ZONING BOARD OF ADJUSTMENT MEETING
THURSDAY, APRIL 3, 2003
41 South Main Street
Members Present: Paul Parker, Gordon Grant and Margaret Russell
Staff Present: Paul Charron and Fran Osborne
Public Present: Tom Demers and Attorney Francis X. Bruton, III
· Chairman Parker called the meeting to order at 7:05 p. m. Minutes of February 6, 2003 were reviewed. Gordon made motion to accept as written, Margaret 2nd, Discussion. Margaret made motion the minutes be amended as follows, Gordon 2nd, motion carried:
Page 1 - (next to last paragraph) - remove - discussion of Packy Campbell, RSA Development, LLC being at the Planning Board meeting January 28, 2003.
Page 1 - (last paragraph) - remove entire paragraph - Discussion followed on the RSA Development Motion to Intervene and issuance of the Special Use Permit. The Code Enforcement Officer determined RSA Development needed a variance. Mr. Campbell filed the variance, but did not appeal the decision for getting a Special Use Permit. The ZBA denied the issuance of the Special Use Permit and variance. The Planning Board then overrode their decision and granted a Special Use Permit.
Page 2 - (1st paragraph) - remove - Discussion followed on the Zoning Ordinance regarding Special Use Permits and wording of "shall not" and "on" the Kicking Horse Brook.
· Chairman said on the ZBA vs. PB court case - there has been no report received on a decision by the Court.
· Election of Officers - Chairman informed board members that there would be a Selectmens Meeting on April 28, 2003 and he would like to wait until after this meeting. The board concurred to wait to the May 1, 2003 ZBA meeting to elect officers.
· New Business: Chairman asked if any board members were attending the OSP Spring Conference. Neither Gordon or Margaret would be attending. Margaret informed the board there is an RSA that states new board members are supposed to attend training within 6 months of their appointment to the board.
· Margaret made motion to recess at 7:25 p. m., Gordon 2nd, motion carried. Meeting reconvened at 7:30 p m. for public hearing.
Public Hearing 7:30 p. m.
· Application for Variance by Tom Demers - for building setback in the IB (Industrial Business) district and parking locations for proposed Donut Shop/Retail Space/office space (Tax Map R31, Lot 25). Attorney Francis X. Bruton of McNeill, Taylor & Gallo law firm is representing Tom Demers. Chairman informed Tom Demers and Attorney that there is not a full board present to hear this case and he may make a choice to not want this hearing to take place. If you do decide to go forward all 3 members have to agree. Attorney Bruton said he was seeking a clarification by the Planning Board on the plan presented. I think you can
deal with that first. If you consider this as a new variance, then I would like this hearing continued. Copies of the original plan were presented. This was not necessarily a problem. The location of the building was discussed and replacing of the mobile home and parking in front The ZBA minutes of June 6, 2002 were referenced. The file was reviewed. Chairman Parker asked the board members to review these minutes. Chairman read the narrative originally presented by Tom Demers for the 1st variance submitted. He had asked for a variance to build a new building for a coffee/donut shop franchise with retail space and drive through. A plan had been presented at that time with colored areas showing what was to take place. Chairman didn't recall a setback and parking space discussion. Margaret didn't recall a setback and parking discussion. She thought he asked that there be a change of use in
the zone which didn't allow it. He wanted
Zoning Board of Adjustment Meeting April 3, 2003 (continued) Page 2
a commercial business in the Industrial Business district. Gordon Grant feels it is not zoned right for what Tom Demers wants.
Attorney Bruton - Tom explained his plan and the existing mobile home. The new building will be where the mobile home is. He showed board members on his plan where the new building will be. Discussion on the Commercial Center vs. the Industrial Business district and the need for change of use.
Chairman - in the process of the public hearing, you try to get an idea of what the proposal is to be.
Tom Demers - when I originally came in I was told to be specific about what I wanted and was told the plan submitted is a part of the package as part of the narrative. I wanted this to be a point and thought it was taken care of originally. Parking and setback was not discussed and I didn't think it was necessary at that time.
Attorney Bruton - Tom Demers assumed the plan was part of what was presented.
Chairman - my recollection was it was a change of use and we like full prints to show what we are agreeing to. Setbacks is a different issue as is parking. There are 2 separate requests and issues here (1) setbacks (2) parking. The chairman pointed out there should be 2 separate items of request here. Discussion on change of use. Margaret and Paul both agree it was a "change of use."
Margaret - I remember this was making this more nonconforming.
Attorney Bruton asked that the meeting be continued for a full board.
