Zoning Board of Adjustment
Meeting Minutes
January 13, 2004
Members present: Daniel Baker; Clerk, Edwin Mattson, Jane Roberts and Coni Porter
Members absent: Michael Methe; Chairman and Gerald Neiman, Alternate
Selectmen present: Joan Knight
Daniel Baker agreed to chair this meeting and opened the meeting at 7:33 p.m.
Public Hearings
7:30 p.m. Case #03-16: Roger J. Quesnel of R&D Automotive requests a Variance under Article III: Section 127-11 (U) to conduct retail sales of automobiles on property located at 269 NH RT 119 East, Tax Map 16; Lot 15, located in the Rural District. – Acting Chairman Baker explained to Mr. Quesnel that they do not have a quorum present this evening, and it is his choice whether or not to proceed with the public hearing for this application. Mr. Baker explained that the decision of the Board would be binding and in order to grant the variance that he is seeking, he would need a majority vote meaning at least three of the four members voting affirmatively. Mr. Baker additionally explained that the cost of renoticing this case would fall on the Board since they do not have a full Board
tonight. Mr. Quesnel chose to proceed this evening.
Mr. Baker opened this public hearing at 7:35 p.m. and read the case title aloud. Mr. Baker explained the procedure in that the applicant explains what their plans are and the Board would ask questions and hear any testimony from any abutters that may be present. Mr. Baker asked Mr. Quesnel to tell the Board what his plans are noting that they have a copy of his application before them.
Mr. Quesnel told the Board that he is basically trying to get a license from the State so that he can sell some of the cars that he has at his station in Vermont, perhaps three or four at a time. Mr. Baker clarified that the cars would be sold from the property listed on the application. Mr. Baker noted that they are looking at a variance for this property. Mr. Baker confirmed the reference on the application which reads 127-11 U.
Mrs. Roberts asked if the cars would be stored outdoors or inside a building. Mr. Quesnel stated they would be outdoors. Ms. Porter asked if this would be a seasonal business or year-round, to which Mr. Quesnel said it would be year-round. Ms. Porter asked if the cars would be on his lawn and how he would handle interested parties during the winter months. Mr. Quesnel stated that he would keep his yard plowed and the cars would be cleaned off. Mr. Mattson reviewed the map that Mr. Quesnel provided with this application and Mr. Quesnel pointed out the driveway location, the house location and where the cars are parked. The cars are to the right of the driveway in an area that is pretty open. Mr. Baker noted that on his application that he indicates 3 or 4 cars to be on the
property and Mr. Quesnel said that he didn’t want a ton of cars there. Mr. Baker asked if hew was setting a limit for himself with these figures and Mr. Quesnel said that he was fine with having four cars as a maximum. Mr. Baker confirmed with Mr. Quesnel that if the application were granted, that a condition limiting the number of cars would be acceptable to him, with that figure being four.
Mrs. Roberts asked about the regulation in town with regards to a person not having more than two unregistered vehicles in their yard and if that would affect this decision. Mr. Quesnel said that he didn’t think it would apply if he had a State license. A couple of Board members said that they have heard that but are not sure. The Administrative Assistant explained to the Board that Mr. Quesnel has applied for the license but the application is currently here because the State sends it to the town to make sure that it meets all of the land use regulations, ordinances, etc. The State application is what prompted all of this, and Margo explained that the Planning Board reviews these applications and responds, but in this case, with this not being an allowed use for
the district; this had to come before this Board first. The application is for a “Retail Vehicle Dealer”, and is in the Land Use Office awaiting a determination.
Mr. Baker clarified that in terms of traffic, with there being only three or four cars there, people would pull into his yard from Rt. 119 and park there to look at the cars and it would not be like a large parking lot that sees a lot of traffic. Mr. Quesnel said that was correct. Mr. Baker asked about signage and Mr. Quesnel said that he would like to have a sign. Mr. Baker questioned what this would be subject to and the Administrative Assistant explained that there is a sign permit application available from the Selectmen’s Office and the Selectmen are the ones that act on those, however, the Planning Board would address this subject as well during the Site Plan Review process for this business. Mr. Baker clarified that a Site Plan Review before the Planning Board
was required and Margo said that was correct.
