Zoning Board of Adjustment
Meeting Minutes
July 13, 2004
Members present: Edwin Mattson, Jane Roberts, Margaret Wittenborg, Coni Porter and Carl Goldknopf; Alternate
Members absent: Daniel Baker and Gerald Neiman
Selectmen present: Susan S. Silverman
The Administrative Assistant advised the Board that Daniel Baker would not be attending the meeting this evening and that Gerald Neiman had hoped to be present. The Board waited until 7:45 p.m. to see if Mr. Neiman would attend and chair the meeting. At 7:45 p.m. Edwin Mattson agreed to act as Chairman and opened the meeting.
Public Hearings
7:30 p.m. Case #04-10: Laura Eddy is appealing an Administrative Decision issued by the Planning Board on June 1, 2004 relating to the interpretation of the Town of Fitzwilliam Subdivision Regulations, Chapter 221; Article V, Section 23. The subject property is located at 763 Templeton Turnpike Road, Tax Map 3; Lot 30 in the Rural District. – Mr. and Mrs. Eddy were present. Acting Chairman Mattson told Mr. and Mrs. Eddy that the Board is in receipt of a memorandum from their Administrative Assistant regarding hearing this application tonight. Mr. Mattson explained that Daniel Baker, acting Chairman of the Board contacted Margo Best yesterday with some questions about this application and asked her to obtain a legal opinion regarding the Boards’ ability to hear this case. Mr.
Mattson continued noting that Attorney Susan Slack from the New Hampshire Municipal Association has recommended that the Board not hear this application because they have no jurisdiction under RSA 676:5 to rule on this application because there was no interpretation of the zoning ordinance made by the Planning Board. Mr. Mattson noted that the Board members have reviewed both sets of meeting minutes from Mrs. Eddy’s appointments with the Planning Board and they clearly state that they were preliminary consultations to discuss subdividing land. Mrs. Eddy did not file an application and because there was no formal application or public hearing, the Planning Board should not have voted that this proposed subdivision would not be granted at this time. A preliminary consultation is merely an informal, information gathering appointment and voting should not occur.
Margaret Wittenborg moved that the Board dispose of this case as they do not have jurisdiction under RSA 676:5 to hear this case and there is no interpretation of the zoning ordinance to be made. Jane Roberts seconded the motion. With their being no further discussion, the Board voted unanimously in favor of the motion.
The Board apologized to Mr. and Mrs. Eddy for the error that had been made on the Towns’ part. Mrs. Eddy sought guidance as to what she should do and Margo Best; Administrative Assistant, explained to Mrs. Eddy that she needed to file an application for Subdivision through the Planning Board and go through that process. If her application is denied she may then appeal that decision to the Zoning Board of Adjustment. Mrs. Eddy asked about the fees that she paid for this application and Margo explained that she spoke with the Town Administrator about this today and it was agreed that if Mrs. Eddy was going to pursue the subdivision and it is denied, then when she appeals that decision the application fees would be waived since she already paid them. If Mrs. Eddy decides
not to pursue the subdivision then the Town would reimburse her the fees that she paid. Mrs. Eddy was agreeable to this and stated that she intended to pursue the subdivision. Margo told Mrs. Eddy that she could come in anytime during open hours to pick up the application that she needs. Mrs. Eddy thanked the Board for their time.
7:50 p.m. Case #04-11: Rotaan Inc. d/b/a Holman Landscaping Materials requests a Variance under Article III, Section 127-11 A. of the Fitzwilliam Land Use Regulations to allow the display and retail sales of sheds and gazebos as well as landscaping materials on property located at 590 NH RT 12 South, Tax Map 8; Lot 14 in the General Industrial District. – Acting Chairman Mattson opened this public hearing at 7:52 p.m. and read the case title aloud. Mr. John Holman was present.
Mr. Mattson asked Mr. Holman to explain what he is doing and what he is applying for. Mr. Holman told the Board that basically they can see what they are doing there and nothing is hidden. Mr. Holman said that people come in to buy materials and are attracted by the sheds. Mr. and Mrs. Holman order the sheds for people from Cheshire Sheds out of Keene, who delivers them and sets them up for the customers. Mr. Holman said that they do not make a lot of money off of this, they earn $50.00 for each shed they sell, and they are not interested in delivering them, setting them up, etc. It is merely an attraction for the business.
