Town of Fitzwilliam, NH - Planning Board Minutes 05/02/06

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.

Mr. JR Davis, representing Raman Patel, gave a brief history of the case, noting his client and Mr. Taylor had agreed to hold another hearing when the legality of the April 4, 2006 hearing on this matter was questioned on noticing grounds. All abutters were noticed for this hearing.

Mr. Davis requested that the Planning Board approve the site plan, as approved at the April 4, 2006 meeting, with the same conditions. He distributed a memo of the conditions. Comparing the memo with the notice of decision, Landy asked that a phrase, “now, and in the future,” that was dropped in the memo regarding gasoline tanks be reinstated. Mr. Davis agreed to reinstate the phrase, but said it wasn’t necessary because if gas tanks were planned in the future they would have to come before the Board at that time.

Mr. Little, attorney for Richard Dwinell, abutter, observed that no bond had been established to insure the conditions were met. He said Mr. Patel should have given the Board an estimate of the cost to meet the conditions and bond it.

He noted that there are three motions to rehear pending before the ZBA and said his client intended to go to Superior Court if necessary, pending the outcome of the ZBA meeting. He raised the issue of the traffic study, which he described as being faulty. He suggested a town engineer or expert review the study and advise the Board, saying it should be peer reviewed. The weekend chosen to study the traffic was problematic he said, because there were climatic events that may have had an impact on the study, adding that there had been no attempt to correlate the data with similar days in other years.

The hours of use are significantly different from current store hours and Mr. Little proposes that they should be curtailed, especially since the proposed store is located in the rural district. He emphasized that the underlying district ordinances should be considered.

Silverman responded regarding the bond, that the conditions were not money issues, but would be enforced by the Town Code Enforcement Officer. He said neither future ZBA decisions nor the fact that the case may go to court have any bearing on the Board’s work tonight. The proposed hours of operation are already a compromise with Mr. Patel.

Silverman asked the abutters what they saw this property being used as in the future. Mrs. McLaughlin responded that an antique store was OK, adding that the Planning Board should consider the safety of her house and her children. She said if there was security for the store, her home needed it too. Mr. Niemala referred to RSA 674:17, Purposes of Zoning Ordinances, and questioned if the Board was considering the issues of traffic, health and welfare of community, and continued reading the list. He thought abutters should be able to see the plans to determine if the parking met the town requirements. Mr. Dwinell raised the issue of the apartment, noting that an apartment/business use was not allowed in the rural district. He said he had affidavits that attested to the fact that there was no apartment in the building when zoning was enacted. He wanted the issue resolved prior to the sale of the building.

Silverman noted that the site plan before the Board does not include an apartment. Landy noted that if Mr. Patel wants an apartment in the building in the future, he will have to appeal to the ZBA for it. Mrs. Coburn said she thought the Board said they could live in the apartment. Silverman reiterated that the application before the Board for a convenience store does not include an apartment.

Mr. Hunter was concerned about gas pumps in the future. Silverman noted that one of the conditions of approval prohibits gas pumps now and in the future. Mr. Hunter said the Mr. Mike’s turns off its exterior lights after closing, but Mr. Dwinell has a light on all night. He would like the new store, and Mr. Dwinell’s, to turn lights off after closing.

Mr. McLaughlin said he thought closing at 11 PM was ridiculous. Silverman noted that the proposed hours are now 7AM to 10PM, adding that was a compromise Mr. Patel agreed to. Mr. McLaughlin asked why the Board was not taking abutters concerns into consideration. Silverman said he understood the abutters concerns but this kind of change is a fact of life, adding the Planning Board is operating under certain legal restrictions following the ZBA decision.

Diane, a woman who works at Bottom’s Up, Mr. Dwinell’s store, asked how many employees the proposed store would employ from the town. The Board did not think that was relevant. Mrs. Coburn said she thought that since the parking lot is very dark now, the new owners may want to increase lighting. Silverman noted that if they want more lighting they must come back to the Planning Board, and there are creative lighting solutions that reduce light pollution. He assured her the Board takes this issue very seriously.

An unidentified woman asked if there was any direction in Fitzwilliam that can insure that better things come into town. She said she moved here because it was a pretty town. Mr. Niemala talked about noise pollution, saying their area is already very noisy and he thinks it will get worse.

Pini said, for the benefit of those who had not followed the case since the beginning, the Board sent Mr. Patel to the ZBA for a special exception because the Board thought the proposed use may be an expansion of a nonconforming use. The ZBA did not find it so and their ruling has now tied the hands of the Planning Board. The Board can now only try to make this the best project possible. Unless the ZBA agrees to rehear the case, all the Planning Board can do is restrict certain conditions.

