ZONING BOARD OF ADJUSTMENT
MARCH 28, 2006
Members Present: Seated - Jane Roberts, Chairman, Coni Porter, Diane Schott, Gretchen Wittenborg, and Dan Baker, alternate in for Ashley Fletcher.
Present - Alternates Goldknopf and Filipi, and Selectman Clukey.
Meeting was called to order at 7:00 PM
Case #06-03: Raman Patel appeals the Administrative Decision of the Planning Board to send his case to the Board of Adjustment for a Special Exception to open a convenience store on property located at 646 Route 12 South, under Fitzwilliam Land Use Ordinance Section 127-35B, Changing a Nonconforming Use, Map 8, Lot 13.
Roberts introduced the case, and asked the applicant if an apartment was going to be part of the application. Mr. JR Davis, attorney for Mr. Patel, said his client would reserve the right to come back to the Board in the future for the apartment, but that in order to streamline the site plan review they took the apartment off the table. He added his client did intend to come back for the apartment.
Roberts asked if there were any comments from the Board regarding the decision of the Planning Board. Wittenborg said she had done some research and quoted RSA 674:19 that a zoning ordinance shall not apply to existing structures or to the existing use of any building; quoted Town Ordinance 127-35B regarding change in nonconforming use, 127-11A regarding the definition of retail use; quoted the Master Plan regarding its support of some commercial development along Route 12, in the village and in residential neighborhoods. She said she found nothing that distinguished one retail use from another. She referred to a 1998 letter to Gary Taylor from the Planning Board stating the status of his ‘retail’ use of the building is a grandfathered, nonconforming use. Her reading of these documents
indicated to her that a special exception was not necessary. Baker agreed.
Porter asked if this coincided with the synopsis Gary Kinyon made during the legal consultation with the Planning Board. She felt a special exception was necessary because the intensification of use does affect the neighborhood. Schott added the intensity of use must be substantial and it needs to be documented. She wondered if the Planning Board had documented the intensification as part of the decision to send the applicant to the ZBA. She wondered if there was documentation that traffic would increase on the state highway or if there was a basis to determine intensity.
Wittenborg noted the Planning Board referred to hours of operation as longer than they currently are and the traffic study. Porter reiterated that if there was a substantially different use a special exception was needed. Schott thought that if the hours of operation were a condition of operation for Mr. Taylor then the Board could discuss intensity of use for the proposed hours of operation.
Wittenborg said there was no regulation of hours of operation for any business in town, adding she thought that traffic and lighting are the purview of the Planning Board. Porter said she thought the Planning Board must have thought a special exception was needed if they sent the applicant to the ZBA. Wittenborg proposed that they were sent so the ZBA could send them back to the Planning Board, adding that the ZBA can only review the case within the parameters of Town ordinance as written. There is no choice.
Schott said Mr. Patel stated his hours of operation voluntarily and with no ordinance to regulate them, the Board may assume that’s what he will do. Baker wondered what they could do without a basis for comparison in examining the traffic study, asking if there really was an increase in traffic.
Mr. Davis clarified that the Planning Board had asked for a traffic study and his client had hired Paul Grasewicz to conduct it. Baker asked if there was an increase. Wittenborg replied that the study indicated an additional turn lane was unnecessary. Porter asked again if the Board would agree this was an expanded use. Wittenborg said she could only base her opinion on what the ordinance says and it doesn’t make a distinction among retail uses.
Porter allowed that it was hard to forget what they had heard from abutters in the past about the use, and referred to Hurley v Hollis and Conforti V Manchester. Wittenborg said both cases involved alterations to the building. Porter understood this building would not be altered but she questioned the intensification of use. Schott pointed out there is a convenience store directly across the street.
Roberts asked if they were proposing that a special exception was not needed. Wittenborg said she didn’t see how they could give a special exception under our ordinances. Schott said she didn’t think it was needed and if this appeal is granted there is no need to go onto the next case, an appeal for a special exception.
Roberts said let’s vote. Mr. Davis urged the Board to wait to vote until the applicant has presented his case.
Mr. Davis presented a new document to the Board, and reviewed it for them: 1) Under NH law and the NH constitution when a lawful nonconforming use exists it must be allowed to continue; 2) retail is retail for zoning purposes; 3) the Selectmen found the proposed use to be a grandfathered nonconforming continuing use. The ZBA upheld the determination.
