any notification of the appeal hearing. (Note: A certified letter was sent on October 28, 2005. It was not returned to the Land Use Department as undeliverable.)

Mr. Davis reads a 1998 letter from Mr. Silverman, who was chair of the Planning Board at the time, saying the letter establishes the building as a grandfathered use for business and Mr. Taylor has testified that the apartment was there when he bought the building in 1998 and he has used the apartment.

Mr. Davis noted the Selectmen’s decision was not appealed on its merits, but that for planning purposes a retail antique store and a convenience store are different and therefore a site plan review for the conversion is appropriate, whereas for zoning purposes they are both retail.

Mr. Niemala, an abutter, said he’d understood that abutters would have a chance to speak at this meeting. Silverman said that would happen once the Board accepted the application as complete.

Mr. Dwinell, abutter, noted that when Mrs. Doyle remodeled the building in 1990 there was no apartment. He said that the zoning for that property is Rural, and a combined business and residence is not allowed. He suggested he would get an affidavit from previous building owners Mrs. Doyle and Mr. Helie regarding the apartment.

Pini asked if Mr. Patel said he would use the apartment during the preliminary consultation. He did. Landy said the Board needed to address the use issue and our ordinance does not differentiate among retail businesses, so there is no change in use. He agreed the apartment is a different issue. He also thought that while there may be a change in hours of operation it would not be substantive enough to change the use.

Mr. McLaughlin had contacted the state liquor department and said they make a distinction between durable goods, like antiques, and consumables. The liquor commission may become involved in the convenience store site plan review process.

Mr. Hunter, an abutter, asked if Mr. Taylor had applied to do business as a retail store or as an antique dealer, suggesting the town may have made a distinction then. Pini said no one came in because it was grandfathered as an antique business, adding the town has no further definition of ‘retail.’

Mr. Hunter feels that the applicant will, in the future, want to put in gas tanks and he is afraid of the environmental impact that will have on surrounding wetlands – he wanted their voices to be heard. Silverman repeated that the hearing was not at that point yet; the Board is trying to decide if the application is complete and if the applicant has obtained all necessary permits.

Mr. Davis read excerpts from his letter to the Selectmen requesting the administrative determination that refer to the apartment. He pointed out that the Selectmen did not question the apartment at that time, nor did they issue a cease and desist order to Mr. Taylor.

Silverman said the question is not about retail, but whether or not the convenience store is an expansion of a nonconforming use. He said the Board needed to make a determination based on Article VIII, Section 127-35. Pini said she assumed the building would not be expanded in area and Mr. Davis agreed. Haynes wondered if B. applied (‘changing a nonconforming use) instead, and asked what was the definition of area. Landy added that D. didn’t apply because the property was not abandoned.

Mr. Dwinell said there would be a change in the hours of operation, number of trucks making deliveries and daily traffic coming and going. He noted the traffic on Route 12 is substantial and the entrance to the site is across from the turning lane. There was a fatal traffic accident at that site a few years ago. Pini said she didn’t think the Board disagreed that the proposed use will be different, but the town definition of retail is retail. Landy added that once the site plan review begins these issues can be addressed.

Mr. McLaughlin asked if the parking lot is considered part of the ‘area footprint.’ He said his property gets a lot of water from the existing lot and if it expands there will be even more water. Landy said the footprint is the physical building itself. Pini thought it was important to establish what we mean by “area.”

Mr. Davis suggested that it is the law of NH that if there is a valid nonconforming use it can continue unless there is ‘substantial change.’ He added there is a common understanding of the issue of area that it is the area of occupation or use. In this case, the historic use has been the building and parking lot. His client is not proposing any change to those areas; in fact they think the number of cars in the lot will decrease relative to the number of cars there on the third Tuesdays when the antique dealers’ tail gate sales occur. Mr. Patel anticipates six to eight cars at a time usually. He emphasized that there is no substantial change in use.

Silverman asked for the minutes of the preliminary consultation and read from them. “Silverman noted it is currently a nonconforming retail business in the Rural District. The Board agreed that the proposed business is a retail business, but of a different type. Pini quoted the Land Use Ordinance Article VIII, Section 127-35 B - A nonconforming use can be changed to another nonconforming use by Special Exception from the Board of Adjustment, provided they find the nonconforming use is more or equally in harmony with the character of the neighborhood and the applicable requirements of the zoning district than the existing use.”

He said he basically agrees with the Board’s initial ruling that a convenience store is a change in use and that’s why the Board referred Mr. Patel to the Board of Adjustment for a Special Exception and not a Use Variance. He felt the length of time the case is taking is a direct result of the applicant’s trying to circumvent the special exception process.

