Lyme Planning Board Minutes
May 31, 2007
Board Members & Staff: Present: John Billings, Member; Dick Jones, Selectboard Representative; Michelle Balch, Member; Don Dwight, Alternate; David Roby, Alternate; and Victoria Davis, Planning & Zoning Administrator Absent: Jack Elliott, Chair; Stephanie Clark, Vice-Chair; Ben Kilham, Alternate
Public: Bob Coyle, Attorney Darrell Hotchkiss, Chris Stowe, Will Pushee, Attorney Dan Smith, Tony & Sue Ryan, Greg & Sawyer Hanlon
John Billings called the meeting to order at 7:00 pm at the Fire Station.
Item 1: Continued Public Meeting to Review a Site Plan Review Application for Completeness; Robert Coyle Proposes to Convert the Nichols Hardware Store and Lunch Counter to a Restaurant with Seven Additional Units; Application #07-02; Tax Map 201 Lot 73, 5 Main Street, Lyme Common District: John Billings asked if everyone had received the e-mails from Town Counsel Jae Whitelaw. The issue was the interpretation of section 4.46 G. in the zoning ordinance whether or not the building could include a conversion to a restaurant and still have a total of eight units rather than the six units provided in this section of the ordinance. There had also been memos relaying the opinions from Attorney Darrel Hotchkiss who believed eight units could be allowed and Attorney Dan Smith who believed only six
units could be allowed. A few moments were taken to review the memos and e-mails. Although Jae Whitelaw had initially stated to the Board that eight units could be allowed, after much review of the zoning ordinance, she determined there was no support of more than six units and the section should be interpreted literally. Dick Jones elaborated that if there were no conversion, the equitable waiver received by the applicant earlier would allow the eight units. However, when the conversion was proposed, the requirements for only six units became enforceable. The Board discussed that only a variance or a zoning ordinance amendment change would allow more than six units. Dick Jones stated the Board could approve the application for six units without a change in the application. Other Board members seemed to agree. John Billings closed the public meeting at 7:20 pm and opened the public hearing.
Item 2: Public Hearing: John Billings asked the public attendees if anyone would like to comment on the topic of the number of units. Darrell Hotchkiss stated the zoning ordinance could have been more artfully drafted, but the ZBA approved eight units knowing the intent was to convert a part of the building to a restaurant as it had been publicly noticed as such. He added the ordinance section merely stated Lyme does not like more than six units. His client did not want to lose two units, and he has a vested use as expansion of a nonconforming use. He felt it is up to the Planning Board under the conditional use approval. Dan Smith stated it is a matter of interpretation, but it is clearly stated that only six units are allowed. He added the impact of the proposal is
dependent upon the number of units as there will be many different types of users other than the restaurant. He did not feel this had anything to do with vested rights and the applicant had never argued this position before. He added the expansion of nonconforming uses is limited to 50%. Bob Coyle stating Dan Smith is making his proposal look like a huge monster. He stated the septic system is no longer proposed in the back of the building next to the Pushee lot, but it will be installed at the front of the building along Route 10. He pointed out that there are 14-15 units in the One Lyme Common building with office and retail spaces. The Nichols Hardware building had other uses in the past including a lawnmower repair in the back.
Will Pushee stated he was very excited when he heard a restaurant was proposed in Lyme, but he does not want it next door. He had resisted zoning when it was proposed, but now he wants protection from the restaurant proposal. He added the Coyles seem nice and he wants a business in the building, but he believes the quiet will be disturbed. He said he does not believe many people will be walking to the restaurant. He stated the issue is the magnitude of the open hours and he feels the zoning should protect its residents.
