DRAFT
Zoning Board of Adjustment
Meeting Minutes
December 9, 2008
Members Present: Jane Roberts, Gretchen Wittenborg, Jack Ernst, Cathy Davis and Steve Filipi. Mike Methe, Selectmen’s representative, was present.
Meeting was called to order at 7:00 PM
7:00 PM Case # 08-09: Cheryl and James Hogan appeal for Special Exception to conduct a retail gift and antiques business in residential district building located at 45 Route 119 W, Map 32, Lot 46, Residential and Historic Districts.
Roberts called the meeting to order and read the above case. She noted that this building once housed a retail antiques business, but there hasn’t been a business there for more than a year, necessitating a special exception at this time.
Mrs. Hogan said she and her husband plan to open a gift shop with antiques and consignment items. They plan to be open from 9 – 4:30 weekdays, and perhaps on Saturdays in the future.
Asked about parking, they said they were comfortable with the four spaces allotted the building. Wittenborg cautioned them to be very sure of their rights since the easement is shared by two owners and both use it for parking or storage.
Gary Taylor, abutter, said he is supportive of the new business and that he uses the driveway between the building he rents and the Hogan building to get to parking for his tenants. He said that in the past, people have blocked his driveway and the police have not been responsive. He asked if the ZBA could stipulate that the Hogan’s monitor the parking. Wittenborg said the ZBA cannot stipulate since it cannot enforce this action. She believes it is the owner’s obligation to insure that customers comply with the regulations, an if customers don’t, it is a police department issue. She said it is reasonable for Mr. Taylor to ask the Hogan’s to post no parking signs.
Ms. Dubinski, an abutter directly across the street, asked the Hogan’s to be sure no one parks in front of her mailbox, since that prevents her mail from being delivered. Mr. Camera, abutter, said there are two parking spots directly in front of the building. There was some discussion about whether it was legal to park in front. Wittenborg said that parking was in the planning Board’s purview. The Planning Board met with the Hogan’s and noted that there are four parking spots associated with this building, two on the east side and two in front.
Roberts closed the hearing and the Board moved to deliberate the mandatory findings. Agreeing unanimously with each of the five findings under Section 127-41 E of the zoning ordinances, Wittenborg moved, Ernst seconded and the Board voted to grant the Special Exception.
Minutes: The Board reviewed minutes of the October 30, 2008 meeting. Wittenborg noted two clarifications and they will be noted in the October 30, 2008 minutes. Ernst moved, Davis seconded and the Board approved the minutes as amended.
Administration: Roberts turned the meeting over to Wittenborg to discuss meeting management issues, saying that she felt Gretchen had done a very good job managing the October 14 and 30 meetings.
Wittenborg said she would like to have the Board follow its rules of procedures more closely and make the meetings more formal. She will also begin to discuss relevant case law and answer questions about the work of a ZBA, to keep the Board up to date. She may do an informal newsletter for the Board.
Davis had a question about use variance mandatory findings, in particular the finding that 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.” Wittenborg flet that is there is another property with similar characteristics or shares the same characteristics, no unique setting exists, even if the parcel is the only one available for a particular use.Wittenborg said it was a difficult issue and that the Simplex case changed the criteria significantly regarding hardship. The court found that while the ZBA was expected to grant variances, their regulations aren’t flexible enough to do so.
Wittenborg will give copies of the Simplex case to other members. They then discussed another case where the court appears to be moving away from the generally accepted practice of trying to make nonconforming uses more conforming.
Ernst moved, Davis seconded and the Board voted to adjourn at 8:00 PM.
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