Members Present: Jane Roberts, Chairman, Ashley Fletcher, Edwin Mattson, Coni Porter, Gretchen Wittenborg, alternate Carl Goldknopf and Selectmen’s representative Andy Clukey.
Members of the public were present and are identified in the context of the cases that interested them.
The meeting was called to order at 7:32 PM.
Roberts outlined Board procedures for public hearings and read the first case.
Case #05-13: Ken Terry requests a Special Exception under Article III, Section 127-11 G. to operate a clock repair, service and sales business in the former Bateman building where he resides, Route 12 South, Map 34, Lot 28, General Business District.
Mr. Terry responded no when asked if he had anything to add to his application. Roberts asked if there was anyone in favor of the appeal. Mr. Rettig, as owner of the building, said he was told at the time he purchased the building the business and residential use was permissible, but the exception lapsed when the building was empty for more than a year. He is in favor of the appeal.
Mr. Hunter, Stateline Campground, feels the business is one the Town would want and his wife agreed. Mr. Fitzwilliam said he runs a similar business in Town and he welcomes Mr. Terry’s business.
No one was opposed to the appeal. Porter asked how many cars would be in the lot at any one time and Mr. Terry estimated no more than two. Mattson asked if Mr. Terry had been to the Planning Board and if they had any concerns. Mr. Terry said he had met with the Planning Board and they had no concerns.
Roberts closed the hearing and the Board proceeded to a unanimous vote of aye on the four mandatory findings for a SpecialException, finding the fifth not applicable. Porter moved, Mattson seconded and the Board unanimously granted the Special Exception. A Notice of Decision will be sent to appropriate parties.
Case #05-18: Ronald Sargent, Jr. requests an Area Variance under Article V, Section 127-17, Table of Standard Dimensional Regulations, to build a garage with less than the required setback, located at 271 West Lake Road, Map 6, Lot 32-3, Rural District.
Mr. Sargent wants to construct a two and a half car garage, with room for vehicles and a workspace. The proposed building will be 30 X 24 feet. Given the position of his home, well and septic system, he believes there is only one place for the garage, without incurring great cost or changing the landscape. To put the garage in back of his home, he said he would have to build a new driveway to avoid the septic and leach field on one side and his well on the other. He estimated a 100 foot driveway with an entrance off Sandy Beach Road would be necessary. His current plan shows a setback of 40 feet from West Lake Road to the garage, which would be positioned in front of and perpendicular to his home.
Fletcher asked if there was an existing garage. Mr. Sargent replied there is one under his house but it is too small for his vehicles and equipment. Mr. Sargent said he would need a variance even if he was to turn the garage 90 degrees and would entail restructuring his driveway to enter the garage.
Roberts asked if anyone was in favor of the appeal. Ronald Tuxbury, 30 Westminster Drive, said he was for it. He understood Mr. Sargent’s predicament and said Mr. Sargent had done a lot with his property and made Sandy Beach Road more acceptable.
No one was opposed to the plan. Mattson asked if the Selectmen had denied a building permit because of the setback and Mr. Sargent said yes.
Roberts closed the hearing. Porter said they were deliberating an Area Variance and that entails applying a hardship criteria but personal financial hardship can’t play a role in the decision making. Roberts thought a 35 foot variance was significant. Wittenborg suggested a site walk and the Board agreed. Wittenborg asked the applicant if he understood the Board’s action, that they didn’t see a hardship that would dictate the garage be built in the proposed location.
Mattson moved, Fletcher seconded and the Board voted unanimously to conduct a site walk on Thursday, August 11, 2005 at 9:00 AM, and continue the public hearing to the next meeting, Tuesday, September 13th at 7:45 PM. (The site walk was conducted as planned. The Board discovered that the stone wall is the actual edge of the road, putting the proposed garage closer to the road by five feet.)
Case #05-19: Peter and Roberta Letourneau request an Equitable Waiver of Dimensional Requirements under Article V, Section 127-17 for a home built within the front yard setback of 75 feet, 493 Rhododendron Road, Map 14, Lot 8-03, Rural District.
Roberts asked what the difference was between the stone wall, which was thought to be the boundary, and the actual boundary. Roberta Letourneau explained that they thought, and the plans indicated, the road was narrower than it is. It is actually a four rod road and the right of way is wider than they thought, shifting the boundary back four feet behind the stone wall. When the house site was repositioned to accommodate the septic system the edge of the house shifted into the setback. The Town had signed off on occupancy but the mortgage company discovered a four foot violation of setback, the difference between the stone wall and the actual boundary.
