Town of Fitzwilliam, NH - ZBA Meeting Minutes 05/08/07

Case # 07-06 Hitendra Patel appeal to construct a free-standing business sign, 32 square feet in size, located at a non-conforming business, Stateline Grocery, 1117 NH Route 12 S, Map 4, Lot 79-1, Rural District.

Mr. and Mrs. Patel were present with sign maker Fernandos. Roberts noted this was an appeal of an administrative decision of the Selectmen denying a 32 square foot free standing sign because the property is in the Rural District and free standing signs in that district are allowed if they are less than 4 square feet, per Land Use Ordinance (LUO) Section 127-33 F.

Fernandos reviewed the need for a free standing sign to attract business traveling north on Route 12 since the roof sign is hard to see at that point. Roof signs like this one are prohibited now, but this sign is grandfathered. The free standing sign will be two-sided to be seen from both directions. The sign on the roof will have a new face but the infrastructure will remain the same. Wittenborg said there were good business reasons for a sign at this location, noting Stateline Grocery has been there for a long time.

An abutter, Linda Duffy, asked if the sign would be lighted. Mr. Patel said it would be, and that it would be on a timer to go off one half hour after closing, per LUO Section 127-37 C.

Porter asked the Board to keep in mind that the Zoning Board is charged with helping to make grandfathered properties become more conforming. She wondered if allowing the new sign was accomplishing that goal.

Filipi asked if there was outdoor lighting now. Mr. Patel said the roof sign is lighted and there is a pole light for the parking lot – they are on switches. Mrs. Duffy suggested that someone needs to remember to turn them off after closing. Porter noted that an issue for the neighbors is now the lighting has nearly doubled on the property. Fernandos said the signs are backlighted.

Ms. Duffy asked if the new sign was out of the state right of way. Fernandos said the sign is 75 feet from the centerline of Route 12, which is the boundary of the state right of way.

Mr. Methe said the repercussions of granting this sign may be that other businesses will want another sign too. Filipi asked what the Selectmen’s position was on temporary signs and product sales signs. Mr. Methe said that if they are laid down at night they are technically temporary signs; he opined that the sign ordinance is very hard to monitor and enforce. Filipi noted that small businesses like this have a lot of vendor signs; if we could get rid of those it would be better. He thought the sign as proposed was a good sign and the lighting wasn’t a problem. Methe agreed that if you could get rid of the vendor signs, others who applied for another sign could be encouraged to get rid of their vendor signs too.

Wittenborg felt that small stores in the community were valuable to the community; they are family owned and worth supporting. She noted that visitors to Fitzwilliam appreciate these stores; they may not see small family owned stores very often. She feels that signs advertising daily specials are great and that vendor signs don’t really draw people in.

Wittenborg moved, Filipi seconded a motion to grant the Patel appeal from the Administrative Decision of the Selectmen denying the free standing sign. Ernst moved, Filipi seconded a motion to amend the original motion by adding the phrase “on condition that the vendor signs are removed.”

Roberts moved, Porter seconded and the Board voted to close the public hearing and go into deliberative session. The Board discussed the proposed amendment. Wittenborg said she wasn’t as bothered by the vendor signs but noted it was the first thing people saw when entering Fitzwilliam from the south. Ms. Duffy suggested using temporary signage hanging below the free standing sign to advertise specials. Another suggestion was to allow only existing vendor signs, but no new ones. Methe reminded the Board to keep it simple because monitoring and enforcing the ordinance is difficult already.

Wood said that, as a business person, signs are important and hoped the Board could be flexible in allowing signs for specials. Filipi reminded them that they were discussing vendor signs, not temporary signs for specials.

Porter called the question on the amendment. Porter voted yes on adding the amendment; Wittenborg voted no, stating the amendment was overly restrictive given the history of this business, adding that the new owners may take them down voluntarily. Roberts agreed, voting no. Ernst and Filipi voted yes to add the amendment. The amendment passes.

Roberts called for a vote on the motion with the amendment: The Board voted to grant the Patel appeal from the Administrative Decision of the Selectmen denying the free standing sign on condition that the vendor signs are removed. A 32 square feet free standing sign may be erected at Stateline Grocery as proposed.

Case # 07-03 continued - William Flynn appeal for an Area Variance to encroach on setbacks by constructing a shed on property located at 144 Scott Pond Road, Map 36, Lot 2, Rural District.

Roberts noted the Board had not received any new drawings from Mr. Flynn. Porter said she thought it was left with Mr. Flynn at the site walk that he could move the shed so it wouldn’t need relief from dimensional requirements. Ernst noted that according to minutes of the site walk, Mr. Flynn had proposed moving the shed so it intruded only two feet into the setback, and asked if the Board could approve the application based on that. Wittenborg said she

didn’t feel she could make a decision without a drawing. Ernst recommended tabling the application and telling Mr. Flynn the Board will only consider it one more time. Porter asked if the Board could dismiss the application. Ernst asked if the Board could waive the fee if the applicant comes back to the Board. Fees can be waived by the Board.

Elections of officers: Wittenborg nominated Jane Roberts as Chairman. Ernst seconded and the Board approved the nomination. Roberts nominated Wittenborg as Vice Chairman and Clerk. Ernst seconded and the Board approved the nomination. Each will serve for one year.

The Board reviewed the application and confirmed that the property is a 15 acre parcel. Roberts reported that the Board had received several letters from abutters, which will be read into the record later. She said the application for a special exception for an accessory apartment must meet the criteria: the apartment is no larger than 800 square feet and that one of the dwellings is occupied by the owner.