Mr. Mattson clarified that the Planning Board had granted the operation to take place at this location, but once the sheds came in, they referred him for a Variance for the retail sales. Mr. Holman said that was correct. Mr. Mattson then noted that Mr. Holman was seeking a Variance for the retail sales in the zone. Ms. Porter clarified that Mr. Holman’s business had been approved under a lumber yard to which Mr. Holman said was correct and then added that he is here to correct this and get everything squared away.
Mrs. Roberts said that it was her understanding that this was for materials rather than manufactured products. Mr. Holman said that it would be like taking 100 sheds on a pallet and having them there, and Mrs. Roberts said that that is a manufactured product, something that is made up already; such as sheds and beach umbrellas and even birdhouses; they are manufactured products and not basic materials such as crushed rock and gravel. Mr. Holman said that was correct and then added that rather than have a lot of them come in on skids, he only wanted a few to display that look nice. Mr. Holman then told the Board that his abutters asked him if he needed them to be here tonight and they are all very happy with the way that he and his wife have made the property look, etc.
Ms. Porter referred to the Planning Board meeting minutes of January 6, 2004 and read aloud the following: “Chairman Silverman asked for a quantity to be sold and Mr. Holman said that the total at one time would not exceed 200 yards. Mr. Holman explained that he is basically looking to service people that go to his home on Saturdays and Sundays looking for materials. The loam, sand, etc., would be brought to this site to be stored and sold from, and there would not be any excavating done at this site. Mr. Holman added that you would not be able to see the piles of dirt, etc. from Rt. 12 because this operation would be set back off of the road 30’ – 40’ and the parcel is buffered.” Ms. Porter asked Mr. Holman how far back this operation is set
back and Mr. Holman said that it is 75’ – 80’ back. The reason this can be seen is because Mr. Holman did some clearing and explained that he has planted other things but they will take time to grow. Ms. Porter said that she thinks that it looks nice but it does not agree with what these minutes say.
Mrs. Wittenborg reviewed the definition of retail store and questioned if this fit as there are no sales being conducted within a building and she also questioned if a shed is a horticultural product. Mr. Holman mentioned that a pretty popular shed is called a “potting shed” which is a landscaping shed. Mrs. Wittenborg expressed concern over the limiting language of “within a building” and confirmed that Mr. Holman was not selling anything within a building. Mr. Holman said that he is not. Ms. Porter noted that this would explain why the Planning Board approved this under lumberyard and did not grant this for a retail place, which would then have her asking about parking and other related questions which would go along with a retail space. Mr. Holman
said that he doubts that it would be like that.
Mr. Mattson asked if there were any other questions. Mr. Goldknopf said that he thinks that the biggest question is, are sheds part of a lumberyards’ sales? Mr. Holman said that most every lumber yard he goes to sells sheds and he thought that this would be okay. Ms. Porter asked if they could clarify this and asked Selectwoman Susan Silverman if she could speak to that. Mrs. Silverman said that she is reading the same minutes that the Board is reading and the Variance is required because the retail sales is not an allowed use in the General Industrial District. Ms. Porter clarified that the Planning Board did not give Mr. Holman a bypass for retail sales, just a bypass for a lumberyard. Mr. Holman said yes. Mr. Mattson noted that the Variance is required because it is
not an allowed use.
Mr. Mattson asked Margo Best, Administrative Assistant for the Land Use Boards about the other shed business case that they heard. Mrs. Silverman said that that property was in the Light Industrial District where retail sales are allowed. Margo stated that the Planning Board referred this under 127-11 A. because it is the closest thing in the ordinance; it is not necessarily a store but it is retail sales. Mrs. Silverman added that she thinks that the reason the Planning Board classified this the way that they did is because when John originally went before them it was about raw materials being stored and they tried to find something that fit with what he had and was allowed in the General Industrial District. She added that it is not a lumber yard, but now with the sheds,
it has changed the use of the property to retail sales and it has become something else. Mrs. Wittenborg questioned if they were to reclassify this and Mrs. Silverman said no, and that the Variance would allow him to expand this to include retail sales. Ms. Porter asked about the antique store next door which Margo noted was grandfathered. Mr. Holman stated that he is surrounded by retail. Mrs. Silverman explained that one of the problems with that Rt. 12 corridor and with the zones is that the original concept was to try and keep the look that was there, and not create this whole mixed use thing, but different districts were formed and that is why certain things are allowed in certain areas and not in others because they do not want to have a strip mall sort of look, so there is a mixed use of dwellings, retail sales, etc. She added that there are grandfathered uses all over town and when you adopt zoning you adopt it with what is already there. Mrs. Silverman noted that the
antique store is actually in a different zone, and it is the way that it was grandfathered in. Mr. Holman’s property is the last lot in the General Industrial District and then it changes to the Rural District where residences are allowed.
