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ZBA Meeting Minutes 06/16/03
Zoning Board of Adjustment
Meeting Minutes
June 16, 2003


Members present:  Michael A. Methe; Chairman, Daniel Baker; Clerk, Jane Roberts and Gerald Neiman
Members absent:  Edwin Mattson and Coni Porter
Selectmen present:  Susan S. Silverman

Chairman Methe opened the meeting at 7:35 p.m. Mr. Methe noted that there were four members present tonight and Selectman Susan Silverman said that she could vote as an ex-officio member. Mr. Methe asked if she was sure about this and she said that she was.   


Public Hearings

7:35 p.m.       Case #03-06:  Fitzwilliam Historical Society requests a Special Exception from Article III: Section 127-19 (F) to construct a 24’ x 24’ addition at the West side of the existing Blake House Museum. The addition would encroach into the required 50’ setback from Richmond Road. This property is known as Tax Map 32; Lot 10 and is in the Residential District. – Chairman Methe opened the public hearing at 7:35 p.m. and read the case title aloud.
        Nancy Estle and Robert Corrette were present on behalf of the Fitzwilliam Historical Society. Nancy Estle introduced herself and told the Board that she is the Secretary for the Fitzwilliam Historical Society and she is heading up the committee that is exploring the possibility of putting this addition onto the Blake House. Ms. Estle said that the main purpose for this addition is to have a restroom, and she noted that there has never been water there. Ms. Estle said that it is something that is becoming a necessity and it would be a great convenience to have facilities for the volunteers who work at the museum.
        Ms. Estle explained that they have determined that in order to build the addition, of which part of it would replace the existing 12’x 25’ shed that sits at the back of the Blake House, they would be encroaching into the 50’ setback to Richmond Road. A survey has been completed and Ms. Estle reviewed this with the Board, indicating where the edge of the pavement is and where the deed lines are to the best of the surveyors’ ability. There is a line on the plan that indicates where the Ashuelot Turnpike was laid out according to an 1836 map. Ms. Estle said that Mr. Corrette has said that this reverted to the Town. Mrs. Roberts asked how close the building would be to the actual road, and Ms. Estle said that the plan shows it to be approximately 15’ to 18’, and she noted that it is not significantly different from the corner of the existing shed. Mr. Baker noted the scale on the plan and said that it could actually be a good 20’. Ms. Estle explained that in researching this property, the surveyor came across a map from 1836 which showed the Ashuelot Turnpike, and because it was of historical nature, he indicated this on the survey. Mr. Corrette said that if you look at the old map of the Ashuelot Turnpike he believes you would find that most of the houses now do not meet it, as they would be in the road. Selectman Susan Silverman asked if this was a turnpike that was never constructed and Mr. Corrette said that the turnpike was constructed in 1807, met its obligations in 1826, and probably went back and reverted to the Town in the 1830’s. Mr. Corrette added that when they laid out a lot of the turnpike roads, they were 66’.
        Mr. Baker clarified that this addition would allow water in the building and Ms. Estle explained that a restroom is planned to be in the addition, and they would hook up to Town water. Ms. Estle also explained that the exiting shed is leaking, and this poses a threat to the items that are stored in it, including the wagon, sleigh, fire pumper and mail cart. These items would be put into the new addition. In addition to providing a safe place for these items, water and a rest room, the second story of the new addition would have a climate controlled space for archives to be housed, and work space, which would allow two existing rooms on the second floor to be opened up for display again. Mr. Baker confirmed that this is a two story building, and asked about a septic system. Ms. Estle said that she has spoken with Carl Hagstrom about this and he feels that a holding tank would be adequate since there would be a minimal amount of water usage. Ms. Estle added that they are hopeful that the State would approve this and they have not gotten to the point of applying for this as they are taking this project one step at a time. Mr. Corrette added that if they do not get approval for this application, there is no sense in going on and on with this to no avail.
Ms. Estle told the Board that she met with the Historic District Commission about this proposed addition and they have obtained aesthetic approval from them. Mrs. Roberts asked what is wrong with not having these facilities, and noted that there is an electric toilet there and that there is nothing wrong with it. Mr. Corrette said that he thinks the majority of the problem with the electric toilet is that people do not know how to operate it and there may be a fear of it. Ms. Estle added that the availability of water in the building is important and noted that it would be nice to be able to keep the building clean without people having to haul water from their homes, and it would be nice to have facilities for their volunteers who spend a lot of hours there through the course of a week. Mr. Neiman asked if she could describe the surrounding buildings and the situation on the immediate neighbors. Ms. Estle pointed out that Betty Henry is right next door and there is 10’ between their property lines. Mr. Neiman clarified that that the building itself is South of Blake House and the distance between the two buildings is 6’. Ms. Estle said that was correct and the Henry house comes right to the property line itself. West of the Blake House is what used to be called the Stone’s Throw, and is now owned by Jess Scheer. There is approximately 20’ – 25’ to the steps of that house. Mr. Neiman asked about the existing shed and Ms. Estle said that it would come down as it is in poor condition and the roof leaks. The distance of the shed as it exists now is within the setback requirements, but they are seeking to extend this some. Ms. Estle said that another plus that would be achieved is that a wheelchair would be able to enter the building through the addition and at least be able to visit the first floor. Mr. Neiman clarified that it is not wheelchair accessible right now and Ms. Estle said that was correct. Mr. Neiman said that Ms. Estle had spoken a lot about the desire and need to have a restroom, and asked if there is a reason why they could not add one to the existing Blake House. Ms. Estle said that she could not think of a good spot within the building for it. Mr. Corrette said that it may be possible if they changed the lines of the house and Ms. Estle explained to the Board that the new entrance from the addition into the Blake House would utilize an existing door, so they are not going to be doing a lot of cutting into the existing building.
Chairman Methe asked the Board if there were any further questions. There were none. Chairman Methe said that he had a concern, and noted that there is an explicit law on the books that states that no one can grant permission to anyone to put something in the Towns’ right of way, and then he spoke of the road and if it were assumed to be a 2-rod road, then it would be 33’ from the center line. Mrs. Silverman said that there really is not a center line for many of the roads in town because they are not laid out; however, there is a travel portion. Ms. Estle questioned how they would define the right of way and Mr. Baker pointed out on the plan that the road is 66’, the highway side line is shown, and it shows that there is a little more than a foot to the side line. Chairman Methe noted that it is within a foot so it is okay. Mr. Corrette added that it may have been laid out as a 4-rod road but it has not been maintained as such, and you have to go with how it has been maintained. Chairman Methe asked for any further questions or comments. Mrs. Silverman said that she would suggest making this conditional on obtaining State approval for the septic system.
Chairman Methe closed the public hearing at 7:55 p.m. and the Board reviewed the mandatory criteria. The proposed use:

1.  Is in harmony with the purpose and intent of this chapter.  
The Board members unanimously agreed that this proposal is in harmony with the purpose and intent of this chapter, and Mr. Neiman noted that the general provisions of Fitzwilliam’s land usage code are meant to promote and conserve the health and welfare of the inhabitants of the town, to facilitate adequate provisions for sewer disposal, to conserve the value of land and buildings; including the preservation of natural resources, to avoid undue concentration of population and to encourage the most appropriate use of the land, and with this being the Village District, a historic area where the buildings are very compact, he would agree that this application is in harmony with the purpose and intent of this chapter. Mrs. Silverman said that she may feel differently if it was a household, but it is essentially a museum.

2.  Will not be detrimental or injurious to the neighborhood in which it is to take place.
The Board voted unanimously that the proposal would not be detrimental or injurious to the neighborhood with Mr. Neiman noting that as he pointed out before, the neighborhood is very compact and the neighboring buildings all seem to encroach the property lines as this would. Furthermore, they would be correcting a dilapidated shed which is in the neighborhood and certainly not injurious but could rather be a safety issue.  

3.  Is appropriate for the site in question.
The Board voted unanimously that this proposal is appropriate for the site in question and it fits nicely in the Historic District.

4.  Complies with all applicable requirements of this chapter.
The Board voted unanimously that this proposal complies with all applicable requirements of this chapter.

5.  With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome.  Mr. Neiman noted that it appears that the applicant would not be able to do anything on this property in terms of renovations without impacting dimensional requirements, therefore he feels that a burden exists. The Board agreed unanimously that a burden exists.

Daniel Baker moved to accept this application and approve it with the stipulation that it meets the requirements set by the State for a septic design. Jane Roberts stated that she has been on this Board for a year and a half and this is the most complete amount of information she has seen, and she congratulated Ms. Estle on this. Gerald Neiman seconded the motion. A unanimous vote in favor of the motion was taken.
        

