Town of Fitzwilliam, NH - ZBA Meeting Minutes 05/09/06

Case #06-06: Public Meeting: Motions for Rehearing - Sandy Coburn, Ralph Niemala and Richard Dwinell, abutters, have filed petitions requesting a rehearing of the Board of Adjustment’s decision regarding case # 06-03 on March 28, 2006, granting the appeal by Mr. Patel of an administrative decision of the Planning Board. The Planning Board had sent Mr. Patel to the ZBA for a special exception to convert Bloomin’ antiques building to a convenience store. The property is located at 646 NH Route 12 South, Map 8, Lot 13, Rural District. (If the motion is granted, a public hearing will be scheduled and noticed.)

Roberts read the case and referred to the Planning Board minutes of their May 2, 2006 meeting approving the site plan for the Patel convenience store with conditions. She asked if anyone on the Board had comments. (Copies of the three motions for a rehearing are included as part of these minutes.)

Goldknopf clarified that the Board’s charge is to determine if the Board needs to correct their previous decision granting Mr. Patel’s appeal of the Planning Board decision. Roberts read the Planning Board’s conditions of site plan approval.

Wittenborg said she’d reread the Conforti v Manchester case since two of the motions to rehear referred to the case, in an attempt to distinguish that case from the one before the Board. First, the Conforti case concerns the largest city in NH; it concerns live entertainment versus presenting movies; it involves an alteration to the building; there are other zoning districts in Manchester where live entertainment is allowed; and the doctrine of administrative gloss does not apply in the Patel case. She added that Fitzwilliam zoning ordinance does not distinguish among different types of retail uses, and the court says to look to the use of the property at the time of zoning. In this case, she said, the property was a restaurant. She finds the Conforti case not on point, and that is the basis on which she made her decision.

Mrs. Coburn, an abutter, noted that the building was used as a group shop for the sales of antiques in 1987 when the area was first zoned. A small café restaurant was added to the group shop in 1989.

Fletcher concurred that retail is retail and the Board’s purview is to interpret town ordinances using what is before them. Section 127-11(a) does not distinguish among retail uses. Wittenborg said there were no further refinements of the zoning regulations. She had consulted with the Master Plan and it states that the Route 12 corridor is for commercial uses, and further that convenience stores can be located in residential areas. Fletcher remembered that the village center residents were very sad when Roy’s Market closed its operation in the center of the village, and they sold alcohol, tobacco and girly magazines. Wittenborg noted that the market was open until 9 PM too.

Goldknopf returned to case law and pointed out that in Hurley v Hollis, any change in use should have no substantially different impact on the neighborhood, and further it is incumbent that the nonconforming use be returned to conformity as soon as possible. He suggested looking at the criteria for a special exception, noting that if their decision had been to deny the Patel administrative appeal and move on to the special exception, they would have considered the special exception criteria, and then could have set conditions. He called the Board’s attention to those conditions outlined in Section 127-41F, noting the Board may “impose such conditions, safeguards and limitations as it deems appropriate to protect the neighborhood or the town…”

Goldknopf said he wouldn’t mind if the ZBA had found a special exception necessary, but since they didn’t he’d like to applaud the Planning Board for doing what the ZBA didn’t do. He said that, in effect, the Planning Board has done it all, and he applauds their use of their authority. He concluded that if the ZBA had found a special exception necessary, the Board could have added the same conditions. He referred to the Planning Board minutes for May 2, 2006, reading “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.”

Wittenborg said that if there was a further refinement of the word retail, they might reconsider. She said that since the Planning Board does not regulate hours of operation, they can’t discuss the hours of operation as a possible expansion of use. She didn’t think the Hurley case compared with this case. The statute really controls and there is no alteration involved in the Patel case, as there was in the other cases.

Filipi said he thought the issue was a question of whether or not the traffic constitutes a change in use. In his opinion it doesn’t, adding that a convenience store doesn’t impact traffic flow the way a fast food or drive-through business might. He said this type of store doesn’t attract more traffic. Fletcher added he thought having a convenience store on both sides of the road might actually mitigate the safety issue because southbound traffic may enter the Patel store and northbound traffic may enter Bottoms Up.

Filipi said that with three convenience stores in town selling virtually the same products, he doubts that the new store would attract a new customer base. They may take some customers away from existing stores. He added that safety issues were up to the state in any case and the Patel traffic study is still pending with the state.

Mrs. McLaughlin, abutter, said she didn’t think the Board had heard them before. She said her family were Christians and they were raising their children as Christians. She noted this was a rural area and the proposed store will be selling ‘sin’ products, like alcohol, tobacco and girly magazines. She acknowledged that there was a store across the road but added that this one will be right next door. She asked “how terrible can you get?” She thought the Board was not thinking about the health and welfare or her children, saying ‘you’re trying to shove it down our throats,’ and ‘you’ll have to answer to God for this.’