Mr. Goldknopf noted that if they grant this as a retail store, then John could sell anything he felt like selling. Mr. Mattson said that this is for the display of sheds and gazebos. Ms. Porter asked if this approval would stay with the land or the owner and Mrs. Silverman said that it would stay with the owner unless it is sold, in which case it would have to be picked back up within one year. Ms. Porter asked Mr. Holman if he is considering selling plants and trees and Mr. Holman said that everyone is asking them to do that but he thinks that it would be pretty hard to do with having larger businesses to compete with and he really doesn’t want to get into that. Ms. Porter said that if this is granted it would probably be specific to his request. Mr. Mattson clarified
that they are interpreting this as Mr. Holman is specifically requesting the display and retail sales of sheds and gazebos. Mr. Goldknopf noted that the application has additional information written on it that says “any and all materials and items adding beauty and enhancement to anyone’s landscape”, which could mean a swing set for example. Mrs. Silverman said that this could cover a lot of things. Ms. Porter asked Mr. Holman if this was correct. Mr. Holman said yes but it is not for flowers, but sometimes when gazebos come they may come with items such as swings, chairs, etc., and they are just trying to cover this. Ms. Porter said that it sounds to her like they are not looking for a specific Variance but to become a retail establishment that would be seasonal. Mrs. Wittenborg noted that according to the application, the request to display sheds and gazebos appears to be secondary to the request for commercial retail sales of any and all materials and items
for one’s landscape. Mrs. Wittenborg added that this is a very broad request and she tried to determine what exactly Mr. Holman is asking for. Ms. Porter asked Mr. Holman if he was aware that one of the criteria to be met is hardship. Mr. Holman said that he is trying to make this work and you either survive or die. He added that in order to make this work, he needs the attraction of the sheds; the sheds are a draw, and if they do not get enough people in there to sell to, then the business is going to die. Mr. Holman added that it is tough out there for businesses right now.
Mr. Goldknopf added that he sees Mrs. Roberts point about whether or not a shed falls under construction materials and he reviewed the definition of a lumber yard noting that sales are allowed. Mr. Goldknopf stated that Mr. Holman can sell things being a lumberyard, except the question is what can he sell? Construction materials and/or building materials, and he asked what a shed is considered to be; construction material or building material? Mr. Holman told the Board that basically, the Planning Board said that he could sell building material or the sheds if they were in a package and he is here because he has the sheds displayed. Mr. Goldknopf said that this basically becomes retail sales and he had been approved under 127-12 D. but is now seeking to be approved under
127-11 A. retail sales. Mrs. Wittenborg noted that the Board is required to act on what is written on the application before them, and this application is requesting commercial retail sales of any and all materials adding beauty and enhancement to anyone’s landscape, and then it also asks to display sheds and gazebos, so she is trying to determine his intent with this application, because they do not have it here clearly. Mr. Holman said that he was going for sheds and gazebos but his question is that some of these come with other items like chairs or a swing, and that is why his wife added language to the application; to clarify that these other items would be allowed. The Board then discussed whether or not prefabricated items were to be considered construction materials, with Mr. Goldknopf noting that you can purchase prefabricated roof trusses at a lumberyard and he questioned how this is different than a prefabricated shed. Mrs. Wittenborg said that they are on two