7:55 p.m.       Case #03-07:  Ronnie Nickerson requests a Special Exception under Article III: Section 127-9 (D) to allow a dwelling conversion (in-law apartment) at his residence located at 86 Old Troy Road. This property is known as Tax Map 9; Lot 10 and is located in the Rural District. –  Chairman Methe opened this public hearing at 7:59 p.m. and read the case title aloud.
Chairman Methe asked Mr. Nickerson to tell the Board what he wanted to do. Mr. Nickerson told the Board that he wanted to make an in-law apartment for his mother since his father has passed away and she wanted to move in with him, but she wanted to have some facilities of her own. Mr. Nickerson said that his house has 3,700 sq. ft. so it is certainly big enough, and he noted that there is a duplex directly across the street from him and down the road they are building apartments so he does not see this as a conflict with anything in the area. Mr. Nickerson said that there would be no visual difference externally, it would be internally and there are existing apartment facilities already in the house. Chairman Methe noted that there is drawing attached to the application. Mr. Nickerson added that previous to this, this was one large room and he made it into three rooms. The bathroom was already there. Mr. Baker asked what the square footage of the apartment was. Mr. Nickerson estimated the size of each room and it was determined that the square footage was approximately 660 sq. ft. Mr. Baker questioned what the limitation was as to the size of an in-law apartment as he thought there were limitations on this.
Mrs. Silverman said that one of her concerns with this is that when the applicant was given the building permit, it was issued with the understanding that there would not be a kitchen. Mr. Nickerson said that he specifically asked what would constitute the kitchen and he was told a sink. Mrs. Silverman continued and said that the understanding  was that this would never become a separate apartment, and when the Occupancy Permit was issued there was not a kitchen in there, and it was clearly put in afterward. Mr. Nickerson stated that everything except the kitchen sink was there when he obtained the Occupancy Permit, including the stove and refrigerator. Mr. Nickerson said that he used the original plan to get the building permit and said that he would not put a sink in, because he specifically asked about this. Mrs. Silverman said that there is a sink there now and Mr. Nickerson said that it was just recently put in and it can be taken out, and it was not there when he obtained the Occupancy Permit. Mrs. Silverman told the Board that she wanted them to know the history of this and explained that Mr. Nickerson knew that the understanding was that if he wanted a separate apartment, he had to come before this Board, and he did not want to do that. She added that the Occupancy Permit was signed off on because Mr. Nickerson said that there would not be a kitchen, which was a condition of the permit, and this was clearly put in after the fact.
Chairman Methe read aloud information from the Building Permit file which indicated that on April 24, 2002, Mr. Nickerson spoke with the Board of Selectmen and Mr. Terry Silverman and it was determined that since Mr. Nickerson was not adding a kitchen, it did not constitute an apartment, and the building permit could be issued. Mr. Methe said that the building permit was issued based on this information. Mr. Nickerson said that this is why he is petitioning; to get that changed. Mr. Methe said that it sounds like this is already done. Mrs. Silverman said “yes”, and Mr. Nickerson said “partially”, and added that he was told that the stove was okay, and they told him specifically, word for word that the only exception would be the sink. Mr. Nickerson added that when the inspection for the Occupancy Permit was done, he was told that the rest of these things did not constitute a kitchen. Chairman Methe then read the notes from December 11, 2002 which state, “sink only, not for kitchen”, and said that this is the opposite of what Mr. Nickerson is saying. Mr. Nickerson said that they told him that he could not have the sink and everything else was okay. Mr. Methe said that he is just reading what the notes say.
Mrs. Silverman said that the concern is that the process was not followed from the beginning. Mr. Nickerson stated that the duplex across the street has not been processed at all and there are two apartments in there and there was never any notice provided to the abutters and this was a couple of years ago. Mrs. Roberts said that she has a problem with obtaining a permit to do one thing and then doing something different. Chairman Methe asked Mr. Nickerson if he had anything to add. Mr. Nickerson said that he agrees that he did put the sink in for his mother and he put it in under pressure, but he did intend to pursue this process. Mrs. Silverman told Mr. Nickerson that he was made aware that if he had gone through the process then, he could have come here and done this correctly. Mr. Nickerson said that he was told that it would be a 3 to 4 month process. Mrs. Silverman and Chairman Methe both stated that this Board meets every month if there are applications, and they have to hear an application within a certain time frame. Mrs. Silverman said that she is simply saying that the applicant was aware of the process and had the option of coming here and doing this apartment legitimately, and she believes that part of the concern was that this exact thing would happen. Mrs. Silverman said that everyone needs to go through the process officially. Mrs. Roberts noted that this has been going on since April 2002; 15 months. Mr. Neiman asked what zone this property is in and Chairman Methe said that it is in the Rural district. Mr. Neiman noted that this is a single family house seeking a Special Exception to allow an apartment. Mr. Baker noted that it is an in-law apartment and it should have dimensional requirements, it can be only a certain number of square feet. The Board looked in the Land Use regulations for this information and determined that under Section 127-9 B. a single family dwelling in existence before April 1, 1987 may have an apartment provided that one of the dwellings is no larger that 800 sq. ft., and that one of the dwellings is owner occupied. Mr. Baker clarified that Mr. Nickerson resided there. Mrs. Silverman asked Mr. Nickerson if he intended to stay there and Mr. Nickerson said that he would not put all that money into it for his mother if he were going to leave.
