Town of Fitzwilliam, NH - ZBA Meeting Minutes 03/27/07

Others present: Alternates Matt Buonomano and Cathy Davis, Selectmen’s representative Carmen Yon, and John Fitzwilliam, chairman, Historic District Commission. Abutters with an interest in scheduled cases were present.

Minutes: The Board reviewed the minutes of the February 13, 2007 meeting. Several typos were corrected. Wittenborg moved, Ernst seconded and the Board approved the February 13, 2007 minutes as corrected.

Case # 07-04 Carol Langer rehearing of Board of Adjustment’s denial of her administrative appeal of Commission decision denying approval of signage on a canvas awning on the old schoolhouse, located at 22 Route 119W, Map 34, Lot 06, Village Center Business and Historic Districts.

Roberts noted that at their February meeting the Board had decided to rehear the Langer case, adding that nothing required Ms. Langer to be present for the hearing. She began the hearing by reading a letter from Nancy Roehl, a resident of the historic district, who wrote that she wishes to retain the ‘rural flavor of our beautiful town,” and agrees with the Historic District Commission’s decision that the signage on Ms. Langer’s canopy is inappropriate in the historic district. That letter is part of these minutes in its entirety.

Wittenborg said that the Commission couldn’t approve the signage on the canopy because the sign is in violation of the ordinance itself, which would require a variance. Filipi said that because the Commission did not approve the sign according to Section 127-31.2, the permitting process could not go forward until the Commission has acted. He added that the size of the sign and sign ordinance itself is not relevant to this case.

Porter clarified with John Fitzwilliam that the Commission decided Ms. Langer could keep the canopy but had to remove the signage. He agreed. Ernst noted that the Langer property is in the Village Business District, and based on the 2007 sign ordinance the sign is allowable. [This case is being heard under the 2006 ordinances, and in any case the Commission operates under Section 127-31.2, which gives them authority to approve or disapprove signs within the historic district. The sign permitting process would determine if the sign is allowed.]

Ms. Langer said she was ill and found it difficult to speak. She presented her case, and requested that the materials she submitted in the appeal to rehear the case be incorporated by reference in this record. She noted she had a prepared statement, and had brought the dimensions of the building and of the sign to this meeting, as requested.

She said she had always been aware that the Commission supercedes the sign ordinance in the historic district. She said her first act was to submit all the information to John Fitzwilliam, whom she characterized as the acting chairman of the Commission at the time. She maintains that the material she submitted included the proposal from a company to install a canopy and the signage was noted in their proposal. She stated that Fitzwilliam had testified that he’d told the Commission that the canopy was not a permanent installation. She objected to Fitzwilliam’s characterization of the canopy as ‘looking like an Olive Garden sign.’ She said if she’d known that the Commission missed the information about the signage she would have insisted on a hearing – that she really wanted a hearing. She said Fitzwilliam returned the material to her commenting that the “committee hated the canopy but couldn’t do anything about it because it wasn’t permanent.”

Ms. Langer noted she has restored old houses in Fitzwilliam since 1994. She found a canopy company that was reliable and had experience with historic buildings. She acknowledged that her options are to spend $2,300 to replace the canopy or spend the money to take this case to court to see if the court will say that the Commission’s decision was unfair. She said it seems unfair to penalize her (the cost of removing the sign) because of this misunderstanding.

She pointed out that the Old Village Schoolhouse, which is the name on the signage, is the trade name of the owner of the building and such a sign is allowable under Section 127-32-1. She said she knows she could go to the Selectmen for a retroactive permit for the sign. She added that under the ‘general rules of interpretation’ Section 127-33, entitled General Business and all Industrial Districts, could be interpreted to include the Village Business District.

Ms. Langer said she couldn’t understand why the Commission didn’t want her to come in; she had no objection to making an application. She noted that only after Fitzwilliam told her that the Commission couldn’t deal with the canopy because it was not permanent, did she ‘tear up’ the application and go ahead with the canopy and sign. She said she made every effort to come before the Commission, but believes it was an honest mistake, that probably no one noticed the sign information.

In response to an earlier question, Ms. Langer agreed that the font used by the sign maker was not the Goudy Old Style she had requested, but another, perhaps not as old, font substituted by the sign maker without her knowledge.