Mr. Letourneau is a builder and they plan to sell this home. He has built several homes in town and has never had a setback problem. Hearing no one to speak either for or against the appeal, Roberts closed the hearing.
Fletcher and Porter agreed it was a legitimate mistake, with Porter noting the location is in a low density area and the four foot violation is not significant in this case. The Board agreed it was a good faith error, but Wittenborg was troubled by the failure to inquire about the width of the road. She looked at the plans and the road was indeed marked by the surveyor as a narrower road that it actually is.
Roberts closed the hearing and the Board proceeded to a unanimous vote of aye on the four mandatory findings for an Equitable Waiver of Dimensional Requirements. Porter moved, Wittenborg seconded and the Board unanimously granted the Equitable Waiver of Dimensional Requirements. A Notice of Decision will be sent to appropriate parties.
Case #05-20: Raman Patel requests a Special Exception under Article VIII, Section 127-35 B to operate a convenience store on property located at 646 NH Route 12S, Bloomin’ Antiques, Map 8, Lot 13, Rural District.
Roberts asked the applicant to tell the Board his plans. Mr. Patel said he wanted to open a convenience store. Porter asked if it involved the purchase of the building and Gary Taylor, owner of the building, said the sale is contingent on the decision about the Special Exception.
When asked if there was enough parking, Mr. Patel said there was enough now, and he would expand if more was needed in the future. Porter asked if he planned to install gasoline pumps and he said no. Wittenborg asked if there was a dwelling unit in the building. Mr. Patel said yes, and he planned to have a night watchman use the space. He located the apartment on the site map. Gary Taylor responded to questions about the septic system, saying it was originally approved for a 125 person restaurant and the leach field was recently rebuilt. One edge of the septic tank is under the paved portion of the overhang for the walkway. He also located the apartment for the Board, saying he too had used it for security personnel.
Fletcher asked how many cars the lot would accommodate and Mr. Taylor estimated 50 or 60 had parked there in the past.
Roberts asked if anyone was in favor of the appeal. Mr. Taylor, 3 Templeton Turnpike, said he was in favor. He said the retail use of the building is grandfathered and outlined the retail history of the site prior to zoning.
Roberts asked if anyone was opposed to the appeal. Silas Little, attorney for Mr. Dwinell, abutter and owner of a convenience store across the street from the building in question, responded. He said there was no evidence presented that supported a special exception, and pointed out that under Article VIII, Section 127-35 B the applicant must demonstrate that the proposed use won’t be any more burdensome than the current use. Mr. Little thought the application was premature in any case, since the Department of Transportation hasn’t approved a driveway for a convenience store.
He said the increased intensity of traffic use would create an adverse impact in the neighborhood, and the current retail antique business has a completely different configuration than a convenience store. He noted that it was interesting that the tax card did not show the living quarters in the building. Mr. Little submitted a memo summarizing his remarks, which are a part of these minutes, photos of potential traffic problems at the location and petitions from others opposed to having another convenience store in the area.
Steve Ciccalone, 801 NH Route 12 South, expounded on the serious traffic problems he saw likely. Route 12 South is a single lane highway and north bound traffic turning into the proposed location would have a limited line of sight and have to turn from the northbound passing lane. Semi trucks travel the road in both directions at a fairly high speed. He noted one could reasonably expect an increase in traffic volume from Massachusetts to a store selling beer, wine and cigarettes. Mr. Ciccalone had talked with Rene Fish at DOT who agreed that the state highway department would need to evaluate the location if the use changes.
Ronald Tuxbury wondered if there would be enough police coverage at night when the store might need coverage. Mr. Hunter, Stateline Campground, had two concerns; he has operated his business in the area for twenty years and finds the historic town, antique businesses and family-oriented quality of the area draws people to Fitzwilliam. There are already three convenience stores in the area. He added that a previous owner of the proposed location had a ‘terrible time’ with traffic. He felt that while gasoline sales were not planned at this time, competition with the convenience store across the street might force gas sales to be considered. Brenda Hunter agreed.
Ralph Niemala, an abutter, said he drives Route 12 S to get home and has to ride a quarter of a mile on the shoulder to get out of the traffic pattern to safely turn right into his driveway. He is also concerned with the water runoff from the adjoining property onto his property. His daughter owns the home next to the proposed store and is concerned the buffer of trees will be changed and her home will be exposed to the traffic and lighting and potential criminal activity a convenience store may generate. There have been robberies at the location in the past.