Ms. Porter asked Mr. Quesnel if he planned to do any work on these cars and Mr. Quesnel said that there would be no engine work, straight sales only, and then explained his business in Vermont which is a Fast Lube Center. Mr. Quesnel plans to buy cars at auctions and sell them “as is” from his home. Ms. Porter asked about the garage at his home and if it was set up to work on cars to which Mr. Quesnel said that it wasn’t. Additionally, there are currently three vehicles on this property that are owned by people that live there.
Ms. Porter questioned if there were wetlands in the vicinity of this property. Mrs. Roberts noted that there is a high spot in this particular area but if you go further down Scott Pond Road there are wetlands. There is also a swamp across the street on the other side of Rt. 119. Ms. Porter noted the possibility of gas or oil leaking from vehicles. Mr. Mattson asked if the State would come in and inspect the property and Mr. Quesnel said that they would inspect before they would issue a license. Ms. Porter asked if there is a school bus stop right there at the beginning of the road to which Mr. Quesnel said that there is but he does not think that there would be any kind of visibility problem whatsoever.
Ms. Porter asked if there were any abutters present for this case to which there were none. Mrs. Roberts noted that there is a letter from one abutter in the file stating that she had no objection to this proposal. It was noted that there are really only four neighbors with homes in the area.
Ms. Porter clarified that he owned the business in Brattleboro and asked how many hours per day he would be at his home. Mr. Quesnel explained that he is home all day and although he would rather be in Brattleboro all day, his legs will not allow him to stand like that.
Mrs. Knight asked how he would advertise besides the sign and Mr. Quesnel said that he would utilize the newspaper. Ms. Porter asked if Mr. Quesnel planned to sell cars in Vermont also and Mr. Quesnel said that he only plans to sell them from this location. Mr. Quesnel said that he had thought about doing this before but was more focused on the lube center.
The Board spent a little more time reviewing the diagram that Mr. Quesnel provided and Margo noted that there are a few color photographs showing a couple of cars and where they are located on the property. The Board noted that the driveway and some of the yard is crushed stone. Ms. Porter clarified that the crushed stone was put down already to which Mr. Quesnel said it was. Ms. Porter asked Mr. Quesnel if he has sold cars already and Mr. Quesnel said that he sold one car privately, and there is one car sitting there currently as a consignment car, which he said he would do. Mr. Mattson clarified that any consignment cars would be included in the maximum number of four cars.
Ms. Porter asked Mr. Quesnel how long he had lived in his house and if he had ever seen any accidents outside of the house. Mr. Quesnel said that he has lived there for 28 years and yes, he has seen quite a few accidents and noted that it is like a drag strip through there sometimes. Ms. Porter asked Mr. Quesnel if people were going to be able to see the cars coming down from Fullam Hill Road, to which Mr. Quesnel said that they probably wouldn’t until they were right there. Ms. Porter asked Mr. Quesnel if he has looked at any alternative areas in town to do this, such as the Kennedy building parking lot or the parking lot at Concord Industries. Mr. Quesnel said that he had not because he cannot afford to do this. Ms. Porter asked how long he had been involved with
this process so far, in that trees have been cut and crushed rock has been put down. Mr. Quesnel said that he just took few small trees down. Mr. Mattson asked if what had been done was all that would be done, and that there would not be any expanding. Mr. Quesnel said that he wasn’t going to do anything more with the property.
With there being no further questions or discussion, Chairman Baker closed the public hearing at 7:55 p.m., and referred the Board to the mandatory findings for a variance to review and vote on.
Before granting any variance from the provisions of this chapter, the Board of Adjustment shall make specific findings that all of the following conditions are present:
1.) No diminution in the value of surrounding properties would be suffered – Ms. Porter stated that she doesn’t believe that a car lot would enhance the value of a property and it is hard to judge whether or not it could diminish it, but having cars sitting around in yards in a residential neighborhood to her would be diminishing. Mrs. Roberts said that the condition of the cars should be considered as a lot of cars in disrepair is different from a few complete cars. Mr. Mattson said that the condition of the property and the way that it is kept should be considered also. Ms. Porter questioned what would happen ten years from now, or with the next property owner, and noted that a variance stays with the property. Mr. Baker noted that they could put some restriction on this with regards to
aesthetics. The Board voted 3-1 in favor of this condition.