He said it was true there would be some change in the hours of operation and in the traffic. The Planning Board could only send the applicant to the ZBA for a special exception if they found the hours and traffic had an impact on the neighborhood and that is a fact-based determination. His client does not think these changes are significant enough to constitute a change in use. There is no evidence that opening three hours earlier and closing six hours later would have a significant impact. There is retail across the street and to the immediate north of the property. While the proposed store is in the rural district, the neighborhood is mixed use along Route 12. He said there is a dearth of evidence that traffic or hours would have a significant impact on the neighborhood.
He said the store is not a destination store and will not generate new traffic on the road. He noted the peak hours for traffic coincide with the current store’s hours of operation. He added there is more than adequate parking, and concluded the Planning Board erred in sending the applicant to the ZBA for a special exception. He asked the Board to grant the appeal and then deal with the special exception, so a court appeal could address both issues.
Mr. Davis pointed out that town ordinance does not address expansion of use but only expanding in size. He submitted photos showing extensive parking currently and referred to additional documentation he provided. Roberts noted the Board does not appreciate getting materials at the last minute without time to deliberate on them.
Roberts read a 1989 letter from the Planning Board to Attorney Tower affirming the grandfathered continuing nonconforming retail use for Bottom’s Up across the street.
Porter clarified that Bottom’s Up was in the general industrial district.
Paul Grasewicz, engineer, discussed the traffic study and site plan. He said that due to the traffic study the southern/lower driveway entrance was eliminated because lines of sight were marginal. The upper driveway was widened to accommodate truck traffic more easily. He used an engineering standard to predict how much traffic a convenience store would generate. Traffic date collected this winter was statistically enhanced to summer values using NH DOT numbers to provide a more accurate traffic picture. Turning traffic will increase but it was determined that no additional dedicated turning lane was needed.
Seventy-eight vehicles are predicted to enter the site at peak hours, meaning there will be more traffic in the parking area than there is currently. They added a gravel driveway so trucks don’t have to back up in the lot, added additional parking spaces and a wider parking area for customers. Parking meets current town parking regulations.
Wittenborg read a letter presented by Silas Little, attorney for Bottom’s Up, who could not be present. It is a part of these minutes.
Ralph Niemala, abutter, said that 78 cars entering and 75 cars leaving the site will greatly impact his ability to enter and leave his own driveway to the south. Currently he has to wait more than a minute to enter traffic from his driveway. He thought that was a significant increase in traffic. He said a light may be needed. He felt that lighting and hours of operation were also significantly changed and would have an impact.
Mrs. Coburn, abutter, agreed. She noted the hours of operation would increase from seven to sixteen, more than double current hours; the later hours would draw more people from MA between the hours of 9PM to 11PM when other stores are closed; the proposed store would be selling controlled substances like alcohol, cigarettes and lottery tickets which was very different from antiques; and delivery truck traffic would substantially increase with a convenience store. She concluded that there would be a huge expansion of traffic volume.
When asked where she lived relative to the proposed store, she said she lives across the street next door to Bottom’s Up, which is screened from her property by a line of trees. She added she can see and hear everything that happens across the street.
Mr. Taylor said he didn’t think Mr. Patel’s hours were written in stone, that after being open awhile he may decide to close earlier.
Mr. McLaughlin said his bedroom is 400 feet from the parking lot and he would be disturbed by the lights. He would have to contend with traffic noise and people buying liquor. He feared that his children may be affected by people buying controlled substances, and asked the Board to think about how he feels with liquor sales going on next door.
Mr. Dwinell, owner of Bottom’s Up, said he has no problem with traffic but it is the turning that is a problem. He reminded the Board of the traffic fatality in front of his store. Mr. Davis pointed out that the truck involved was parked partially in the traffic lane.
Mr. Hunter, Stateline Campground, noted that he has a lot of campers that want to buy alcohol after hours and now they will be going to the new store. He said lots of people would be coming up from MA to buy lottery tickets when other stores are closed. He wondered if Mr. Patel would put in gas pumps in the future and urged the Board to put it in writing that no gas pumps be allowed. He said delivery trucks will be arriving early and late, disrupting the neighborhood.
Goldknopf, reading from the ordinance, said the Planning Board sent the applicant to the ZBA to determine if the use is more or equally in harmony with the neighborhood.
Mr. Davis made the following points: 1) the store will use the same lighting as the current building 2) have a lighted sign that complies with the sign ordinance, 3) he submitted the police report documenting the reason for the traffic accident across the street 4) he said Conforti v Manchester wasn’t comparable in that live rock concerts were found to be a substantial change in use from movies, with excessive noise, trash, lighting and loading equipment 5) he said Grasewicz expects there will be about the same amount of traffic at the proposed store as for Bottom’s Up; northbound traffic will stop there and southbound traffic will stop at the new store, 6) businesses have a right to stay open late; Mr. Mike’s is open ‘til 11PM and sells beer and wine 7) his client will apply for a liquor
license to sell beer/wine.