Wittenborg noted that what people said was beside the point; the only thing the Board can do is decide whether the Commission made an appropriate decision based on an ordinance. Langer said she understood that when she requested a rehearing, new material could be considered. At that time she looked for and found the canopy paperwork, including the proposal that included the signage. Because she tore up the application, she couldn’t produce it. She brought the dimensions the Board requested in February. She hoped someone would be sympathetic.

Fitzwilliam said the Commission did dismiss her initial overture out of hand and she’d remarked at the time ‘well, I’ll do it anyway.’ He added that the Commission then met her halfway, by allowing the canopy to preserve the historic building from water damage, but the sign was never considered appropriate. Porter said the situation pointed out the value of having an official meeting and the need to be present at official meetings.

Fitzwilliam commented that it was the feeling of the Commission that the typeface was inappropriate for the era, and there were other (historic) identification signs on the property. Porter noted the sign was not denied because it duplicated other signs on the property.

Wittenborg read the October 6, 2006 minutes of the Commission decision making process in this case. Wittenborg said that if Ms. Langer wants to rely on Section 127-33B, perhaps one option for the Board is to send her back to the Commission to reconsider under another ordinance. She added that Ms. Langer claims the building is in the Village Business District and the building does house a business.

Porter noted that the Commission does not have guidelines, and it is the prerogative of the Commission to review applications within the heart of the town, which she is 100% in favor of. She said it is an important job, but that without guidelines it becomes separate opinions.

Ernst suggested tabling the discussion for now, until the other cases had been heard. Ernst moved, Wittenborg seconded and the Board voted to table the discussion until it could be resumed after the conclusion of the other two cases.

Mr. and Mrs. Flynn were present. Mr. Flynn presented the case. An abutter, Shelia Young, had called the Land Use Department to express her concern that the shed might be right outside her kitchen window. She had thought it was to be on the other side of the Flynn’s house. In New York on family business, she couldn’t make the hearing, nor could she actually see the real impact of the shed because her house is seasonal and she couldn’t get to Fitzwilliam before the hearing.

Roberts clarified the dimensions of the new shed and that it was proposed as an addition to the existing shed. Roberts asked why he was keeping the shed, and why he’d proposed to have the addition so close to the boundary line. Mr. Flynn said utility wires come into the existing shed and that’s why he wants to keep the existing shed. He said the property is bounded on two sides by water and the shoreline was reconfigured in the past so it swung inland. State regulation requires a minimum of 50 feet setback to the water. The home is already within the local wetlands buffer. They may want to expand the home in the back in the future. The well, septic system and leach field, and driveway surround the house.

Porter clarified that the new shed would be about 14 feet from the neighbor’s home. It is 8 feet from the boundary line, and Mr. Flynn estimated the neighbor’s house at about 6 feet beyond the boundary. Porter asked about cutting trees and Mr. Flynn said no trees would be cut; the shed would nestle into the vegetation and neighbors may never see it. He’d only remove small stuff to make room for the shed.

Ernst asked how the Board felt about a site walk. All agreed. Mr. Flynn said that since they don’t live in the house full time, the Board was welcome to do the site walk any time. Wittenborg asked if a Saturday would be best, and the Flynns and Board agreed to walk on Saturday, March 31, 2007 at 11:00 AM.

Case # 07-05 PSNH application for a Use Variance to construct a new electrical substation on property located on Route 12 N, Map 18, Lot 29, Light Industrial and Rural Districts. This use is not allowed in the Rural District without a variance.

Ernst asked about access to the property. Mr. Young said they will access the site from Route 12 sharing the driveway used by the VFW. Mr. Frazer indicated their preferred access is from Route 12, noting that Gap Mountain Road, on which they have frontage, is not adequate for construction traffic or for moving the heavy equipment.

Porter asked several questions about the purpose of the substation. Mr. Frazer said the station will not produce electricity or store it. The purpose is to transform electricity from high voltage lines to lower voltage electricity that can be used locally. High voltage electricity is used to move electricity over long distances. PSNH has not had the ability to draw down electricity at this point in the past. The electricity will be distributed regionally and will make a more reliable source by virtue of being a second source for local electricity.