Silverman moved, Haynes seconded a motion to send the applicant to the Board of Adjustment for a Special Exception under Article VIII, Section 127-35B. He repeated that it is not a question of whether it is retail, but is an issue of impact on the neighborhood. Beckwith said she never would have seconded the original motion to send the applicant to the ZBA for a special exception if she’d known then what she knows now, having done some research. Landy said he is not convinced that the convenience store would have more traffic than the antiques store.

Mr. McLaughlin asked what ‘a slight change’ is in hours of operation. His bedroom abuts the property and if the store is still open at midnight the difference will be substantial to him. Silverman said that is an issue for the site plan review. Mr. McLaughlin asked if it wasn’t also an ‘impact on the neighborhood’ issue.

Pini remarked that the Board wasn’t looking at a substantial change in the neighborhood, but at a change in the use of the land. The physical area is not being expanded and so, “contrary to what I said in the preliminary consultation, I don’t think the use has changed.”

Mr. Dwinell repeated that there is a lot of traffic on antique dealers’ tail gate sales days, which cause a lot of traffic problems. Cars park on the grass next to the road and he thought that cars were parking on the septic system as well. Mr. Niemala also questioned a second entrance on the property. Landy reminded the group that the Planning Board had approved the parking plan. Mr. Taylor said cars do not park on the septic system, but on the third Tuesdays may park near the leach field. He put timbers down to keep parking off the leach field, but Mr. Holman, a septic field contractor, said it would be OK if a few cars parked on it infrequently.

Silverman asked if the Board felt the apartment was grandfathered or did it need to go to the Board of Adjustment. Mr. Taylor stated that on May 7, 1959 the Town gave approval to Mr. Barry to build a restaurant with an apartment. Silverman said the Board needed documentation that the apartment was again part of the structure after it was destroyed by fire and abandoned. Landy asked if the apartment was in existence prior to April 1987. Mr. Niemala said police records should show that no one was living there when the building was robbed twice and they were called.

Mr. McLaughlin thought that if the town records do not show an apartment that finding should prevail. Mr. Davis said his client wants to pursue the apartment but asked if it made sense to postpone the site plan review because of it. He added it was a separate issue. Landy said that if an apartment is used but it is not part of the nonconforming existing use, the property becomes a combination business and residence and that would be a change of use. Pini said she was willing to go forward even if the apartment issue wasn’t resolved.

Silverman expressed his concern that if the Board accepts the application as complete, the Board will lose their right to send the applicant to the Board of Adjustment. He said he wanted a legal opinion on that question.

Mr. Davis said, on behalf of his client, he would stipulate that the Board can send them to the Board of Adjustment after beginning the site plan review. Landy asked if the client was willing to go retail only and Mr. Davis said his client did want to use the apartment.

Mr. Lynch said he understood the promotional signs at Dunkin’ Donuts are of concern. Usually promotions are done month to month and these are the first of the kind they have received from the main office.

Landy said the Town sign ordinance calls for all temporary signs to be removed at night and signs that move are not allowed at all. A temporary sandwich board sign that is placed daily is OK. He added that it would be useful for Mr. Lynch to share this information with the Dunkin’ Donuts corporate office. Mr. Lynch acknowledged that different towns have different regulations.

Mr. Lynch said Mr. Mike’s manager approved the new promotional signs. Silverman noted that they already have a special exception for more signs than are normally allowed, and that all temporary signs must be removed from all parts of the property, even in back.

Mr. Lynch said he would remove the signs immediately, and confirmed that the business could have no exterior signs. Landy noted all businesses in town have to live within these regulations, and reminded Mr. Lynch that Mr. Mike’s and thus his store are part of the gateway to an historic town.

This being a part of the subdivision regulations the Board is authorized to approve such changes and the amendment does not need a vote of the legislative body. The Board discussed the intent and need for several items in the draft regulation. There being no public opposition, Landy moved, Gray seconded and the Board approved the amendment.

3. Amendments to the Floodplain Overlay District, Land Use Ordinance Article IV, Section 127-15 as required by the Federal Emergency Management Agency to allow the town to remain in the National Flood Insurance Program.

The Board reviewed the amendment and decided it was acceptable without further revision. Pini moved, Haynes seconded and the Board voted to accept the amendment for the official ballot.

1. Amendment to Land Use Ordinance Article III, Section 127-8A, General Uses, allowing livestock to be kept for non-commercial purposes on parcels of one or more acres in Rural District.

3. Amendment to Land Use Ordinance Article III, Section 127- 16.2, Wireless Communication Facility Ordinance and Overlay District, clarifying the definition of “wireless communications facilities” by adding ‘licensed transmission or reception of radio or television signals’ to the definition.

5. Amendment to Land Use Ordinance Article IX, Section 127-42 E. Variances, Mandatory Findings to substitute new Mandatory Findings for Variances that differentiate between Use and Area Variances, as determined by case law.