Mrs. Hunter wondered why they wanted a store at all when there are three stores within 3 or 4 miles of each other.
Wittenborg moved to grant Mr. Patel’s appeal on the basis the Planning Board was in error in directing Mr. Patel to the ZBA for a special exception under 127-35 B. Porter seconded.
Baker noted the general public voiced opposition on the basis of intensity constituting a change in use. He said it was an emotional topic with abutters but the last thing the ZBA wanted to do was quash competition. Liquor is already sold in the neighborhood. Wittenborg said she heard the same things but she felt constrained by the ordinance, and there are many commercial properties on Route 12. Baker noted technical data suggests it’s not a change in use, but abutters feel it is a change in intensity. Wittenborg said you have to look at case law and meet the ‘substantially different’ criteria given our definition of retail. Baker agreed it was a problem that the town doesn’t differentiate among retail uses.
Schott congratulated the public for commenting, saying it was helpful. Wittenborg said she was troubled by the concept of ‘in harmony’ with the neighborhood, and is thinking about the direction this case will take and its impact on the town.
The Board ended discussion and voted on the motion. Aye – Baker, Schott, Wittenborg, and Roberts. Nay – Porter, who added that based on 127-35 B, she didn’t think the proposed use was in harmony with a rural district and thought the ZBAs job was to pull these uses into conformity as much as possible. The motion was approved four to one. A notice of decision will be sent to appropriate parties.
Porter noted that with this vote the second hearing is not necessary. Mr. Davis asked to continue the appeal for the special exception to the next meeting in case there is an appeal of the ZBA decision. The hearing will be continued to April 11, 2006 at 7 PM.
8:00 PM Case 06-05 Joel and Sarah Berg appeal the administrative decision of the Board of Selectmen denying a building permit on a Class VI road, Map 15, Lot 3-05.
Mr. and Mrs. Berg were present. Beth Fernald represented abutters Mr. and Mrs. Pizer.
Joel Berg told the Board he and his wife had purchased two lots, Lot 3-05 and 3-09, which are separated by a Class VI road. Lot 3-09 has frontage on a Class V road but is not buildable due to extensive wetlands. Lot 3-05 has frontage on a Class VI road and is buildable. A voluntary merger of the two lots was denied in 2005. They want to build their home on Lot 3-05. They have family in Fitzwilliam and two young children, and are looking forward to living in a small town. On the advice of Mr. Prigge and Mrs. Wallace, from whom they purchased the property, they petitioned the Town Meeting to discontinue the Class VI road that divides their two lots, with the intention of doing the voluntary merger. This would have given them frontage on a Class V road and they could then build on Lot
3-05. Their petition to discontinue the Class VI road was not approved.
It was noted that Lot 3-05 was originally part of a subdivision approved by the Planning Board in November 1975. It was to be accessed by a short road built by the Fitzwilliam Conservation Corporation, developer, between Rhododendron Road and the Class VI road known as the Ashuelot Turnpike. No further road improvements were made to the proposed subdivision roads, violating an agreement between the Planning Board and the Corporation; however, five lots were sold to individuals and one of those was developed. In 1986 the remaining lots in the subdivision were sold at a foreclosure auction to the Wallaces. The Wallaces sold all but three of the lots. Two of these lots were purchased by the Bergs.
Three of the original seven lots had frontage on a Class VI road, the rest had frontage on a Class V road. The only road built by the Corporation, which was approved by the town, was to be used as the access to the subdivision. This road crosses Lot 3-09, which now belongs to the Bergs. This lot was not a part of the original subdivision but was owned by the Corporation and conveyed to the Wallaces during the foreclosure.
Baker thought the problem was how to bring the Class VI road up to town standards so it could be approved. Mr. Berg, using a survey map of the property, showed where he proposes to access his property and added that he will sign a waiver releasing the town from liability and make the necessary improvements to bring the road up to standard. He said 175 feet of the road need improvement to reach the old subdivision access road from Lot 3-05.
Wittenborg asked who owned the road. At one time the Fitzwilliam Corporation owned the road, and while it was approved by the town it was not accepted by the town as a public town road. It was to remain a private road, maintained by a homeowners association.