Mr. Baker questioned what they were issuing an exception for and Mr. Neiman said that he had a few questions to ask that may assist them with this question. Mr. Neiman noted that they have a drawing showing the floor plan of the in-law apartment and the dimensions, and asked what the dimensions of the main dwelling are. Mr. Nickerson said that he has in excess of 3,500 sq. ft., and the building is the same width; 22’ to 23’, and is 48’ long. Chairman Methe clarified that this apartment is one floor. Mrs. Silverman said that this is an after the fact Special Exception for what should have come in a year ago. Mr. Neiman clarified that Code Enforcement is up to the Board of Selectmen. Mrs. Silverman said that was correct but it was their understanding that when they issued the Occupancy Permit there was no kitchen, and there was an understanding with the property owner. Mr. Neiman questioned the type of permit and Mrs. Silverman said it was an Occupancy Permit for the apartment. Mr. Baker said that his question is really that in reading the Article, Section 127-9 B. Single-family with an apartment, was changed a few years ago and didn’t require a Special Exception, but in reading the current 127-9 B. of the Land Use Regulations, which he read aloud, he is questioning if they need to permit the use. Mr. Neiman referred the Board to the Table of Principal Uses and noted that a Single-family dwelling with apartment in the Rural District requires a Special Exception. Mr. Baker said that he understands that but the regulation doesn’t state that. Mr. Neiman said that it is just defining residential uses. Mr. Baker said that he thought that if it was under a certain amount of square footage that it was automatically qualified, but now he understands.
Mr. Neiman stated that the Board of Selectmen have enforcement powers if they choose to use them; they could require removal of structures that do not fit within the code or are not permitted by appropriate regulatory Boards, and the fact that someone comes before this Board after the fact is not to be encouraged, it is not up to this Board to enforce. Mrs. Silverman said that they are not being asked to do that and Mr. Neiman said he understands that but they keep saying that this is after the fact and he is simply saying that enforcement is not their domain and it is up to the Board of Selectmen as to whether or not they want to enforce this. Mrs. Silverman noted that the applicant is here because he wants the Special Exception. Mr. Methe noted that a similar case was heard a few years ago and as NHMA said, everyone should be entitled to a hearing and due process, and that is what this is. Mr. Baker added that despite the circumstances that brings it here, they have to hear it on its’ own merits.
Mr. Bruce Potter, an abutter in this case said that in defense of the applicant, he knows the history of this building as he used to live there, and this is not an addition to the building. It used to be a carriage shed that now has a window and a door, and there have been no changes made to the footprint of the building. Mr. Potter said that he is trying to clarify that this was an existing building, attached to the house, and it used to be a carriage shed, and then it was a slaughter house, and then a summer home, etc. It has a long history. Mr. Methe said that he does not think that is the question. Mr. Potter said that they are talking about square footage and a sink, which he feels is a petty thing. Mrs. Silverman told Mr. Potter that he misunderstood what was said, and that this particular case could be brought in compliance by no longer having a kitchen. Mr. Nickerson said that he put the sink in because of pressure from his mother and he knew that he had to submit this and he intended to do this, but didn’t. Mr. Nickerson said that the sink went in quite a while after it was finished. Chairman Methe reviewed the Building Permit log again and noted the last entry date was for December 2, 2002 and is states that there was a sink only, not a full kitchen. Mr. Nickerson said that the sink was not there, and he thinks that this was written backwards. Mr. Methe asked if there were any further questions. Mr. Neiman asked about the notes that Mr. Methe read and Mr. Methe said that they were written by the Code Enforcement Officer and there are clerical notes. Mr. Neiman reviewed the history of events for this case and noted that in April 2002 Mr. Nickerson sought a building permit and was referred to the Planning Board. Mr. Nickerson saw the Planning Board in April 2002 and was referred to the Zoning Board of Adjustment for a Special Exception for an apartment use. Mr. Nickerson said that the second plan he submitted for the building permit was exactly the same as the one before them, without the sink. Mr. Nickerson said that the sink constituted the kitchen. Mr. Neiman clarified that Mr. Nickerson was told that he needed the Special Exception to add the sink to make this an apartment. Mrs. Silverman said that the kitchen makes it a separate living unit, without a kitchen it is not a separate apartment. Mr. Nickerson added that there is not a separate entrance to this apartment and they have to come in through the main house. Mr. Neiman asked when the renovations were started. Mr. Nickerson said that there have been changes over the years and when he purchased the house there was a kerosene stove in there. Mr. Neiman asked Mr. Nickerson to repeat the characteristics of the neighborhood. Mr. Nickerson spoke of the duplex with two separate apartments and two separate driveways across the street from him, and then the next house on his side of the road; 600’ to 700’ away where they are building apartments.
Mr. Baker asked Mr. Nickerson if he came here voluntarily. Mr. Nickerson said yes. Chairman Methe said that the way he understands this, an appraiser discovered this and the Selectman’s Office sent him here, so Mr. Nickerson did not walk in here on his own. Mr. Nickerson said that was correct. With there being no further questions, the public hearing was closed at 8:28 p.m.
Chairman Methe asked for comments from the Board. Mr. Baker stated that he is generally in favor of a proposal like this and it is a great thing to do having a relative come to live with you, but he also supports the process. Mr. Neiman said that he thinks that the character of the neighborhood is important with regards to changes in the neighborhood, and the proposal sounds like it is a minimal change to what previously existed, and he does not see this as a major departure from the zoning ordinances. Mrs. Roberts stated that she also does not have a problem with an in-law apartment, but rather with the way this was done. Mr. Neiman said that he agreed entirely with Mrs. Roberts’ statement, however, as he said before, enforcement is up to the Board of Selectmen, not the Board of Adjustment, and if they choose to take the position to not accept unpermitted building in town, then they have the ability to enforce that. Chairman Methe agreed with the Board members and noted that enforcement would only come into the picture if this application was denied. Mrs. Silverman said that the only reason this came to their attention was because an appraiser discovered it. If that had not happened, then this would have gone on and on.  