Mr. McLaughlin said they were abutters and taxpayers. Pini said that if the Board makes restrictions that will not hold up in court then it will cost the town money. Mrs. McLaughlin asked if the Board could hold up on making a decision until she can get her house appraised to determine if the store will affect its value. She wanted the town to pick up the costs of her home and move her to a safer neighborhood. She said she would hold the Board personally responsible if anything happened to her children.

Mr. Little said in his opinion the Board could further limit the hours of operation, adding that the proposed hours are so excessive as to substantially expand the nonconforming use. Mr. Dwinell questioned the traffic study and asked for an independent study, and suggested the study be done on Memorial Day weekend. He added that he refused to sell his store to Mr. Patel two years ago when he was approached.

Grasewicz, who conducted the traffic study for Mr. Patel, said the volume of traffic used, while based on a couple of days in February, was mathematically extrapolated to the anticipated peak of summer 2006 traffic. The study is still under review by DOT to evaluate whether the traffic volume will impact level of service and if mitigation measures are needed. Mr. Davis added that one of the conditions of approval is that a permit be obtained from DOT.

Mr. Little asked if further public hearings were planned to address the conditions. Silverman said that when the DOT review is complete and if they raise major issues, the matter will come back to the Board. Grasewicz responded that DOT could recommend anything that may need to be addressed before the store opens. The Board will decide and would do it in a public hearing. Mr. Davis said he didn’t know if DOT would require any changes but if they do the matter would come before the Board.

Mr. Davis said the decision to approve does not need to be postponed. He thought that for an abutter to ask to postpone the decision to gather more evidence was wrong – there has been plenty of time to do any studies.

Mrs. McLaughlin asked who pays for any modification of a road. Silverman noted it is a state road and the town does not have jurisdiction. Mr. Niemala said he thought a traffic light was needed at that point. Silverman disagreed, saying a traffic light on Route 12 will clump all traffic, which would be disastrous, but added that this is a state road and ‘not our call.’ He added that this was not a destination store, that it wouldn’t increase traffic on Route 12. Mr. Dwinell said 90% of his business is from out-of-state. Mrs. Coburn said that if Mr. Patel stays open three hours longer than other stores in town then it will be a destination store for MA customers. An unidentified woman asked why the proposed store doesn’t have to close the same time as the others. Silverman replied that the Board did not impose hours on the other stores.

An unidentified man asked if Mr. Patel would consider closing earlier. Mr. Davis said the proposed hours are reasonable and there is nothing to stop other stores from staying open later. He noted these hours of operation are less than at other stores Mr. Patel owns.

Pini asked if Mr. Patel would consider closing at 9PM on week nights and staying open until 11PM on weekends. Mr. Davis said that it is important to have consistent hours throughout the week. He conferred with M. Patel.

Mr. Dwinell asked if the Board could hold off on making a decision until the case goes to the Superior Court. Silverman noted there needs to be a decision to appeal. Mrs. Coburn asked if the votes could be recorded individually. Silverman said the Board tries to come to consensus before voting. Pini said a roll call vote is called for under specific instances but is not called for in this case.

Mr. Davis said that Mr. Patel will close at 9PM Sunday through Thursday and stay open until 11PM on Friday and Saturday, if the Board agrees. Silverman asked abutters if that helped and some agreed it did. Silverman asked abutters to note that this is their new neighbor granting these compromises, saying he wants to be a good neighbor. Mr. Niemala and Mr. and Mrs. McLaughlin responded that they didn’t want the store there at all. Pini asked if they’d rather have the store open until 10 PM every night. There was a mixed response. She asked the applicant which he preferred and he answered til 9PM on weekdays and 11PM on weekends. The conditions will be amended.

Pini asked if there was any other landscaping the abutters wanted, besides the 6 foot fence already conditioned. Abutters moved to the table to view the plans. Mrs. Coburn wanted the driveway moved so lights of exiting cars don’t shine into her living room. Silverman noted the driveway entrance was under state authority.

Pini asked if there were any lighting changes abutters wanted. There were several suggestions, but Mr. Davis suggested that right from the beginning Mr. Patel has wanted parking lot lighting but has not requested it because he thought the neighbors would object. He said they would like to go forward with conditions as they are now, but if they find it necessary to increase lighting for security reasons they will come to the Planning Board. Mrs. Coburn said she thought additional lighting would be necessary because the dark lot invites criminals.

Mr. Hunter asked if they could ask for fences and urged abutters ask for what they want now. Silverman noted the Board is trying to make neighboring houses less visible with the fence on the plans. Mrs. McLaughlin said again that she was holding the Board personally responsible if something happens to her children.

Someone suggested that the adjoining lot to the south could be developed as a strip mall if this project is approved. Silverman noted that was incorrect. That lot is in the rural district, has no business or building on it at present, and the traffic study ascertained that the driveway it would use is unsafe for business use.

The unidentified woman asked what happened if Mr. Patel didn’t follow the plan. Silverman noted the Board of Selectmen has enforcement authority and the ability to levy fines, in addition to the Planning Board’s authority to take an owner in violation to court.