Nancy McLaughlin dittoed concerns about safety.
Michael Bentley, attorney representing the building’s current owner Gary Taylor, responded to several issues raised by Mr. Little. Mr. Bentley believes Mr. Little’s client, who is the owner of the convenience store across the street from the proposed store, is not worried about safety but about competition. Further, he noted that under the criteria for granting a special exception the proposed use must not be detrimental or injurious to the neighborhood; since there is a convenience store across the street, and there are at least three in town, the proposed store seems to fit in with the neighborhood. Since the area has been commercial for years, he believes that the objections are of the ‘not in my backyard’ variety. Regarding traffic issues, there is no question but that
application approval should be conditioned on state highway approval of access. He noted that the application does not specify any gasoline sales, and the Board could condition approval on there being none in the future.
Richard Dwinell, owner of the convenience store across from the proposed store, reminded everyone that there was a fatal accident in front of his store in 2000; he noted he had operated the business at that location for 16 years and has seen accidents in his driveway. He believes that if a convenience store did open across the street a turning lane would be necessary, because if you are northbound you have to stop and turn left across southbound traffic from the northbound passing lane.
Macreay Landy, Planning Board member and town resident, remarked that if the Board of Adjustment approves the Special exception, a site plan would be reviewed by the Planning Board, at which time issues of traffic control, lighting, noise, hours of operation, etc. would be discussed.
Carl Goldknopf, alternate to the Board of Adjustment, asked that the names be recorded of people attending the meeting who are for or against the appeal. A sign up sheet was circulated to the audience and Roberts made it clear that if someone chose not to sign it they didn’t have to.
Brian Luddy, business owner and town resident, told the Board he owned an antique store in town and found that having many other antique stores in the area was good for business. He asked that a decision not be made on the basis of three convenience stores in the area.
Sandy Coburn lives across the road from the proposed location. She noted the traffic that is generated by the outdoor antique shows held at Bloomin’ Antiques is substantial and people park along the highway, making it unsafe.
Hearing no further comments, Roberts closed the hearing. Fletcher remarked that it was hard to believe safety was an issue, given that one could go to either store without turning, depending on the direction of travel. Porter said she didn’t think traffic safety is of concern to the ZBA, but will be reviewed by the Planning Board and Department of Transportation. She added that the ZBA’s job is to review the proposal in terms of zoning and the proposed store is in the rural district. She believes the convenience store is an entirely different type of business than an antique store. Fletcher disagreed, saying he didn’t see any substantial change from one business to the other. Porter thought the change would be quantitative.
Wittenborg said the Board’s jurisdiction was zoning, not traffic, lighting or hours of operation. The Board needs to decide if the proposed use is an enlargement or extension of a grandfathered, nonconforming use. She noted case law uses words like ‘character,’ ‘nature’ and ‘kind’ in describing business – undefined terms – and the Board has to decide if the proposed use is so different in character as to warrant denial of the exception. She felt she would need further research on this particular aspect of the case.
Porter asked if there was a problem with people living in the building. Wittenborg said it was worthy of exploration since there are mixed uses, noting the property across the street is zoned general industrial and rural.
An associate of Mr. Patel, Ms. Collins described Mr. Patel as being very sensitive to the needs of the community, offering to sell meat even though he is a vegetarian.
Wittenborg suggested continuing the hearing so the Board could research legal questions and discuss further nonconforming uses. Mattson asked if Article VIII, Section 127-34 C also applied; it reads ‘It shall be demonstrated….that the lot can be used without hazard to the public health, safety and welfare and that adequate provisions have been made for water supply and wastewater disposal.’ Fletcher added that Article VIII, Section 127-35 B applies too.
Wittenborg moved, Porter seconded and the Board voted to continue the public hearing to September 13, 2005 at 8:15 PM. Mattson asked if Mr. Patel needed to bring anything more to the Board and Wittenborg described the application as pretty sketchy. She added there is no argument supporting the appeal, but the Board can’t ask him to make one.
Case #05-21: Amanda and Silas Exel request a Use Variance to keep three farm animals as pets on their property, which is less than five acres, located at 49 Angier Road, Map 30, Lot 02, Residential District.