The Board reviewed the mandatory criteria next. The proposed use:

1.)  Is in harmony with the purpose and intent of this chapter.

Mr. Neiman stated that he feels this is in harmony with the purpose and intent of this chapter and noted that it fosters appropriate use of the land and it is in conservation as they are making use of an existing building by adding an in-law apartment, which appears to be a minimal change in the structure, and a very minor change in the use is being sought. Mr. Methe agreed and said that he thinks this is in harmony, despite this being an after the fact application, and he noted that everyone is entitled to a public hearing, and each case has to be heard and based on its’ own merits. Mrs. Silverman said that this is in keeping with the purpose and intent of the chapter, and noted that the process is flawed and enforcement is an issue. There were four votes in favor of this proposal being in harmony and one vote against it being in harmony.

2.)  Will not be detrimental or injurious to the neighborhood in which it is to take place.
The Board agreed unanimously that this would not harm the neighborhood and Mr. Neiman noted that this is within the same footprint and they have heard testimony that there are similar structures within the neighborhood.

3.)  Is appropriate for the site in question.
The Board agreed unanimously that this is appropriate for the site in question.


4.)  Complies with all applicable requirements of this chapter.
Mr. Baker agreed that this complies and noted that this is allowed by Special Exception and it meets the square footage requirements. Mr. Neiman agreed also and said that he did not hear anything indicating that it does not comply, other than the requirement for a Special Exception. Mr. Methe voted that this does not comply and said that he feels this way because it is after the fact, and one of the requirements of this chapter is to obtain a Special Exception for the use before you start. Mrs. Silverman stated that she agrees with Mr. Methe. The vote was three in favor that it complies with all applicable requirements of this chapter and two opposed.

5.)  With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome.
The Board agreed unanimously that this is not applicable in this case.

Gerald Neiman moved to approve the application for a Special Exception for Mr. Ronnie Nickerson. Daniel Baker seconded. A unanimous vote in favor of the motion was taken.  

Chairman Methe told Mr. Nickerson that his Special Exception is granted.

Mr. Methe told the Board that he would like to proceed with the fourth case scheduled for tonight at this time,8:28 p.m., and that the 8:15 p.m. case can be heard last this evening.