Mrs. Crowe said she will live in the house and her mother will live in the apartment. The apartment is 748 square feet and a deck will be enclosed to serve as a mud room for the main house. Roberts noted that as long as the deck enclosure is not part of the accessory apartment it requires only a building permit from the Selectmen.

Ernst asked where exactly the apartment was going. Mrs. Crowe indicated a place between the existing barn and the house, which is currently used for parking. Wittenborg suggested a site walk to see the property. Filipi said setbacks are not relevant in this case since the drawing indicates the apartment as proposed meets all setbacks.

Ernst asked if the septic system could handle the extra bedroom. Mrs. Crowe said she planned to take out the half bath if necessary. They have a three bedroom home. Filipi said an accessory apartment is actually a separate dwelling and the septic design needs to accommodate that use, adding that this too was an issue for the Selectmen to consider during the building permitting process.

Roberts read letters from the abutters into the record. They are a part of these minutes. Each abutter expressed their intention not to oppose the apartment but to raise the issue of tires, debris and an abandoned vehicle on the property. Erik Durmer, a neighbor, expressed three concerns, saying he had no wish to stand in the way of the apartment. He is concerned about runoff primarily because the Crowe house is higher than his and a stream runs from the Crowe property over his property and then onto other neighbors land. He fears that as it runs through debris it will pick up pollutants that will be spread to other properties. He added that at one time the septic system failed and he wants to insure that the septic system can handle the expanded use. He noted the apartment will be very close to the bank and he is concerned about possible excavation debris and erosion.

Ernst said he appreciated the neighbors’ concerns; however, they are not relevant to this Board’s deliberation of the special exception; they should be conveyed to the Selectmen.

Mrs. Crowe responded that the recreational vehicle is not abandoned but they have lost the keys and will move it as soon as they have a replacement key made. Regarding the tires piled over the bank, they were intended to be used in building a retaining wall. This plan has been changed and the tires will be removed. She said they cut trees on their land so they could see the sunset over Little Monadnock Mountain. She will clean up the property.

(5) With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome. All agreed that this finding was not relevant.

Case # 07-08 Christopher and Susan Benik appeal for a special exception to construct a two bedroom home within the wetlands protection overlay district on a nonconforming lot of record located on Route 119 W, Map 31, Lot 7, Res. District.

Filipi said the Beniks went to the Conservation Commission first and were told the Commission did not recommend this as a building lot because no structures are allowed in the Wetland Protection Overlay District (WPOD) and there did not appear to be an alternative site on the lot that was not in the WPOD wetlands buffer.

Filipi said that prior to 2006, building was allowed in the WPOD with a conditional use permit. In 2006 the town passed an ordinance that prohibited structures larger than 100 square feet in the WPOD. He said the provision was inserted in a section that referred primarily to septic systems, alteration of wetlands, underground storage tanks and hazardous materials, which may be permitted with a special exception. He felt the ordinance was too restrictive and inappropriate in this case, since the section refers to dredge and fill proposals, adding that the Beniks really need an area variance because they can’t site a house farther than 30 feet from the wetlands on this lot. Wittenborg agreed.

Wittenborg asked Methe for his thoughts and he responded that he really didn’t know since he hadn’t looked at it but thought that the problem was that the Planning Board knew this ordinance might be a problem when they wrote it. Wittenborg said that it seems there is a basic conflict between Boards. She said the ZBA may have no choice but to make a decision that is adverse to the Conservation Commission recommendation.

Ernst noted that the Planning Board referred to two sections of the ordinance and it looks like the proposal could meet the criteria under the special exceptions section. Wittenborg said the referral from the Planning Board came as a special exception and the ZBA can’t alter the application. Filipi said he thought they could. Porter asked if the special exception criteria under 127-16 D. (5) preempted the criteria for findings under the ZBA’s mandate. It does.

Davis asked if the vote of the ZBA will in effect decide if the lot is buildable or not, noting that the lot has been taxed as buildable. Mrs. Benik reiterated the process they have followed to determine if the lot is buildable. Porter said that if the special exception is denied, at least the Beniks could file for a tax abatement for taxes paid on a lot that has been determined to be not buildable.

Wittenborg said taxes are not the issue; it is grandfathered as buildable. She said there was once a building on it. Roberts and the Beniks confirmed that there were remnants of a foundation, well and septic system on the property. Roberts said there hasn’t been a building on the property for 40 years – and Methe said at least 60 years.

Ernst said he thought the Board should proceed under 127-16 D (5) regarding the special exception. Wittenborg wondered if any other findings were necessary if they do. Filipi said he questioned the intent of the zoning and asked to review the plan, noting all setbacks except the setback from the wetlands buffer have been met. Mrs. Benik said the septic system plan has been approved by the state.

Ernst noted that a very small portion of the WPOD is involved. Mr. Benik said he thought less than 10 %. Mrs. Benik said a restriction will be in the deed that the Beniks will approve the building design before it is built, because they live across the street and will look at it.

Porter said the houses in the neighborhood seem to be quite far apart. Mr. Benik said the new house will be set back to a distance that is between the set back distances of the two neighboring houses on either side. Porter wondered if the configuration of the road, NH Route 119 W, at this point makes it a good place to increase density. Filipi reminded her that the Board can only look at this under 127-16, not the Board’s mandatory findings criteria.

3) The total area of altered wetland does not exceed the lesser of five thousand (5,000) square feet or ten percent (10%) of the wetland area on the property. Not relevant Filipi suggested leaving the wetlands flagged during construction to insure not wetlands are affected.

(5) The proposed use will not create a hazard to individual or public health, safety or welfare and will not diminish the wetlands values identified in Subsection A. All agree.