Darrell Hotchkiss stated if the Planning Board grants a conditional use approval, it could be conditional that there will only be six units. Bob Coyle stated there could be just six units: 1. apartment on the third floor; 2. one office unit on the second floor; 3. the post office; 4. the bank; 5. the proposed restaurant; and 6. the proposed office or retail space on the second floor. The basement area would be accessory to one or more of the six units. He stated he did not want to give up the eight units. Will Pushee stated he did not mind the noise from the site during the day; it was only in the evening. Bob Coyle stated he was not proposing lighting for the back parking area to deter people from using it during the evening hours. Will Pushee asked that the back grassy area and
garden be left alone. John Billings closed the public hearing at 7:45 pm and reopened the public meeting.
Item 3: Public Meeting: The Board discussed the six versus eight units. Dick Jones reiterated that a maximum of six units is required when there is a conversion, and six units could be an appropriate condition of approval. John Billings pointed out that the parking impact would not change according to the site plan review Appendix A as the uses in these units are based upon area. The Board discussed that there could still possibly be a greater impact by the increase of units, and there could be a difference in the number of employees. The Board discussed how to craft a condition for six units without completely annihilating a possibility to convert to eight units if a variance were obtained or the zoning ordinance amended to allow eight. Victoria Davis stated town counsel
had advised a new application should be sought if changing the number of units. Board members felt this was excessive. Michelle Balch questioned why the eight units would not be allowed if they were approved at a ZBA hearing. John Billings explained the approval was an equitable waiver which only confirms or denies what exists based upon the past; it does not provide a variance from a zoning requirement for a future proposed use. The Board determined to discuss this with the attending public. John Billings closed the public meeting at 8:00 pm and opened the public hearing.
Item 4: Public Hearing: Will Pushee thought it would benefit the applicant to only have six units so there would be less parking needed toward the back of the lot. He would like to see the elimination of the back parking near the maple which was cut, and he would like to see buffering. John Billings explained the parking for the retail and office units are determined by area so the number of units would not impact the parking requirement. Dan Smith stated if the Board approved the proposal of six units, the remaining two would be abandoned, and the only way to retrieve them would be a variance or zoning ordinance amendment. Bob Coyle stated this is exactly why he went for the equitable waiver; otherwise, he would have huge areas to rent with fewer units. Darrell Hotchkiss
added the approval could be for the six units only or it would be in violation of the conditional use approval. He then added that the Planning Board has the flexibility to reduce the requirements. Dan Smith again stated if the eight units are desired, a variance or zoning ordinance amendment would be needed. He added the Planning Board should not approve a proposal for six units if it is clear eight units are desired. He stated the problem is that Bob Coyle did not come to the Planning Board with the appropriate ZBA approvals. Table 4.1 of the zoning ordinance does not allow a restaurant, but only a conversion. The ZBA should have made a determination if a conversion was OK or not. John Billings inquired about the revised parking plan requested at the previous meeting to show parking spaces meeting the size requirements of the site plan review regulations and the Americans with Disabilities Act (ADA). Bob Coyle stated it was not
ready in time for this meeting. Will Pushee wanted to know if this application is approved if this will impact the review for future proposals in town. Dan Smith asked to see the site plan and asked where the septic system would be located as it is not shown on the plan. Bob Coyle showed that he is now proposing the septic system in the front and not the back of the lot. David Roby stated the approval will be based upon a plan which was not submitted yet. Bob Coyle stated the septic system will be a chambered system located in the front of the building under the proposed parking area. This type of system can be installed under parking. It will be where the gas tanks used to be located. When the septic system is installed, the soils contaminated by the recently discovered gas leaks will be removed. Dan Smith pointed out that a septic system is a structure and if it is located within a property setback, this will require a special
exception from the ZBA. Victoria Davis agreed. Dick Jones added the Board needs to see the final parking plan. John Billings closed the public hearing at 8:20 pm and opened the public meeting