8:15 p.m.       Case #03-08:    Michael A. Methe requests a Special Exception under Article III: Section 127-19 (F) to construct a shed on his property at 318 Upper Troy Road while having less than the required 75’ front yard and 20’ side yard setback requirements. This property is known as Tax Map 15; Lot 22 and is located in the Rural District. – Mr. Methe recused himself from the Board and Mr. Baker agreed to chair this hearing. Mr. Baker opened the public hearing at 9:12 p.m. and read the case title aloud. Mr. Baker advised Mr. Methe that this application would be heard by less than a full Board and he had the option of continuing this to another date so that it could be heard by a full Board. Mr. Methe chose to proceed this evening.
 Mr. Methe explained to the Board that he would like to remove two existing sheds on his property; one is 5’ x 8’ and the other is 10’ x 12’, and put up a new shed closer to his house that he would be able to access year round. Mr. Methe brought in some photos showing various sections of his yard and he explained that the rear yard slopes downhill substantially; approximately 45’ in elevation. Mr. Methe explained that based on a 4-rod road, the shed should be 33’ from the center line and he actually has 36’ to the edge of the tar, but the location of where he wants to put the new shed would encroach into the side yard setback by 8’. Mr. Methe explained that the area he staked out is far enough away from the road and the house for him to be able to get through with his tractor, but it does not meet the side yard requirement. Mrs. Silverman asked about swinging it around a different way and Mr. Methe explained that the land  in the back, once it becomes flat, drops off, and then further down it drops off even more. There is only one area on his property that is flat enough for him to be able to go down with his tractor. Mr. Neiman clarified that Mr. Methe feels that he needs to move this away from the road to be in compliance with the road setback, and he needs to be a distance from the house and towards the side line in order to access the back of the property. Mr. Methe said this was correct.
Using the photos he brought, Mr. Methe explained where the 130’ long wall starts at the corner and then breaks for the set of steps, and then continues down and around the back side. Mr. Baker said that he understands this to be that Mr. Methe has the shed in a location so that he can still get down there with his tractor between the wall and the shed. Mr. Methe said that it is not just the wall, but also the steep part, as there is a swale that he built across the lawn to get rid of the water because they are having erosion. Mr. Methe pointed this area out in the photos and noted that they could see the rocks, and noted that it is a pretty steep area in there.
Mrs. Silverman asked what the structure would be used for. Mr. Methe said that it would be a storage shed and he made a rough drawing, not to scale. The shed would be clapboard exterior, painted the same colors as the house and there would be shutters and a double door on the front. The shed would be a salt box type, off-center roof and 8’ tall. There may also be electricity run into it. Mr. Methe said that the intent of this is to put things in it that are stored in another building that he cannot even get to in the winter time. Mrs. Silverman confirmed that Mr. Methe is saying that it is a hardship of the land in that he cannot meet the setback. Mr. Methe said that was correct.
Mr. Baker asked if there were any further questions from the Board, to which there were none. Mr. Baker closed the public hearing at 9:20 p.m. and the Board proceeded to reviewing the mandatory findings. The proposed use:

1.)   Is in harmony with the purpose and intent of this chapter.
The Board agreed unanimously that the proposal is in harmony with the purpose and intent of this chapter with Mr. Neiman noting that it keeps reasonable, compact neighborhoods.

2.)  Will not be detrimental or injurious to the neighborhood in which it is to take place.
Mr. Neiman stated that he feels this is an appropriate use of the lot given the limitations of the topography and would not be detrimental or injurious. The Board agreed unanimously that this proposal would not be detrimental or injurious.  

3.)  Is appropriate for the site in question.
The Board agreed unanimously that the proposal is appropriate for this site for the same reason as above in that it is an appropriate use of the lot given the limitations of the topography.

4.)  Complies with all applicable requirements of this chapter.
Mr. Neiman noted that Mr. Methe has made efforts to make sure that this proposal complies and Mrs. Silverman added with the exception of the side yard setback. The Board agreed unanimously that this proposal complies with all applicable requirements of this chapter.

5.)  With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome.
The Board agreed unanimously that they believe special conditions exist and noted that this is the reason that the applicant is before them.

Gerald Neiman moved to approve the application for Michael Methe for a Special Exception to construct a shed on his property. Jane Roberts seconded. A unanimous vote in favor of the motion was taken.  