CEO Paul Charron asked board members if they would feel comfortable with a clarification. There are things that happened during that meeting which may have relevance. This plan was approved by the Planning Board in 1999 as a nonconforming use as an office (mobile home) for the used car business. The Planning Board may have felt the issue was resolved at that time. Some of the references in the minutes show the mobile home being used as a commercial business (office). This was not dealt with because the plan was signed by the Planning Board. The Planning Board approved the dimensions and showed where the office was going per that plan. The fact is, Tom Demers may not need a variance. I think part of the reason the plan was approved as a
commercial venture was because the Planning Board recognized it as grand fathered.
Margaret - why did it come to the ZBA then?
Chairman - you asked for clarification per the Planning Board request. A Planning Board member asked the ZBA to write a letter. Discussion on PB minutes of 1999.
Tom Demers - I brought in a lot of fill. The PB approved a used car lot in 1999. The plan shows 28' setback on the mobile home office.
CEO Paul Charron - the PB approved a Commercial use of the mobile home as an office with the 28' setback.
Margaret - now he's removing the mobile home (its on sonotubes). Margaret mentioned things were approved by the PB and at that time she doesn't recall being done (sign, lights, etc.).
Attorney Bruton - is it worth seeing if the request for a donut shop negates the grand fathering. Can you at least clarify that? With what you granted for this variance, did that negate the plan that was before the PB? It seems apparent from your discussion it doesn't negate it (the plan originally presented). If what you report to the PB is granting a variance, could you clarify? In the March 11, 2003 PB meeting minutes, Acting Chairman Jim Horgan asked to have CEO Paul Charron present this to the ZBA rather than the applicant at the next ZBA meeting April 3, 2003 as to the ZBA's intent at the June 2002 meeting at which Tom Demers received variance approval. The building size was also discussed (40'x68').
Attorney Bruton - it might make sense for the CEO to present his answer/clarification on impact ZBA made by granting the change of use. Does that take away vested rights when the ZBA made that decision?
Chairman - reviewed the June 6, 2002 ZBA minutes. Margaret and Chairman Parker cited in several place the word "uses" keeps coming up. Chairman - my recollection of that meeting was, we were making a change of use, a commercial use in the industrial business district.
Margaret - asked about the 5 steps of a variance from the 6/6/02 ZBA minutes. Discussion on comment in ZBA 6/6/02 minutes regarding 50' centerline on what the state owns. Tom Demers tried to clarify this to the board members.
Zoning Board of Adjustment Meeting April 3, 2003 (continued) Page 3
Attorney Bruton said that is a PB issue. If you're not talking about setbacks, did you deal with that? According to your statement, no you didn't.
Chairman - we discussed change of use. By granting change of use, did we negate the grand fathered setback.?
CEO Paul Charron - there's a legally existing nonconforming structure approved as a commercial use. When he asked for a change of use, the PB didn't think he needed a variance. If the PB granted him the use - they gave him the O. K. for a legally nonconforming structure to have a change of use. He has vested rights.
Chairman - we're talking about a mobile home on sonotubes vs. a new building.
Attorney Bruton - there's no change in the nonconforming issue - you can expand if allowed. If I legally challenge the change, I can show this to you. We are not making the plan more nonconforming.
Margaret - I think he needs a variance to take the mobile home out and replace it with a new building. Discussion.
Chairman - do you consider this an expansion?
Attorney Bruton - it is not an expansion of the nonconforming aspect. We're not moving past the 28' front setback. The plan and ZBA minutes suggest you approved a change of use previously. It didn't affect the nonconforming aspect of the building. We didn't affect the front setback or the front parking.
CEO - the change of use Margaret brought up - after 24 months, the use could be abandoned. This is confusing. Does the mobile home have the same vested rights as a business?
Attorney Bruton - I think case law pretty well establishes this.
CEO - does a mobile home have the same vested rights as a permanent building. I believe it may have.
Discussion on change of use and PB approval of used car lot and mobile home as an office.
CEO - does that structure have certain vested rights and I may have authority to make that decision. I think the PB thought the ZBA dealt with the change of use.
Attorney Bruton - the home is pre-existing. Perhaps CEO or PB can provide an answer.
Margaret & Paul - change of use - does it negate setbacks that were included. It was a commercial use in an IB district. Question then is setbacks.
Attorney Bruton - if its confusing, we'll withdraw the question.
Chairman - we should get a legal counsel opinion.
Margaret made a motion to ask legal counsel whether the change of use negated the grand fathered setback and that the ZBA get a written response to clarify this to the Planning Board, Gordon 2nd, motion carried.
· With no further business to discuss, Gordon Grant made a motion to adjourn at 8:35 p. m., Margaret 2nd, motion carried.
APPROVED
___________________________________ ____________________________________
Paul Parker, Chairman Date
Zoning Board o Adjustment
Town of Farmington
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