CITY OF BERLIN, NH
ZONING BOARD OF ADJUSTMENT
MEETING MINUTES
March 31, 2010
Members Present: Chair Harold Bigelow, Richard Tremaine, Greg Estrella, and Ron Cote
Members Excused: Reverend Dana Hoyt, Henry Boucher
Others Present: Sean Lamontagne, Rick Lamontagne, Christopher Meier, Steve Binette, Denis Binette, Luke Webster, Greg Michael, Rita Debonis; Joe Martin, Zoning Office, Alison Findsen, Secretary
Chair Bigelow opened the meeting at 6:30 p.m.
Minutes: Mr. Tremaine made a motion to accept the minutes of the February meeting, with Mr. Estrella seconding the motion and everyone voting in favor.
Chair Bigelow moved Mr. Estrella into the position of a voting member for the meeting.
Request for a rehearing: The Board reviewed the request for a rehearing in case 02-10, for Ke N Tat, which was heard on February 24 – a request for an appeal of an administrative decision. The Board decided there was no new information and the decision to deny the request previously, still stood, as the property had too much building coverage on the land space. It had been in residential use for many years and the grandfathering had been lost. The request for a rehearing was denied. A motion was made by Mr. Tremaine and seconded by Mr. Cote to not grant the request for a rehearing, with everyone voting in favor.
Chair Bigelow opened the public hearing for the next case and explained the proceedings of the hearing.
Applicant: 03-10 White Mountain Suites, LLC, of Berlin
Request: A special exception, which would allow a change of use to allow a student and residential housing in the building at 56 Mt Forist Street (former Bartlett School. The subject is located on Tax Map 118, Lot 037, in a Residential General Zone. The request comes under Article VIII, Section 17-82.16 of the Berlin Zoning Ordinance, pertaining to special exceptions.
Discussion: Chair Bigelow swore in Steve Binette, of Milan. He stated that White Mountain Suites LLC is in the process of purchasing the said property and finalizing depends upon the granting of the special exception. He stated that they will use the building for student housing for the local college and in the summer it might be utilized for seasonal summer residential use. There will be 12 – 14 units, which could hold up to 4 or 5 students each. There will be bathrooms and kitchens in each unit. Mr. Binette stated eventually, should the college build their own dorms, he would look at having it strictly residential housing. There would be one or two units designated for handicapped accessibility. Construction could begin
within a few weeks if the Special Exception is granted. He noted there will be plenty of parking and Tri County CAP will also provide bussing for students without their own transportation. Mr. Binette stated the college was in full support of this endeavor. He also stated there would be a manager living on the premises, and there would also be security cameras on the property. This will be a for profit endeavor, bringing the building onto the tax rolls.
Support: No one spoke in favor of the granting of the special exception.
Opposition: No one spoke against granting the special exception.
Final Word: Mr. Binette stated that granting the special exception would be good for Berlin’s downtown economy, as it would put 65-75 students in walking distance from Berlin’s downtown.
Chair Bigelow closed the hearing with a summarization of the proceedings, which were not disputed.
Board
Discussion: The Board briefly discussed the request, noting that it was a great idea for the City and they felt student housing would be acceptable in the area. They noted that it would also be a much needed addition to the tax rolls. It was mentioned that the special exception was for student housing, as residential apartments is allowed in the zone.
Decision: To grant the special exception.
Motion: Mr. Cote made a motion to grant the request for a special exception, allowing the building to be used as student/residential housing. The motion was seconded by Mr. Estrella and everyone voting in favor.
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Applicant: 04-10 Christopher Meier, Cooper, Cargill Chant, PA, 110 Pleasant Street, on behalf of Rita Debonis, 773 Main Street.
Request: Appeal of Administrative Decision, to block the occupancy permit allowing the Fagin’s Pub to open for public use. The subject property is located at 777 Main Street, on Tax Map 128, Lot 215, in a Business General Zone. The request comes under Article XIX Section 17-201.1 of the Berlin Zoning Ordinance.
Discussion: Attorney Meier was sworn in and spoke for Ms. Debonis. Attorney Meier reviewed the earlier proceedings of the property. He stated that the original building permit was revoked and another one was not issued following the Equitable Waiver that had been granted, therefore the occupancy permit could not be legally issued. He referenced RSA 676.6, stating that the Certificate of Occupancy permit should have been revoked during the appeal process, and the business not allowed to run. The Board stated they believed the status quo would be that it should be allowed to run during the process. Attorney Meier stated that the building having been destroyed by 95% would not allow it to continue with the grandfathering it was under. The Board also
commented that the permit was not revoked but suspended, and therefore automatically reinstated with the Equitable Waiver. Attorney Meier disagreed with the Board and believed that there was no legal building permit and therefore no continuing of work and granting of occupancy permit should have been done. Attorney Meier also stated that a Site Plan Review should have been done on the property.
Support: No one spoke in support of the granting of the Administrative Appeal.
Opposition: Attorney Luke Webster represented S L Treebuilt Real Estate Holding Company LLC and was sworn in by Chair Bigelow. Attorney Webster stated that RSA 674.33 and 674.33.a the Equitable Waiver did grant the continuing of the property and the allowance of the certificate of occupancy. He also questioned where Attorney Meier got the figures to state that 95% of the building had been destroyed, as it was not 95% destroyed. He stated that there was no need for a site plan review. He reiterated the Board had the power to reinstated the suspended building permit by granting the Equitable Waiver.
No one else spoke against the granting of the Administrative Appeal.
Final Word: Attorney Meiers stated that the authority of the Board was not an issue. The property owner should have had a site plan review. He stated that he had gotten the 95% from the insurance payments. He reiterated that there was no permit issued after the Equitable Waiver and therefore opening the business should not have happened, the Certificate of Operation was issued in error.
Chair Bigelow closed the hearing with a summarization of the proceedings, which were not disputed.
Board
Discussion: The Board collectively agreed that when the Equitable Waiver was granted the suspension of the building permit stopped and the owner of 777 Main Street could continue the work, within the conditions given and therefore the certificate of occupancy was given legally. The Board did not agree with the 95% loss, feeling there were too many variables. The Board felt that the status quo that needed to be maintained was that which was happening at the time, and not prior to the appeal request. The Board believed the certificate of occupancy was given correctly and should not be revoked.
Decision: To deny the request for an administrative appeal.
Motion: Mr. Tremaine made a motion to deny the request for an administrative appeal, with Mr. Cote seconding the motion and everyone voting in favor of the denial.
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New Business: There was no new business to discuss.
Adjournment: Mr. Tremaine made a motion to adjourn the meeting, with Mr. Cote seconding the motion and everyone voting in favor. Chair Bigelow closed the meeting at 7:35 p.m.
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