Fitzwilliam Zoning Board of Adjustment
September 08, 2009
Members Present: Steve Filipi, Chairman, Jane Roberts, Gretchen Wittenborg, Cathy Davis and alternate Sue Wood in for Jack Ernst.
Others present: Tom Parker, Selectmen’s representative, and abutters.
CTO: 7:00 PM
7:00 PM Public hearing: Case # 09-06 Tim Austin application for a special exception to construct an accessory apartment above his garage located 119 NH Route 12 North, Map 15, Lot 32, Residential and Historic Districts.
Mr. Austin said he wanted to create an apartment above his garage. There will be two exits from the unit for insurance/safety purposes. A dormer will be added to the second floor to provide the egress, with a spiral staircase or ladder; the footprint of the building remains the same. He will add another overhead door so moving cars in and out of the garage is easier.
Filipi said that the Board is looking at the use of the property only, noting there are no changes to the original footprint of the building. It is proposed that the building will be used as a single family dwelling with a business in the residential district.
Roberts asked about the number of bathrooms, and the location and adequacy of the septic system. Mr. Austin said the septic system is new because two accidents occurred and the septic system had to be replaced; Monadnock Waste drove over the septic tank crushing it and they replaced it. Later a NH state excavator drove over the leach field crushing it, and they replaced it. Asked about size of lot and ability to expand the septic system if necessary, Mr. Austin said the lot is about 1/3 of an acre and the septic could be expanded into the ‘island’ if necessary. It is a 1000 gallon tank and he believes the system is adequate for the three bathrooms, two upstairs and one downstairs.
The water well is under the building and the water recently passed a water test. Wood asked about ventilation and exhaust fumes. Mr. Austin said the building is well ventilated and the ceiling above the garage is very well insulated and there are vents in the eaves. He does not run cars once they are inside the garage.
Wittenborg expressed concern about the DES compliance issues in the file, noting this goes to the ZBA mandate to consider the health and welfare of the public, adding that a special exception needs to be justified by special circumstances. Mr. Austin said the state has removed all the monitoring wells that were tracking suspected contamination from old fuel storage tanks. His garage does not pump gas and the underground fuel tanks have been removed and were in good shape when removed. The island is solid clay and the state suspected that gas overfill spillage may have occurred there which contaminated the clay. They excavated all the clay and filled it in with sand.
Wood asked about the number of cars allowed on the site. He said there will be one more, once he is living there. The site plan prepared in 1994 specifies no more than 12 cars at one time. Mr. Austin said he was ill prepared for the site plan review and that was a number he just threw out. Wittenborg noted that there were 15 stipulations on the site plan review. Filipi read each one and the stipulations were about operating hours, number of employees, number of vehicles, tires and trucks on site, storage of oil, antifreeze, batteries, oxygen, and acetylene, number of fire extinguishers required, trash screening and underground storage. Mr. Austin said that with the exception of the fencing, the garage is in compliance.
Filipi said the ZBA is not bound by the Planning Board stipulations, other than the parking issue. The table of principal uses allows a special exception for a combination dwelling and business and the applicant must only meet the criteria for a special exception. He added the Planning Board didn’t limit it regarding use.
Hearing no further discussion, Davis moved, Roberts seconded and the Board voted to close the public hearing. Filipi noted the Board would discuss the five criteria and vote on each.
Mandatory Findings by the Board of Adjustment. The Board of Adjustment shall not issue a Special Exception unless, without exception, it shall find that the proposed use:
1. Is in harmony with the purpose and intent of this chapter. The Board agreed unanimously, noting that this is an allowed use with a special exception according to the table of Principal Uses in the residential and abutting districts. Filipi noted there were many residences and business uses in this neighborhood; it is a mixed use neighborhood.
2. Will not be detrimental or injurious to the neighborhood in which it is to take place. The Board agreed unanimously, noting that the original contamination has been removed, the septic seems adequate and the site plan restrictions are in place. Wittenborg said the septic is a building permit issue, and Filipi said he would want a septic designer to evaluate the system to see if it can be expanded if necessary, without impacting neighboring wells. Wood asked if it was appropriate to require water testing. Filipi thought that if the unit is rented to someone other than the owner the water should be tested annually. Filipi said as long as the selectmen are satisfied with the septic, he is.