2.) Granting the variance would be of benefit to the public interest – Ms. Porter clarified that “public” means other than the property owner. Mrs. Roberts felt that in view of the way the property has been kept over the years, she does not see that this would be a detriment and that it would be a benefit. Ms. Porter said that she has concerns about the traffic in the public interest, especially coming from Fullam Hill Road, and it is not a safe place to pull into. Ms. Porter noted that there are traffic problems and accidents there almost every year and she is concerned about this. Mr. Baker noted that typically, in the purest sense of a retail establishment benefiting the public interest, from that respect, would be the opportunity to buy a car locally, but he thinks that one would have to
have an appropriate site. The Board voted 2-2 on this condition; 2 in favor of and 2 against.
3.) Denial of the variance would result in unnecessary hardship to the owner seeking it – Ms. Porter stated that she did not feel that this had been proven by the evidence provided and this proposal sounds like a potential second source of income, and she is not sure that this has been proven in terms of hardship. Mr. Baker said that he thinks that there are two extremes; one being use of the property and then the other which there has been a lot of court discussion over is financial hardship which he thinks can be viewed as a hardship. Ms. Porter noted that a key word in this condition is “unnecessary”. Mrs. Knight asked Ms. Porter what she meant by “unnecessary” and Ms. Porter explained that she does not know if denying the variance would create unnecessary hardship to the owner
seeking it. Mr. Baker tried to explain that there being no other use of the land is the most stringent interpretation of this, meaning that if this were denied, the land would be good for nothing else so they would be creating unnecessary hardship. Mrs. Roberts said that she felt that unnecessary hardship would result from denying this and Mr. Mattson agreed. The Board voted 2-2 on this condition; 2 in favor of and 2 against.
4.) By granting the variance, substantial justice would be done – Mr. Mattson said that in listening to the applicant talk about his business in Vermont and this proposal, which is totally different as he is looking to do something else because of physical conditions, he sees that he has an opportunity to do something at home and make some extra money in some way. Mr. Mattson continued and said that just hearing this presentation and seeing the pictures tells him something; he is not just clearing land for a lot of cars, he has plenty of land there with the driveway going a good distance back and he doesn’t think that parking a few cars there would be an issue. Ms. Porter agreed that the applicant has kept his property well, but part of this means that the variance would go with the property. Mr.
Mattson said that he would find this as something nice would happen there, and that it would not be a junkyard, and they could put stipulations on this. Mrs. Roberts stated that the applicant has lived there for 28 years and he has kept his property up, and in viewing the photographs and listening to the applicant, she would have to agree with Mr. Mattson. Mrs. Roberts added that she understands that they have to consider the future but she thinks it is very difficult to project your ideas for many years in the future and for them to think about a worst case scenario that could happen. Ms. Porter said that she thinks that it is their job to consider this and Mrs. Roberts asked about the best case scenario. Mr. Baker said that he thinks that this condition kind of goes hand in hand with the next one regarding spirit and intent of this chapter. Mr. Baker continued by saying that granting this would say that substantially, this proposal complies with the rural district and the
character of the district, so they are looking at allowing a home business with external exposure which then breaches retail, and they need to think about what they are trying to accomplish with the rural zone. Mr. Baker said that you have to put all of the information together and create your own picture, which can be a difficult decision, and added that these are tough decisions. Mrs. Roberts said that one would have to question how much the parking of four cars would transform that neighborhood. The Board voted 3 in favor of and 1 against this condition.
5.) The granting of the variance would not be contrary to the spirit of this chapter -
Ms. Porter said that this condition is largely similar to the last one. Mr. Baker said that they need to look at the application and the zoning in place, and the fact that the request is not a permitted use in the rural zone; however, the Board is given the power to grant this when conditions warrant it. The Board voted 3-1, three in favor of and one against on this condition.