When asked how the project could be scaled back if not approved, Mr. Frazer said he couldn’t scale it back. They wouldn’t be able to build it. However, if the area continues to grow, they may be mandated to build the facility. He noted they have asked for a waiver because the property is in two districts, the light industrial district where it is an allowed use, and the rural district where it is not an allowed use.

Mrs. Wolfe, an abutter, asked if the station could be seen from Gap Mountain Road. Mr. Frazer said she shouldn’t be able to see it; it will be about 300 yards to the nearest house and there will be vegetative buffers all around.

Porter asked about lighting. Mr. Frazer said the station will be lighted but they use 1 – 3 lumens for security purposes only. The lights will be pointed down toward the earth to help eliminate lighting the night sky. Filipi said his brother lives fairly near the Troy facility and they sometimes can hear it. Mr. Frazer said the newer equipment is quieter, but there is a corona effect on transmission lines that makes them buzz or crackle. It is more pronounced on humid days. He said sound studies indicate that there should not be any noise louder than normal background noise with this equipment.

Porter asked if the substation was in the wetlands. Mr. Frazer said no, but two proposed pole foundations are in the WPOD. Construction in the WPOD will use best management practices regarding erosion control.

Mrs. Wolfe asked them to explain how the substation would benefit the community. Mr. Young said the substation will provide a point in the PSNH system to pull off power to serve the region, and will be another source of power thereby increasing reliability of service. She asked if electricity ‘leaks’ out of power lines. Mr. Frazer said some power loss occurs due to resistance. Electromagnetic fields (EMF) can be dissipated through the clearance from the ground to the power lines. He added this substation will not make the situation any worse. Amherst has a substation that is relatively the same size and he’s not heard of any problems.

Buonomano asked about the advantages and disadvantages to the town of approving a substation. Mr. Frazer said there were no disadvantages - the station will not require any town services – they will maintain their driveway and road, there will be no impact on the school system. The advantage is that the substation is a valuable asset, an $18 – $20 million dollar asset, which will pay taxes to the town based on that valuation.

(3)(a) The zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property within its environment. Agreed, power lines already cross this property.

(3)(b) There is not a fair and substantial relationship between the general purposes of the zoning ordinance and the specific restriction on the property. Agreed, the purpose of zoning is to meet more effectively the demands of a growing community.

(3)(c) The variance would not injure the public or private rights of others. Agreed, in the past the Board has treated property that was in two or more districts as though it were all in one district and this would be consistent.

Porter suggested the Board go ahead and complete the case tonight. Filipi said that all the Board can look at is the sign like the Commission did and determine if it is fitting or not. Wittenborg said the Board must look at the ordinance to see if the Commission was within its jurisdiction in making the decision it did. Porter said that extrapolating from that meant the Board had to make subjective judgments. She wondered if the Commission followed the rules in making their decision fairly. Wittenborg said fair and equitable were not the issues.

Wittenborg read Section 127-31.2, noting that the Commission jurisdiction is pretty comprehensive. She said the Board didn’t have much to hang a decision on – the ordinance says all signs must be approved by the Commission in the historic district. She said it’s hard to jump in their shoes.

Ernst wondered if the Commission could refer to other regulations. There was some discussion about the neighborhood that surrounds the Old Schoolhouse, including Mr. Mike’s and the state liquor store. He asked if these properties had been taken into account in determining whether the sign ‘fit’ the neighborhood?

Wittenborg expressed her discomfort at dealing with appearance, noting these are difficult subjective issues. She added that the property is quite attractive. Porter said if this comes down to typeface, she could speak authoritatively that this was not an appropriate typeface. She said if her appeal was denied on this basis, perhaps Ms. Langer would have grounds to go back to the company for redress.

Wittenborg said that in her experience the trouble with historic districts is that they don’t legislate on the basis of history – they pick a point in time and fixate on it – Fitzwilliam would be a very different looking town if it went back to the early 1800s. She added it is not a job she would want to do.

Matt Buonomano said that at first it didn’t appear there was any indication of signage in the materials presented to Fitzwilliam and the Commission. It seemed the signage came after the fact, but now it seems there may have been some attempt to get the signage information before the Commission. Wittenborg noted the application for approval was after the fact, after the canopy and sign were up. Filipi feels the Board should put itself in the Commission’s place.