Ms. Fernald, attorney for the Pizers, noted that the appeal before the Board was of a policy decision made by the Selectmen in April 2005. Citing RSA 676:5, she said appeals are required to be brought within 30 days. She cited a case, Daniel v B&J Realty where an appeal was denied because it was filed one day late. She wondered if the Board could even hear the case.
Schott read a 2005 letter from the Selectmen to Mr. Prigge stating they would deny a building permit for Lot 3-05 if an application were presented. A signed letter from the Town Code Enforcement Officer dated March 28, 2006, stated that a building permit would not be issued for that lot.
Mr. Berg asked why they couldn’t get a building permit since this lot is a lot of record within an approved subdivision. Ms. Fernald stated the subdivision was approved in 1975, on condition that the roads are improved. She referred to a letter written in 1988 by Thomas Parker, Chair of the Selectmen, stating that the Selectmen believed the 1975 agreement between the Planning Board and Fitzwilliam Conservation Corporation accepting the subdivision subject to construction of the road and final survey was null and void because the roads were never finished.
However, Note 5. of the agreement states that ‘the Planning Board will give final subdivision approval to individual lots within the subdivision at the time when the final layout of such lots has been completed, and when the access road to the lot or lots for which final subdivision approval is being sought, has been completed to NH TRA standards. The Corporation will notify the Selectmen that the road has been completed up to a certain point and Selectmen will inspect said road.’ In 1976 the Selectmen approved the short road constructed specifically to access the subdivision. The Class VI road serving the subdivision was not improved by the Corporation, but one home was built on Lot 3-04, prior to the town’s issuing building permits. The current owners of that home maintain both
the service and access roads seasonally.
Wittenborg asked for and read the decision of the Planning Board denying an application for a voluntary merger of the two lots, Lot 3-05 and 3-09, because the two lots are bisected by a Class VI road and town ordinance defines a lot as being an area of land undivided by any street.
Goldknopf, a property owner in the same subdivision, noted that RSA 674:41 does not discuss building permits and said the Selectmen have no authority to overturn Planning Board approval of a subdivision. He asked how the town could continue to tax the lots as separate lots if the subdivision did not exist. A Class VI road accessing a subdivision would have to be built or improved and maintained to town standards.
Schott said the town had allowed the lots to be sold and some lots have been developed, and wondered how the agreement could be null and void. Baker noted that nothing had been done on Ashuelot Turnpike except for the 20 or so feet to reach the Pizer property.
An abutter, John Okerman said he supported the Bergs in that the Class VI road provides access to his woodlot and it would be great if it was improved. He suggested a land use attorney he’d contacted said the two lots could be merged if necessary. Wittenborg said she thought the 2005 decision by the Planning Board denying the merger was mistaken.
Goldknopf said the town couldn’t tie up the land forever, it would constitute a taking. Porter raised the issue of the Class VI being subject to gates and bars. Goldknopf and Baker both said that meant only that the road was not maintained and if any gates or bars were erected they must remain unlocked.
Mr. Berg noted that at Town Meeting the public expressed great concern that the road remains open for the public. He said he would keep the road open and that their house would be well back from the road.
Baker asked Ms. Fernald what was the basis of the Pizer objection. She said that people use the Class VI road and when the Pizers bought their home they were under the impression that the subdivision was no longer open for building. Wittenborg said she thought there was no more subdivision and that the road was no longer a subdivision road.
Mr. Okerman asked if a Class VI road could be used as a driveway.
Mrs. Berg said they had contacted the Pizers twice to ask what it was they wanted. Mr. and Mrs. Berg want to work out any differences or objections. Mr. Okerman said the Pizers told him they didn’t want any neighbors. Goldknopf noted the Pizers were in residence only four months of the year.
Filipi wondered if the Planning Board could condition that the lots be sold together, or do a deed restriction. He said ‘adequate access’ is what was needed. Baker asked if the Bergs could go the Planning Board for a merger. The Board expressed frustration at ‘spinning their wheels.’
Baker clarified that no building permit application had been filed so there was actually no decision to appeal. He thought a better approach was to merge the two lots if technically possible. Filipi thought it might be best to create a new driveway across Lot 3-09 to avoid wetlands, rather than use the old access road.
Baker moved, Porter seconded and the Board approved a motion to allow the Bergs to come back to the ZBA if necessary and waive the application fee. The Bergs formally withdrew their appeal. They will either seek a voluntary merger or apply for a building permit after consultation.
Porter moved, Baker seconded and the Board approved the minutes of the February 14, 2006 meeting as written. The meeting was adjourned at 10:00 PM.
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