different topics here and she is trying to determine what exactly they are voting on here; what exactly John is asking for. She added that he is here because he is selling sheds but the application is not just for sheds; they have to define his Variance with the language he used in his application, and this is two very different requests. One request is for the sheds and gazebos and the other is for commercial retail sales of any and all materials and items adding beauty and enhancement to one’s landscape. Mr. Goldknopf said that he is questioning the same thing and added that he is not sure if Mr. Holman should even be here. He reviewed again that John had been approved as a lumberyard and said that it appears to be ones interpretation of whether or not sheds were a part of a lumberyard. Ms. Porter noted that it appears that they want to have on an outside retail store, and this is so broad and harder to satisfy the variance criteria. Ms. Porter asked Mr. Holman about what
he sees for the future with this business, other items to be sold and the need to obtain additional approval. Mr. Holman said that they do not have any “and thens” at this time with regards to other items to sell. Mrs. Roberts said that said that she can see where John is coming from and she understands that you cannot see everything coming down the road, but agreed that they have to act on specific information. It was suggested that perhaps the Planning Board missed the retail sale of construction materials. Selectwoman Silverman told the Board that it is their job to find the place where something doesn’t fit in the ordinance and the Planning Board worked with the information that they were given by John at the first preliminary consultation. She continued noting that this operation was classified as a lumberyard because that is the closest thing within the ordinance and the Planning Board didn’t send John here to begin with because they tried to work with
him to figure this out. The transactions were occurring at his house and that is not really not the same as a retail situation where someone sits there all day conducting retail sales, which is what is occurring now. Mrs. Holman is there all day working, money is changing hands and they are operating a retail business. The business has evolved into something different. Margo noted that Mr. Holman is requesting the Variance because retail sales are not allowed in the General Industrial District and she explained that when Mr. Holman first went before the Planning Board he mentioned raw materials; dirt, gravel, rock, etc., and she does not remember if mulch was even mentioned but we do not have a description for everything, and the Planning Board has to match up what the applicant is telling them the best that they can with what they have. Ms. Porter asked if John could appeal the Planning Board’s decision if the Variance were denied and Margo noted that he could appeal this
Board’s decision by requesting a rehearing, provided that he has new information to present.
Steve Filipi, resident, was present and told the Board that he sees the predicament and noted allowing the lumberyard which allows for some retail, and he too would question if the sheds should be considered a part of that although most lumberyards he deals with sells sheds. He added that he can see the concern in granting the Variance but added that what John is asking for seems to fall under lumberyard.
Mrs. Wittenborg again mentioned the broad definition of landscape materials and asked about lawn mowers, garden statuaries, etc. Mr. Holman stated that he has no intention of selling items like this. Mrs. Wittenborg questioned what the Planning Board was thinking in terms of definitions when the ordinance was written. Mrs. Silverman said that the ordinance has been revised and it is a working document. Ordinances and definitions need to be revised as they are used.
Mrs. Roberts noted that the application is under 127-11 A. for a retail store but they are talking about a lumberyard and she asked if this could be changed. It was noted that Mr. Holman is already approved under lumberyard. Ms. Porter asked Mr. Holman about parking. Mr. Holman said that he has enough room for 50 cars easily and this is not an issue. Ms. Porter then asked Mr. Holman if he could address the mandatory finding that the Board has to review regarding unnecessary hardship. Mr. Holman said that the business either makes it or it doesn’t and if it fails then there is another business with three employees that has failed. Mr. Holman added that he looks at all of the businesses in town that are struggling or failing and he is just trying to make this business
work. Ms. Porter clarified that what Mr. Holman was originally doing wasn’t working for him. Mr. Holman said that was correct, the sheds are a draw for the business. People come in and see the building with flowers around it and they think it looks nice and it goes hand in hand with the business. The business would not survive without the sheds.