8:30 p.m.       Case #03-09:  Peter Chong requests a Special Exception under Article III: Section 127-11 (G) to allow a combined business and dwelling at property located at 24 NH RT 12 South. This property is known as Tax Map 15; Lot 60-03 and is located in the General Business and Rural Districts. – Chairman Methe opened the public hearing at 8:38 p.m. and read the case title aloud. Mr. Peter Chong was present.
The Board first clarified that this parcel was in two districts and Mrs. Silverman said that she thought this was corrected and that zones were changed to go with lot lines. Chairman Methe said that this has not happened as of yet. Chairman Methe asked Mr. Chong to tell the Board what he plans to do. Mr. Chong told the Board that he and his wife are purchasing their first home in the United States and they would like to live in this building and put in a small kitchen, shower and have two bedrooms. The previous owner of this property took out the bath and shower, but the plumbing is there. Chairman Methe told the Board that to clarify this; he believes that Mr. Chong’s wife is a professional and would like to have an office upstairs, and they would like to have living quarters downstairs. It was noted that this property was last owned by Pregent’s and is the former clinic. Mrs. Silverman noted that there is a large parking area. The building is two stories with the downstairs being below ground level. Mr. Chong told the Board that if the Town permits he would like to build a kitchen, bath and bedroom upstairs, and he indicated that his wife does not anticipate having a lot of customers and she would see senior citizens mostly through her volunteer work.
Mrs. Silverman clarified that they are asking to make changes on the inside only and that there would be no changes to the outside. Mr. Chong said that was correct. Mr. Baker asked if this was a residence now and Mr. Methe told him it is not and it was an antiques store last. Mrs. Silverman said that it has always been a business and it was a clinic first which went through a Site Plan Review with the Planning Board. Mrs. Silverman noted that they usually do not allow residences in the business district although they recently approved a case with greenhouses and a residence. Mr. Methe said that this is a little different in that part of this property is in the Rural zone; however, the building is not in the Rural zone, it is in the General Business District. Mrs. Silverman noted that a dwelling in the General Business District requires a Special Exception. Mr. Neiman noted this and said that this is opposed to allowing a combined business and dwelling in the Rural District which is prohibited. Mrs. Silverman said that the applicant is not asking for that. Mr. Neiman noted that there is a conflict any way you look at it because the property is in both the Rural and General Business Districts and the allowed uses in these districts differ. Mrs. Silverman said that she understood this to be that the applicant is asking to change the use of the building itself. Several Board members questioned how to view this and it was agreed that the building is in the General Business District and it has always been a business. Mrs. Silverman mentioned the split zoning again and said that she thought this had been corrected years ago and then spoke of the zoning changes that were made many years ago, and Mr. Methe mentioned the problems they had with the South end of Rt. 12. Mr. Baker said that a lot is typically one or the other and just because your line doesn’t happen to include the building, there is still only one lot. Mr. Methe said that the Planning Board is updating the Master Plan and what he would recommend with regards to this is whichever zone the majority of the land is in would determine the zone for the lot.
Mrs. Silverman asked how long the building had been closed and if it has been more than a year. Mr. Methe said he believes it has been closed for close to two years or more. Mrs. Silverman thought that this should perhaps be addressed in this hearing. Chairman Methe asked if there were any further questions. Mr. Neiman asked how they were to interpret this and referred the Board to the Table of Principal Uses in the back of the Land Use Regulation manual; 127-11 Business Uses. Item G. Combined Business and Dwelling is allowed in the General Business District by Special Exception. Mr. Neiman then went to Principal Uses under 127-9 Residential Uses; and noted that Home Occupation/Business is not a permitted use in the General Business District. This is not consistent. Margo Best, Land Use Administrative Assistant told the Board that the Planning Board discussed this the night that they met with Mr. Chong and they think that when they revised the Home Business/Home Occupation section back in 2000 that there was an oversight. Margo noted that this is on their list of corrections to be made; however, they have to go by what this says until it is corrected. Mr. Neiman clarified that they could permit this under 127-11 G. if they choose, but they could not permit this under 127-9 F. Mr. Baker asked if this was just incorrectly coded. Mrs. Silverman said that it is what it is until it is corrected, and she added that the applicant was referred to them under 127-11 G. Mr. Neiman said that the Board also has to consider if they take a business property and allow a residential use, what happens if the business goes by the wayside; would there still be a residential use. Mrs. Silverman stated that conditions could be attached to decisions when they have concerns. Mr. Neiman said that he would not be in favor of taking the property out of the business use and added that there are very little commercial property uses available in town and this is a valuable commercial site, and he would hesitate to approve an application that would remove the business use from this site. Mrs. Silverman asked Mr. Neiman to read 127-11 G. aloud. Mrs. Silverman reiterated her comment earlier about conditions and said that she feels that this should be specific as to how this ends up. Mr. Neiman noted that contingencies become an enforcement issue.
Mr. Neiman said that he felt that they should put on the record exactly what else is in the neighborhood. Mr. Methe said that across the street, three of the five buildings in a close, approximate area, are mixed uses; residence and business, and he and Mrs. Silverman listed the following: Starretts building is residence and warehouse, the little building in between Kennedy’s which is residence, the Video Store which has a residence, the Chase house which is making mortar lawn ornaments and then Pete Pelkey’s property. Mr. Baker clarified for the future that this would not become just a residence in the future if the business use ended, and noted that if this was approved as a business and dwelling then there would always have to be a business use there as a residence only would not comply. The Board agreed with this. There was further discussion about what would happen to the property if it were sold in the future, and the Board made it clear that a business use would have to be there.
Mr. Baker asked Mr. Chong if he always plans to have a business there. Mr. Chong said yes. Mr. Baker explained to Mr. Chong that the zoning doesn’t allow a residence there, and the Board’s ruling would restrict this from becoming a residence only. Mr. Chong said that he and his wife love Fitzwilliam and they would not dishonor this Board or this town. They consider themselves honored to be in this town and they would keep the property clean and they would stay here and not leave the property. Mr. Methe asked Mr. Chong if they would use any of the main floor; the first floor, for living quarters. Mr. Chong said that they would like to; perhaps have a small kitchen and one bedroom on the top floor and then use the basement for a library, bathroom and another bedroom. Mr. Chong said that they are not going to try and use it for just a residence and they would not do that. Mr. Chong added that they could approve it so that it returns to 100% commercial if they leave.  Mr. Methe said that he thought this was important because if someone else came in later, they would know what their intention was for the building. Mrs. Silverman said that if this is determined to be a business zone, which is how it was developed and how it is now, then perhaps the condition could describe a minimum square footage or percentage of the structure would remain commercial. Mr. Methe asked Mr. Chong how much of the top floor his wife would use for her business; 50% perhaps. Mr. Chong said that 50% would be good for his wife. Mr. Methe suggested that 50% of the square footage of the main floor must remain as a business. With there being no further questions, the public hearing was closed at 9:05 p.m.