Mr. Baker explained that two of the five conditions have a tie vote, and in order for them to consider a variance for this property, all five of the conditions need to be met. Mr. Baker asked the Board if they had any further discussion on these points, conditions two and three, the benefit to the public interest and the unnecessary hardship, to be considered.
Ms. Porter said that she does not feel that this is a terrible business, but she does feels that there are more appropriate sites in town, places with pavement that is not being used. Mr. Mattson said that he thinks that this is an opportunity for the applicant to work out of his home. Ms. Porter said that she understands and she works out her home. Mrs. Knight said that this is difficult because the property is zoned rural, and she feels that that it is good to encourage business, but the future use as discussed, is important too. Mr. Mattson spoke a little about when the zoning ordinances went into effect and how times change, and that sometimes the ordinances do not meet the needs any longer, and are prohibitive.
Mr. Baker told the Board that they need to conclude this case and said that he would entertain a motion with regards to this application, noting that two of the criteria failed to obtain the required vote.
Coni Porter moved to deny the application as submitted. Edwin Mattson seconded. Mr. Mattson asked about the appeal process and Mr. Baker explained that the applicant could appeal the ruling of the Board, on the basis of new information to be submitted to the Board that had not been considered, but not on the basis of there not being a full Board. Mr. Baker stated that there was a motion on the floor and asked for a vote. Ms. Porter and Mr. Baker voted in favor of the motion and Mrs. Roberts and Mr. Mattson did not vote. Mr. Mattson asked if there was anything else that the Board could do. Mr. Baker said that before the motion was made he asked if there was any further discussion from the Board on the two conditions that failed to receive the necessary votes, and the only thing that they could do would be to reconsider
those conditions and change the votes in order for the Board to grant the variance. Mr. Mattson asked if they could vote again and Mr. Baker said that before a motion is voted on there is always an opportunity to reconsider their votes on the conditions, so this is an opportunity to go back and bring something else up or discuss something on any of those points that may convince one of the voting members to change their mind.
Mrs. Roberts asked from the standpoint of appearances, if there is anything different from what Mr. Quesnel wants to operate than a family with several children and having four or five cars in their yard. Mr. Baker said that in that case those cars would be registered vehicles. Mrs. Roberts questioned from the standpoint of what it would look like, how this is different, and what it would do to the other people in the area. Ms Porter said that the difference is that they have the opportunity to regulate this and the Selectmen would have the authority to regulate the other in terms of unregistered vehicles and appearance. Mrs. Knight said that the Selectmen would have to regulate a situation if there were more than the acceptable number of unregistered vehicles. Ms. Porter
added that these other people may or may not have a sign out front inviting people to stop and look at the cars. Mrs. Roberts said that she also thinks that the signage would have to be looked at so that it was not a distraction to drivers. Ms. Porter questioned if there was any control over signage and the Administrative Assistant said that the town does have a sign ordinance, to which Mr. Baker added that the applicant would have to meet with the Planning Board and if the sign exceeded the ordinance then they would go before this Board to seek a Special Exception.
Mr. Baker said that there are only two conditions that he voted no on; the two that are deadlocked, with the first one relating to the public interest, to which he said that he really sees no benefit at all and that this would detract interest from the general public, and he also thinks that the hardship situation is solely that, and there is nothing else other than additional income, and with that being the sole issue, he could not in good conscience say that this causes unnecessary hardship.
Ms. Porter said that this seems like a recent idea that someone wants to try, but the difference with this idea, in her opinion, is that this one would impact the area, and she thinks that there are a lot of different things that you can do in your house that would not impact traffic or the area.
