Town of Fitzwilliam, NH - ZBA Meeting Minutes 02/13/07

Others present: Alternates Sue Wood and Cathy Davis, Mike Methe, Selectmen’s representative and John Fitzwilliam, chairman, Historic District Commission. Abutters with an interest in scheduled cases were present.

Next meeting: Roberts asked the Board to determine a date for the next meeting. The Annual Town Meeting is scheduled on the Board’s regular meeting night in March. The Board decided to hold the meeting on Tuesday, March 27, 2007 at 7 PM.

Case 07-01: Concord Industries application for a Special Exception to open a retail outlet business in Concord Industries building, NH Route 12, Map 15, Lot 29, Residential, Rural and Light Industrial Districts.

Mr. Methe told the Board Concord Industries want to open a factory outlet retail store in what was the former cafeteria in the Concord Industries building. They plan to be open seasonally, from about May 15^th to October 15^th, with open hours from about 9 AM – 3 or 4 PM. Outdoor and sports products will be sold, from an overstock of inventory or seconds. A small sign saying ‘factory outlet store’ will be added to the existing sign. The sign will not be lighted. Mr. Methe estimated that 15 cars may be in the parking lot in a day. They don’t expect to have any new employees running the shop. They don’t expect an increase in the number of jobs at Concord Industries.

An abutter who lives next door wondered if the manufacturing business was going to expand. Mr. Methe said no, but manufacturing will continue all year long as always. An accounting branch of the company may be transferred to Fitzwilliam, which may mean a few more jobs for the area.

Roberts asked if there were any more questions. Hearing none, she asked if the Board was ready to vote. Wittenborg moved, Ernst seconded and the Board moved to a vote, agreeing that Mandatory Findings were met. The Special Exception was granted. The property is located in three separate zoning districts, with a special exception needed for one district and a use variance needed for the rural and light industrial districts. In the past, another business in the same location was granted a special exception to conduct a retail antiques business. The factory outlet business was deemed to have a similar impact and therefore a use variance was not required for this business either.

Minutes: The Board reviewed the minutes of the December 12, 2006 meeting. A spelling error was corrected. Ernst moved, Wittenborg seconded and the Board approved the December 12, 2006 minutes as amended.

Case 07-02: Darlene Dunchus and William O’Malley application for a Use Variance to keep goats on their property located at 748 Fullam Hill Road, Map 4, Lot 60-1, Rural District.

Roberts read the case and Darlene Dunchus stated she owns approximately ½ an acre of land, but her parents own more than 5 acres abutting her property, and the goats are kept, in part, on her parents’ land. She has four female goats and one male goat, kept as pets. They are a small breed and are sheltered in an old chicken coop within a fenced enclosure. The shelter and fencing do not meet required setbacks.

Ms. Dunchus said she didn’t know there was a problem with keeping goats until she received a letter from the Selectmen asking her to resolve it. [In 2006, an ordinance was passed allowing Residents in the Rural district can keep livestock on one acre of land as long as required setbacks are met, and residents in the Residential district to keep livestock, by special exception, if they have at least one acre of land and meet required setbacks.]

Mr. Bussiere, an abutter, said he owned 8 acres and offered to keep the goats on his property, noting that at least goats don’t bark. Ms. Dunchus said the goats could go to her parents’ property.

Mrs. Muller, an abutter, said the goats are not noisy and she didn’t mind the goats per se, but the stench of the goat pen is overpowering even in winter. She wondered if the goats could be moved to the back of the property. Ms. Dunchus says the smell is coming from the male goat and she plans to relocate him in the next several months.

Porter asked how far from the well were the goats kept. Ms. Dunchus acknowledged that the fence for the goats needed to be moved to meet setbacks. Ms. Dunchus’ father said he had given his daughter another piece of land adjoining hers and that maybe now she had enough land.

Wittenborg said the Board wants to see a solution that will satisfy the neighbors and meet ordinance requirements. Ernst suggested moving the goats off the property will eliminate regulatory problems.

Buonomano said it will be difficult to meet setback and the minimum acreage requirement, as the property is only one-half acre; if the goats were on one acre and met the setbacks then it would be possible to keep them. Ms. Dunchus asked if their situation wasn’t unique with the abutting property being available for the goats. Buonomano stated that they are two separate tax lots and under current ordinance the goats can’t stay on the small lot. He added that the Board can’t discuss the issue of the goats on another property. Wittenborg suggested the Board could grant a use variance if unusual circumstances prevail. Ernst suggested a time buffer to resolve the issue and Wittenborg agreed that denying the appeal with a 90 day period sounded fair.

Ernst moved, Buonomano seconded and the Board approved a motion to deny the appeal for a use variance based on the grounds that the property does not meet minimum requirements and setbacks cannot be met on the property; the owner will have until May 31, 2007 to remove all the goats from the property or resolve the problem in another way.

Wittenborg noted Ms. Langer was not present at the ZBA public hearing of her case in December. She wondered if there was substantial information the Board did not hear because of her absence.

Wittenborg noted this particular sign would be in violation of Fitzwilliam’s sign ordinance anywhere it was located in Fitzwilliam. The ordinance specifies height and size of signs. She added that the Historic District Commission minutes show no discussion of historic character, it denied the signage period. Buonomano said his vote at the last meeting was based on the fact that the Historic District Commission meeting minutes in April give no indication that signage was discussed; he wondered if there was new information about that.

Wittenborg noted the Liquor Store sign was grandfathered, as the sign ordinance was passed in 1999. Ernst questioned the sign for Mr. Mike’s station and store.

Wittenborg said the application makes the argument for reconsideration of the sign, but she was concerned about the issue raised of estoppel. Did the Historic District Commission in fact say the sign was OK and then revoke that approval? She said the estoppel argument was not consistent with what the documents indicate, so there may be the potential for new information.

Ms. Langer said she was hoping to present the new information at the meeting tonight. Porter asked if she had it with her. Ms. Langer said no, adding that in January 2006 she got a proposal from the awning company and gave it to John Fitzwilliam. She said he brought it to the Historic District Commission meeting and told her they said she didn’t need an application and that a canopy can be removed so it wasn’t changing the structure of the building. Ms. Langer was asked if she had proof that the Historic District Commission told her she didn’t need a review. Ms. Langer said she only knows what John Fitzwilliam said.

Wittenborg noted the HDC meeting minutes did not indicate they had seen a proposal for a sign on the awning. Porter asked Ms. Langer to provide the dimensions of her sign. She wants the HDC to tell the ZBA what happened, wondering what the basis was for denying the signage. She added it seems very subjective. Wittenborg said the denial was straightforward, based on the sign ordinance.

Ernst wondered what distinction was made between a business sign and a sign that identified a place. Wittenborg replied that place signs are OK if they comply with the sign ordinance and section 127-31.2.

Ernst noted that to prevent this situation in the future, all Boards should know Section 127-31.2 applies. There was some discussion about enforcement. Wittenborg noted that when people bypass the HDC, ordinances must be enforced after the fact. Methe noted that the town had to go to court to collect penalty fines. Wittenborg suggested the HDC document referencing the ordinances they use to make decisions so the decisions are not subjective.