The Board reviewed the criteria next. The proposed use:

1.)  Is in harmony with the purpose and intent of this chapter.
The Board agreed unanimously that this is in harmony with the purpose and intent of this chapter and Mr. Neiman noted that this is a good use of the zone.

2.)  Will not be detrimental or injurious to the neighborhood in which it is to take place.
The Board agreed unanimously that this proposal would not be detrimental or injurious to the neighborhood.

3.)  Is appropriate for the site in question.
The Board agreed unanimously that the proposal is very much appropriate for this site.

4.)  Complies with all applicable requirements of this chapter.
The Board agreed unanimously that this proposal complies with all applicable requirements of this chapter.

5.)  With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome.
The Board agreed unanimously that this item is not applicable.

Gerald Neiman moved to approve Peter Chong’s application for a Special Exception with the stipulation that 50% of the main floor is to remain as an active business. Daniel Baker seconded. A unanimous vote in favor of the motion was taken.

Chairman Methe told Mr. Chong that he was all set. Mr. Chong clarified that 50% has to be used as a business. The Board said that was correct. Mr. Chong thanked the Board. Mrs. Silverman told Mr. Chong that he would need a building permit from the office next door before he could do any work inside. Mr. Methe told Mr. Chong that Margo would send him a Notice of Decision in the mail.      



Administrative Work
***     Review and approve May 12, 2003 Site Walk Minutes and May 12, 2003 Meeting Minutes – Mr. Neiman moved to accept both the meeting minutes and site walk minutes for May 12, 2003. Mrs. Roberts seconded. Mr. Baker abstained. A unanimous vote in favor of the motion was taken.


Board Business
***     Election of Officers - Postponed
***     Discuss increasing alternate members and meeting schedule – Chairman Methe told the Board that they need more members, and noted that Kerry Gagne has submitted a letter of resignation due to time constraints. They have four regular members and two alternate members. Edwin Mattson is unable to attend meetings on Monday nights and has not been present at a meeting for quite a while now. Margo noted that Coni Porter will be unable to attend Monday night meetings beginning in September. Mr. Baker added that they can seat one of the alternate members to fill the vacancy. Mr. Methe also suggested that they look at meeting on a different night since Mondays are a problem for several Board members. Mr. Methe said that they used to meet on Thursday’s and Mrs. Silverman said that there would be a problem during budget season. The second or fourth Tuesday were suggested, and it seems that the second Tuesday would be good for each member that was present. Margo told the Board that she was pretty sure this would work for Coni and Ed as well. Mr. Methe wanted to change the meeting night to the second Tuesday and Mrs. Silverman suggested that they check with the other Board members first. Additionally, Margo noted that the Board’s regulations state that amendments to the regulations are to be done at a public hearing. Mr. Methe said that they could incorporate any changes or corrections to the regulations at their next meeting. Mrs. Silverman told the Board that if they came up with any recommendations for appointing alternate members to let the Selectmen know.
        
Correspondence
***     Notice of Decision issued by the Planning Board (May) - Reviewed
***     Letter submitted by Joan McLaughlin - Reviewed
***     Letter submitted by Kerry Gagne - Reviewed

Chairman Methe moved to adjourn the meeting at 9:35 p.m. Daniel Baker seconded. A unanimous vote in favor of the motion was taken.

Respectfully submitted,

Margo M. Best
Administrative Assistant
Land Use

 
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