Mr. Taylor, current owner of the building, noted that there was another lot between the McLaughlin lot and his property. There was some back and forth, and Wittenborg asked the audience to talk through the chairman of the Board, not with each other.

Mr. Niemala, abutter, referred the Board to RSA 674:17, and asked if it applied. Wittenborg said it didn’t as it was enabling legislation allowing towns to create zoning. Mr. Niemala expressed his frustration with dealing with different boards with different jurisdictions. Wittenborg noted that the Planning Board wrote the ordinance having to do with retail, the town voted on it and the ZBA has to abide by it.

Mr. Niemala asked if that meant one could sell dynamite. Wittenborg said no, it was state regulated. Mr. Niemala then asked weren’t alcohol and tobacco regulated by the state too. Wittenborg said yes.

Mr. Niemala said it didn’t work that way, with cars going north stopping at Bottoms Up. He said customer flow is regulated by sales prices, lower prices. Cars will go to stores with the lowest prices and the turning traffic will create traffic congestion. Fletcher said if he was coming from MA he would stop at Stateline because gas prices were so high and he didn’t want to spend money on unnecessary travel.

Mr. Dwinell also spoke of his frustration dealing with so many boards. He asked about the ‘illegal apartment.’ Wittenborg noted that if the applicant wants an apartment he will have to come to the ZBA for a variance, since the conditions of site plan approval do not allow an apartment. Filipi added that if the applicant violates conditions of the site plan review, it will be enforced.

Mr. Dwinell said, in his experience, people drive a long way to go to a store they like. Most of the traffic at his store is from MA, and he has two lanes in front of his store and still there is traffic congestion and accidents. He felt the Board did not know the real traffic situation. He added that if one of his family members is in a fatality there he will sue the Town. He said many of them have lived there for a long time and know the situation, and wished the Board could observe traffic on a Friday night.

Roberts asked if there was anything more the Board hadn’t heard. Mrs. Coburn said, no, but the Board is ignoring them. Referring to Planning Board minutes, she said the Planning Board had consulted with legal counsel who thought there would be an intensification of use that could constitute a change in use. It is a rural area and she said the Board had ignored Section 127-35B of the ordinance regarding the change in use of a nonconforming use. She said the current store is not a real retail store, but is a group store with Mr. Taylor acting as an agent for antique dealers. Dealers don’t sell directly to him and he doesn’t replenish the shop.

Mrs. McLaughlin referred to RSA 674:17, saying the Board needed to listen – this store is totally against that RSA. She added that there is a difference in retail, some goods are durable goods and some are not durable. This store is right where her children will be playing. She said the Board needed to have more empathy with members of the town, adding she thought their empathy was with Mr. Patel, who is not a member of the town.

Mrs. McLaughlin asked for every Board member’s name. Filipi noted that the Board is bound by law and town ordinances. He added he realized abutters may take their case to court. Mrs. McLaughlin said they had been dealing with this since August and their nerves are shot. Mr. Dwinell said he didn’t have an answer about the apartment, traffic and the number of people that would be hired in the new store. The apartment was withdrawn as part of the Patel site plan application; the traffic study has been accepted by the Planning Board and is pending with the DOT; and the number of employees is not in the Planning Board’s jurisdiction in this case.

Regarding the appointment of members by the Selectmen, Roberts said the Selectmen have been dragging their feet. She suggested that she write a letter asking them to do it quickly, the Board is entitled to 5 members and 3 alternates and it is difficult to operate, especially in the summer, without a full complement. Wittenborg felt it was necessary to discuss the appointments more, saying there are critical seats open, and more to become vacant when she and Fletcher move out of town in the next several months. She asked Mr. Methe to comment on what the Selectmen plan to do.

Mr. Methe noted that Andy Clukey was the Selectmen’s representative, that he was just an observer at tonight’s meeting. Roberts noted that the ZBA wants to submit names to the Selectmen and Mr. Methe said to go ahead and submit names. Several names had been put forward already, including the names from the last round of appointments, including Susan Silverman and Coni Porter for reappointment. Another list was submitted by Roberts that included MaryJo Yon, Brian Luddy, and Matt Buonomano. Mr. Methe didn’t think it was a good idea to appoint a total newcomer to the Board, but he’s seen new people follow a good set of rules.

Fletcher noted, as a practical matter, he thought Mrs. Silverman would have to recuse herself because her husband chairs the Planning Board, and while it is not a financial conflict of interest there may be a perception of conflict. Mr. Methe said one name they had come up with was Mr. Buonomano. He thought alternates should be moved up to the Board and new members should be alternates.

Roberts confirmed with the Board that they wanted her to write a letter recommending Coni Porter for reappointment, and MaryJo Yon, Brian Luddy, Buzz Bemis and Matt Buonomano as Board members or as alternates. She will submit a letter to the Selectmen at their meeting in the morning.