Cathy Davis noted that she was a brand new alternate, and had been reassured that most often decisions were black or white, and weighed according to the ordinances. She didn’t understand why this case was even before the Board. She feels, after the recent experience, that as a town we’re trying to be fairer. She doesn’t see any violation, she sees it more as an aesthetic – does it fit into the historic district. She thinks the Commission needs guidelines in the future. She thinks it’s sad that the application came in after the fact, noting a court opinion that states an individual can’t necessarily rely on what a town official says regarding regulations. However, she feels it is harsh to deny the sign without a real valid indication of the basis for denial.

Carmen Yon wondered if it was possible to remand the case to the Commission, asking if there were enough issues brought up to reconsider. Wittenborg said there does seem to be some new information but this Board generally acts as an appeals court. She said the Board was struggling to come to consensus. She added the biggest problem is what was the basis for the decision to deny the sign, saying generally a town Board gives full faith and credit to another town Board.

Ernst suggested referring to the Commission regulations passed in 1992, specifically 2.d., which states “New structures, changes in existing buildings and land, alterations and demolitions must conform to the general style of neighboring structures…” He asked, if this is so, then shouldn’t Mr. Mike’s and the liquor store be considered as part of the neighborhood? [Mr. Mike’s is not in the historic district and the liquor store is a grandfathered use.] Wittenborg said she saw the point, noting that Ms. Langer’s property is really an eccentric little piece of the historic district – noting there really is no historic neighborhood there.

Buonomano asked if the Board could consider Ms. Langer’s intent – asking was it to go through proper channels or to circumvent them. Roberts said that was not part of the minutes. Wittenborg said she didn’t think determining intent was within the Board’s jurisdiction. Filipi said that it doesn’t apply here – the Board is talking about the sign itself regardless of intent.

Wittenborg said the Board has to decide if the Commission made a decision within their authority. Ernst said the Commission did not apply regulation 2.d., adding that there is no uniformity of the neighborhood, no uniformity of style. Filipi noted Ms. Langer will still need to get a permit for the sign from the Selectmen.

Cathy Davis said there is no uniformity around the Common either – never defined what the town wants – no consistency around town. Filipi asked if the Board could send the case back to the Commission with a request for findings as to why the sign doesn’t fit in the historic district, adding we don’t have enough information about why it was denied. Ernst agreed that the Commission should state basis for denial addressing only their regulations.

Wittenborg said she felt there was a general consensus to send it back to the Commission. She noted the Commission decision does not state the reasons, only the minutes give any indication of reason.

Roberts asked if the Board wanted to remand. Filipi said it’s either that or discuss the arbitrary ‘fit.’ Porter wondered if they were just postponing the hearing to ask for more information. Ernst wondered if the historic district umbrella covered Mr. Mike’s – it does not – but, he added, the neighborhood is not consistently historic. Porter said consistency is impossible when there are grandfathered structures – the intent of the Commission is to preserve historic character. Fitzwilliam noted that the Commission’s responsibility is to define ‘fit.’

Porter said she’d be happy to vote or remand. Filipi thought every member of the Board had an opinion about the sign and probably they personally don’t agree with each other. Fitzwilliam asked if there was a hardship case to consider here – that to comply with the Commission decision to remove the sign could be a hardship. Buonomano raised the issue of intent and fairness, quoting the findings section of the Equitable Waiver of Dimensional Requirements, that if the ‘cost of correction so far outweighs the public benefit…”

Porter asked if the Board knew actually how much it would cost. Fitzwilliam said Ms. Langer did report that compliance would cost the same as the original. Porter found that hard to accept. Fitzwilliam felt an appeal to the canopy company wouldn’t work.

Wittenborg said she felt there was consensus to grant the administrative appeal. Roberts asked if the Board was ready to act. Filipi noted this was an appeal of an administrative decision and there were no findings associated with this decision. Wittenborg asked if the Commission did it right or wrong.

Filipi moved, Ernst seconded and the Board voted to grant the administrative appeal. Filipi voted yes, based on the evidence. Ernst voted yes, based on Commission regulation 2.d., Wittenborg voted yes, Porter voted no, based on her belief the Commission acted on good faith, Roberts voted no, agreeing with Porter. Appeal is granted by a vote of 3 to 2.