Wittenborg recused herself from deliberation, saying Mrs. Exel had talked with her about caring for the pigs, which she could not do. Carl Goldknopf, alternate, was seated for this case.
Mr. Exel told the Board the two pigs and one goat are family pets, not farm animals. They were not being raised for slaughter or sale. Responding to a question from Mattson about the size of pigs, Mrs. Excel said they were not fed to increase their size; they are fed organically and get plenty of exercise. They are clicker trained like a dog might be. She said they have had these animals for three years and there has never been a complaint from the neighbors.
Roberts asked if they were unaware of the zoning regulation and Mr. Exel responded they were, until they received a letter from the Town. Goldknopf asked if they planned to keep more animals and Porter asked which animals they had currently. Mrs. Exel said they have some chickens and ducks, as well as the pigs and goat. She considers them to be great parenting tools, teaching her children sound values. She intends that her children will be involved in 4-H when they are old enough.
Goldknopf asked if they would mind having a limitation on the number of animals and they said no, they just want to keep the animals they have now. Goldknopf clarified that if something happened to the goat or pigs they would replace them with another goat or pig, and they agreed.
Roberts asked for public comment and Bret Carter, 43 Angier Road, reported there were no animal odors and the property seemed clean, noting the animals were pets. Jane Fitzpatrick, a neighbor, agreed, adding the family treats their animals well.
Hearing no opposition to the appeal, Roberts closed the hearing. Porter wondered if this case was similar to another animal issue in the Depot several years ago, and the Board agreed it was not. Porter noted this was an appeal for a use variance which would run with the land, and asked if it could be conditioned. Goldknopf pointed out that if the variance is abandoned for a year it disappears.
Roberts asked if the Board wanted to limit the animals to the current animals and to the current owners, and the Board agreed they did. Porter wondered if the health department should look at the situation and Mrs. Exel said she had talked with the Cheshire County Farm Agent. He was not concerned about 2 pigs and a goat contaminating ground water.
The Board proceeded to a unanimous vote of aye on the five mandatory findings for a variance. Fletcher moved, Porter seconded and the Board unanimously granted the Use Variance, with the following conditions: 1) The animals on the property are limited to the current animals, which includes two pigs, one goat and some chickens and ducks, and 2) the Use Variance is limited to the current owners, the Exels, since their quality of care in keeping farm pets cannot be guaranteed in future owners.
A Notice of Decision will be sent to appropriate parties.
Case #05-22: Doris Johansson requests a Special Exception to increase the signage for her self-storage business on property located at 883 NH Route 12 South, Map 4, Lot 55-06/07, Rural District.
Goldknopf stepped down and Wittenborg was reseated for this case.
Roberts read the case and clarified that Ms. Johansson was planning to change the name of her business from U Store to Economy Self-Storage.
She agreed and explained that she wanted to also change the size of her sign since it was so small it couldn’t be seen from the road. DOT regulations require the sign to be 75 feet from the centerline of Route 12. She hopes to have a second sign, exactly like the first that would be placed across the driveway to be seen by traffic traveling in the other direction. She is reluctant to cut foliage in front of her property because she lives on one lot and her business is on the other, and she appreciates her house being screened from Route 12 traffic. The proposed signs are 12 square feet each, suspended so the top of the signs are seven feet above ground.
Ms. Johansson clarified that the signs are really to help people who are looking for the business to find it, rather than as advertisement. She has been in business 17 years at that location. Wittenborg thought it seemed like a reasonable request and Mattson noted she was within the state required setback and the solution seems appropriate.
Roberts asked if anyone was for or against the appeal. Butch Hunter, Stateline Campground, speaking in favor, said he and his wife had operated their business across the road from Ms. Johansson for three years and never knew it was there. He said she definitely needs new signs.
Roberts closed the hearing and the Board proceeded to a unanimous vote of aye on the five mandatory findings for a Special Exception. Porter moved, Mattson seconded and the Board unanimously granted the Special Exception. A Notice of Decision will be sent to appropriate parties.
Administrative:
Roberts read a notice from the Fire Department about their Annual Fun Fair.
The Board agreed to meet on Tuesday, September 27 at 7:30 PM for a working meeting of the Board to discuss administrative procedures and Board training.
By a unanimous acclaim, the Board elected Edwin Mattson Vice Chairman and Gretchen Wittenborg Clerk of the Board.
Mattson moved, Fletcher seconded and the Board approved the minutes of the July 12, 2005 meeting as written.
The Board adjourned at 10 PM.
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