Ms. Porter questioned putting a stipulation on this and the Board then discussed what items would be allowed, etc. The Board asked Margo about voting and she told them that the application has to meet the criteria and they have to find in favor of these items for the Variance to be granted. Margo referred the Board to their books and the information regarding Variances. Margo pointed out the section on hardship and reasonable use and suggested that they review the information. Mrs. Wittenborg questioned using the Simplex rule and Ms. Porter read the information regarding reasonable use. Margo suggested that they review hardship. Mrs. Wittenborg said that they are addressing some limitations that are apparent in the quality of the ordinance and because lumberyard is not as
expansively defined as it might be and addressing the question that has to do with a specific request or specific use that may in fact fall within that definition and qualify it in a way that might. Mrs. Silverman stated that the application before them is for a Variance for retail sales and it doesn’t matter if they think that it should be there, the application is for retail sales in a district where it is not allowed, and that is what they have before them. Mrs. Wittenborg questioned if the retail sales are for something that in fact is allowed by definition. The Board agreed that this is what they are stumbling on. Mr. Goldknopf said that he does not know why John is here. Mrs. Wittenborg doesn’t understand why lumberyard isn’t better defined. Mrs. Silverman told the Board that she thinks that they are getting hung up on the fact that it says lumberyard and reminded them that this was given because this is what John first described to the Planning Board, it
fell under this category because this is what most closely fit his proposal and there is no definition for landscape materials. Coni clarified that originally the Planning Board did not know that money was going to be exchanged here and Mrs. Silverman said that was correct and she got that from the minutes, as she was not there. Mr. Holman said that he thought that he was pretty clear in what he said but maybe not, and he thinks that this should be a simple thing to take care of. Mr. Goldknopf questioned changing the original use that was allowed by later restricting that use by not allowing him to sell sheds and gazebos, and it seems to him like the Planning Board is trying to restrict his use after they gave him use of the property as a lumber yard. Ms. Porter added that the applicant is now asking for a larger use of the property with more and different things to be retailed. Mr. Goldknopf said that now they are talking about restricting the Variance which compounds the issue.
Mrs. Wittenborg noted that the Planning Board voted unanimously to allow him to conduct retail sales of lumberyard materials. Mr. Goldknopf does not feel that this should be before this Board and spoke about all of the case law information that they have that talks about this being granted and why and that not being granted and why, and all of the information that Margo gives to them to review. Mr. Goldknopf also mentioned the letter that was sent to Mr. Holman stating that the sale of sheds and gazebos was not allowed and stated that he should not have received such a letter.
Edwin Mattson moved to grant the Variance for any and all landscaping materials and sheds and gazebos. Carl Goldknopf seconded. Mr. Mattson moved onto the five mandatory findings where the following observations and statements were made:
1.) No diminution in the value of surrounding properties would be suffered - The Board agreed unanimously that there would be no diminution in the value of surrounding properties. Ms. Porter noted that the value of properties would be enhanced.
2.) Granting the Variance would be of benefit to the public interest – The Board agreed unanimously that granting the Variance would be of benefit to the public interest.
3.) Denial of the Variance would result in unnecessary hardship to the owner seeking it - Mr. Goldknopf stated that because of the way this case came before them he feels that denying it would be a hardship to the owner. Ms. Porter adding that denying the Variance because of the zoning restriction as applied to the applicants’ property would interfere with the applicants’ reasonable use of the property considering its unique setting; second, due to the retail sales being conducted next door and all around him and third granting the Variance would not injure the public or private rights around him. Mrs. Wittenborg added that the applicant was approved under Section 127-12 D. and he had the implicit right to conduct retail sales, and whether or not money was supposed to exchange hands at his house
or at his place of business is irrelevant and if they do not grant the Variance it would result in unnecessary hardship to the owner. The Board agreed unanimously with these findings.
4.) By granting the Variance, substantial justice would be done – The Board agreed unanimously with this item.
5.) The granting of the Variance would not be contrary to the spirit of this chapter – The Board agreed unanimously with this item.
Mr. Mattson stated that the Variance is granted and a Notice of Decision would be sent to Mr. Holman. This public hearing was closed at 9:07 p.m.
Administrative Work
*** Review and approve June 8, 2004 Meeting Minutes – Coni Porter moved to accept the minutes of June 8, 2004 as written. Jane Roberts seconded. A unanimous vote in favor of the motion was taken.
*** Election of Officers – The Board postponed action on this until Dan Baker and Gerry Neiman were present.
*** Discuss revising application – Margo told the Board that she was going to suggest adding a new line to the beginning of the application referencing what the application was for and noted that over the past few meetings, Dan Baker had questioned what the application was for and she thought that adding something might clarify this. The Board agreed to table this until the next meeting that Dan was present for.
Correspondence
*** Notices of Decision issued by the Planning Board (June 2004) - Reviewed
*** Invitation from the Fire Department to set up a table at the Annual Fun Fair - Reviewed
Selectwoman Susan Silverman told the Board that she thinks that Margo does a great job with providing this Board with information that will assist them when hearing cases.
Mr. Mattson moved to adjourn at 9:20 p.m. Coni Porter seconded. A unanimous vote in favor of the motion was taken.
| 