1. Site Plan subject to all matters as shown on the Site Plan prepared by Paul Grasewicz dated 12/19/05, revised 1/17/06 and 3/4/06 being substantially completed at the premises previous to operation of the convenience store.

9. The existing apartment will not be used as an apartment once the convenience store commences operation, provided the applicant may seek modification of the these conditions in the future to use the apartment as a residence; and if the applicant, at the time that the convenience store commences operation, has an application or request relative to the continued use of the apartment as a residence pending before the Planning Board or other Fitzwilliam municipal board, then the existing apartment may continue to be used as a residence until either the final approval or denial is issued by all applicable boards;

Mr. Holombo presented revised plans with additional interior and exterior details. He has reduced the number of offices to two, in order to give each office two access/egress points. Haynes asked where the rest rooms were to be located and he indicated the area. Silverman suggested the rest rooms be placed back to back for plumbing purposes. Board members suggested his original placement of the oil tank on the north side of the building may be problematic as it is next to the dumpster and may interfere with trash removal. He will reposition the tank inside the utility room. The heating may be from hanging duct work. Landy asked about vegetative screening of the parking lot from Route 12 traffic. Mr. Holombo agreed to add shrubs.

There are two street lights on the property, one on the right-of-way to Mr. Mike’s and one on the opposite side of the parking lot, which is currently shielded from view by a trailer that will be moved from the property. Mr. Holombo does not anticipate night hours of operation. Silverman asked if exterior lighting could be on sensors so it goes out after closing. He agreed.

Mr. Holombo has decided on two exterior signs on the building, one over each office door with lighting from above, and one free standing sign to indicate the location of the office park.

Pini clarified that Mr. Holombo intends to double the size of the current building, the parking lot will be paved, the trailer will be removed, and the drainage issues will be resolved. Mr. Holombo said drainage and septic plans have been submitted to the state. Board members wanted to know where the water goes from the catch basin.

Silverman suggested Mr. Holombo engage an engineer to design the heating system, finalize plans for the oil tanks and that he contact the fire marshal for final approval. It seems the square footage of the space will not require a sprinkler system.

Mr. Filipi and Mr. Sheldon, attorney, brought a final draft of the letter of credit that serves as a performance bond for the construction of the subdivision road. It has been reviewed by Gary Kinyon, acting as town attorney. The controlling authority will be the Board of Selectmen.

Mr. Sheldon said Mr. Filipi was concerned about timing of the final top coat of asphalt. He expects it will be finished next spring but the letter of credit has a two year expiration. Mr. Parker, Selectmen’s representative, said once the Road Agent, in consultation with the project engineer, per the conditions of Planning Board site plan approval, signs off on the road, partial funds can be released, with the rest released when the top coat is completed.

Site Plans: Regarding questions about the Board’s site plan review of lots in the Spicer division, Silverman told the Board research has indicated that the Planning Board does not have the authority to conduct formal site plan reviews for single family residences. State statutes give the Board authority to conduct site plan reviews for commercial and multifamily properties.

Pini said she recalled the applicant agreed to site plans for individual lots as a condition of approval for the subdivision. Silverman agreed but said it was unenforceable. He said the Board was concerned with steep slopes and buffer zones and should have called it such. The Board needs to develop correct verbiage for this. Grasewicz agreed it is a language issue and needs to be spelled out in detail on the plans or it is not enforceable. Silverman said the Board would develop a way to better express their intentions.

Mr. Parker had talked with Mr. Walters, an abutter, about the Bessette property and enforcement of site plans, and told him the town will not enforce site plans for single family residences.

Signs: Mr. Parker said the Selectmen have charged the Code Enforcement Office with surveying signs at the four convenience stores in town, the Depot, Stateline, Mr. Mikes, and Bottom’s Up. He wondered if some of the signage was grandfathered. He asked the Board for help in interpreting the sign ordinance and understanding their intention regarding signage.

Building Permits: The Selectmen have rescinded on building permit for a nonconforming property on Laurel Lake. The original structure was demolished and apparently the property is now unbuildable since there has been no building on the property for one year.

Regarding the Berg case requesting a building permit on a Class VI road, the Selectmen will issue a building permit, on the advice of legal counsel Bernie Waugh, because the lot in question was part of an approved subdivision, which failed years ago. Many of the original lots have been merged and are now in conservation easements of one kind or another. The Bergs will have to upgrade the Class VI road. Mr. Parker said Mr. Waugh recommended revoking subdivision approval to prevent anyone else from coming in. Grasewicz said all the other lots are gone now. This is the only lot left on a Class VI road.

Silverman moved, Pini seconded and the Board approved a motion to go into non-public session to discuss a legal matter regarding radio towers with Mr. Parker. The minutes will be sealed.