3. Is appropriate for the site in question. The Board agreed unanimously. Davis said the structure is already there and there are only internal changes. Filipi said it is in a high density area right on the general business line. Davis noted there are other business/dwelling combinations nearby.
4. Complies with all applicable requirements of this chapter. The board agreed unanimously. Filipi noted some of the setbacks may be nonconforming, but the all changes are within the building envelope.
5. With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome. The Board agreed this criterion was not applicable.
The Board unanimously agreed that all four applicable findings were met and the Special Exception is granted. Wittenborg moved, Roberts seconded and the Board voted to place two conditions on the special exception: 1) if the unit is rented to a non-owner, the water must be tested annually; and 2) the septic system should be reviewed by a septic designer to ascertain if it can be expanded if needed.
7:30 PM Public hearing: Case # 09-05 Roger Keilig application for a Special Exception to confirm general business zoning of property located at intersection of Route 119 and Route 12, Map 34, Lot 2-1, Residential and Historic Districts.
As Mr. Keilig began his presentation, Wittenborg questioned whether the ZBA could ‘confirm’ zoning. Filipi noted that this store had been opened in 1974, prior to zoning and has been running continuously ever since. Zoning began in 1987. He said Mr. Keilig wants to confirm that the business is OK in the residential district. Mr. Keilig said the Planning Board had told him the special exception would run with the land. There was some confusion about whether the exception will run with the land or just with the business as long as it is in operation.
Wittenborg said the Board does not have a recorded plan that delineates the portion of the property to be included in the general business district. Filipi told Mr. Keilig the Board cannot put the property into a new zoning district, but it can issue a special exception for a retail business in the residential district. He added that one would have to go to town meeting to change the zoning. Mr. Keilig said he wants the special exception to make the building a retail use in the residential district so future financing would be possible as he makes the transition from the state liquor store, which will close at some point in the near future, to another retail type business. He said he has been a retail store on that corner for 35 years and wants to be able to compete with the other retail
establishments at the intersection.
Filipi said the Board can grant a special exception for the building and associated parking, but not for the whole property. Mr. Keilig said that would be fine and he will address the zoning issue at town meeting. Filipi said that if the new business is very different he may need to see the Planning Board. Filipi explained the situation to an interested abutter.
Mr. Keilig noted that in this economy it may take more than a year to bring in a new business, adding he does not have a lessee for the building right now. Wittenborg said she believes the exception endures, but wouldn’t swear to it. She said we’re looking at granting a special exception on the building, the portico and parking lot.
Roberts moved, Wittenborg seconded and the Board voted to close the public hearing.
Mandatory Findings by the Board of Adjustment. The Board of Adjustment shall not issue a Special Exception unless, without exception, it shall find that the proposed use:
1. Is in harmony with the purpose and intent of this chapter. The Board agreed unanimously. Roberts and Wittenborg said this has been a retail business forever and is grandfathered as retail. Filipi said the building is a fixture in town.
2. Will not be detrimental or injurious to the neighborhood in which it is to take place. The Board agreed unanimously. The Board said, in jest, that the business hasn’t been, so far.
3. Is appropriate for the site in question. The Board agreed unanimously.
4. Complies with all applicable requirements of this chapter. The Board agreed unanimously.
5. With respect to dimensional requirements establishes that there exist special conditions that make the meeting of these requirements unduly burdensome. The Board agreed unanimously that this criterion is not applicable.
The special exception is granted.
Minutes: The Board reviewed the minutes of the July 14, 2009 meeting. Two words were changed. Wittenborg moved, Roberts seconded and the Board approved the minutes as amended.
Several members will attend the Law Lecture on September 23, 2009 in Rindge.
Sue Wood, alternate, said she will be out of town in October, January, February and March and the Board really needs to have other alternates.
Parker responded to a question about the warrant articles from March 09, saying the hearing is scheduled for September 30, 2009, and if the ordinances are declared void, the Selectmen will probably not hold a special town meeting so close to the 2010 town meeting date. He added that the current litigation on the wireless high speed broadband tower should be wrapped up soon.
Wittenborg moved, Roberts seconded and the Board vote to adjourn at 8:30 PM.
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