Mr. Mattson said that he has trouble understanding the impact, the effect perhaps, but he is not convinced that this would impact anything; he is trying to picture it and he just doesn’t see it in this area. Ms. Porter said that her problem is not with what Mr. Quesnel would do but the future use. Mr. Mattson noted that they could put stipulations on this and Ms. Porter said that she does not feel that they could stipulate enough. Mr. Mattson said that they could limit the number of cars and have him come back before the Board if additional cars are wanted. Mr. Baker noted that this would become an enforcement issue. Mrs. Knight questioned if stipulations would be in the Planning Boards’ jurisdiction and Mr. Baker said that this Board could set stipulations in
what they find to be acceptable to grant a variance, like the maximum number of vehicles. Mr. Baker said that this application is in conjunction with a dealer’s license, unregistered vehicles and a business use. It was noted that a dealer’s license has to come from the State and that license would allow him to go to auctions and purchase cars. Mrs. Knight said that she thinks that the applicants’ objective is to run a business and have a license and do this formally. Mr. Quesnel told the Board that the other thing with renting space for the cars is that he may have to sit with them for a week until he sells one, but at his home at least he is already there. Mr. Mattson asked if the State would come and inspect the location, entrance, etc. Mr. Quesnel said that they would but not until the town tells them that he complies with their regulations.
Mr. Baker told the Board that they have discussed these issues further and they are still where they were at before in that a motion has been made and seconded, and they need to proceed to a vote. Mrs. Roberts said that she doesn’t see that they have any recourse and Mr. Baker said that they still have two conditions that have not been met. The Board voted unanimously in favor of the motion to deny the variance.
Mr. Baker told Mr. Quesnel that this is a very difficult situation but if he feels that he can appeal this decision with additional information then he can do that. Ms. Porter said that if the State looked at the property and they feel that it is safe or they would do something to the road, etc., then that would be new information to present to the Board. Mr. Quesnel said that you are probably talking about one or two people stopping there to look each week. Ms. Porter tried to explain that if they grant this they grant it for everyone that ever owns that property.
Mr. Quesnel thanked the Board for their time.
Josephine Plaszewski was present for this meeting tonight and the Administrative Assistant explained to the Board that Mrs. Plaszewski filed an application with her yesterday for a Special Exception so that she can relocate her antique shop due to a recent fire. Terry Silverman, Chairman of the Planning Board and Michael Methe, Chairman of the Zoning Board of Adjustment asked Margo to facilitate the applications and meetings as soon as possible in an effort to assist Mrs. Plaszewski. A special exception is needed because she is looking to relocate her business at the Concord Industries building, which will also require Site Plan Review. The Board was very agreeable to decide on a date for another meeting this month and agreed to meet on Wednesday; January 28, 2004 at 7:30 p.m. Mrs. Plaszewski thanked the Board.
Administrative Work
*** Review and approve October 23, 2003 Meeting Minutes and October 23, 2003 Non-Public Session Minutes – Jane Roberts made a motion to accept the minutes of October 23, 2004 as written. Coni Porter seconded. A unanimous vote in favor of the motion was taken. The non-public session minutes for October 23, 2003 were postponed until the next meeting when Chairman Methe would be present.
*** Second vote to change the meeting night for the Zoning Board of Adjustment as required per the Boards’ Rules of Procedure. – Coni Porter made a motion to change the meeting night for the Zoning Board of Adjustment to the second Tuesday of the month when there are applications before them. Jane Roberts seconded. A unanimous vote in favor of the motion was taken.
*** Review drafted ZBA report for the Annual Report – The Board read the drafted report that Margo prepared. Daniel Baker moved to accept the annual report of the Zoning Board of Adjustment as written. Coni Porter seconded. A unanimous vote in favor of the motion was taken.
Correspondence
*** Notices of Decision issued by the Planning Board (Nov.-Dec.) - Reviewed
*** Copies of letters sent by the Selectmen’s Office - Reviewed
Miscellaneous
*** Information from the Administrative Assistant re: proposed amendments to the Land Use Code to be voted on by ballot at Town Meeting on March 9, 2004 – Margo explained the amendments that are being proposed by the Planning Board and the adoption of a Table of Accessory Uses that would be inserted after the Table of Principal Uses in the Land Use Code Book.
Acting Chairman Daniel Baker adjourned the meeting at 8:53 p.m.
Respectfully submitted,
Margo M. Best
Administrative Assistant
Land Use Boards
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