Item 5: Public Meeting: Dick Jones stated a condition could be to limit the number of units to six. John Billings pointed out this is contrary to town counsel advice. The remaining Board members agreed to proceed with this application with a condition to restrict the number of units to six. The Board discussed potential findings of fact and conditions. David Roby again stated it is not the intention of the Board to deprive the applicant of eight units if he can obtain them through further legal action. The Board discussed the waivers. John Billings stated they need to articulate a reasonable argument for arriving at the 41 required parking spaces. Don Dwight responded that if additional parking is required, they have shown an area for additional parking. The Board discussed a parking calculation table done by Victoria Davis using Dan Brand’s suggested parking space requirements. John Billings reviewed the table with the Board. He stated although he is sympathetic to the
desire to avoid parking area in the rear of the lot, he is also cognizant of the need to justify the parking requirement. David Roby stated the parking appendix is only a guideline and they have testimony from the applicant that the parking will be adequate. John Billings added there has been no traffic study. Don Dwight stated he did not see how a traffic study could be done for a building with vacant units. Dick Jones responded State information would be needed, but it would be impossible to make an estimate as the building is mostly not in use. David Roby added that there is so much traffic now that he could not believe this proposal would make a meaningful increase. John Billings stated a traffic study might be illuminating to determine the number of needed parking spaces. Dick Jones stated the early evening would be the peak traffic though right now the peak is in the morning when people come for their mail. Michelle Balch stated
the parking spaces along the side of the building are full in the morning, and there are few cars there in the afternoon. John Billings closed the public meeting and reopened the public hearing at 8:45 pm.
Item 6: Public Hearing: Bob Coyle handed a letter from RSG (Resource Systems Group, Inc.) in White River Junction dated May 24, 2007. The letter provided a comparison of traffic during “a typical PM peak hour” between a hardware store and a 40-seat pizzeria. The information was obtained from the Institute of Transportation Engineers Trip Generation Manual, 6th edition. The estimated trip generation between 4:30 and 5:30 PM for a hardware store is 72 and for a high turnover restaurant with 40 seats at 20 – 40 depending on the calculation method. R. Chamberlin of RSG stated in the letter that he lived in Lyme for several years and although he believes the estimate for Nichols Hardware Store is too high, he believed it showed that the
hardware store would generate more traffic.
Bob Coyle stated the required 41 parking spaces is based upon the existing spaces at the property now which has served the past businesses and services. Dan Smith stated the Board must follow Appendix A of the site plan review regulations as they are shown as “minimum” standards. He questioned why the Board would emphasize an engineer’s (Dan Brand) opinion over the regulations. He stated the Board should not bend the rules as the parking area is already crowded. Dick Jones responded that Appendix A is considered guidelines as noted in Appendix A itself. Chris Stowe asked why the Board did not simply approve the earlier plan submitted for 65 spaces to meet the requirements. David Roby stated the Board has the flexibility to allow the 41 spaces. Darrell
Hotchkiss asked if the 41 spaces are approved if the applicant is bound to the 20 seats instead of 40 in the day. Dan Smith pointed out that the site plan review application stated there would only be 20 seats available in the restaurant during the day. Bob Coyle stated he was only trying to meet the concerns of the Board. Dan Smith stated he is just trying to be clear. Bob Coyle stated he would only provide 20 seats during the day. John Billings closed the public hearing at 8:50 pm and reopened the public meeting.
Item 8: Public Meeting:
David Roby continued reading from a draft of conditions he and John Billings had developed. Dick Jones stated the required landscaping plan must be approved by the Planning Board and not left up to the applicant and abutter. The septic system was discussed and David Roby stated that a condition could not simply state it must be approved by the State. He felt the abutters concerns should be addressed. Dick Jones disagreed stating the Health Officer would deal with any issues above the State’s approval. The Board discussed that parking must be on-site, the ADA requirements must be met, an alternative traffic circulation plan would be required if the State closes off access to the Park and Ride, and the applicant must show the best commercially reasonable technology to minimize odor, noise, and light
disturbances. John Billings stated he felt the latter is too vague. He felt mitigation information should be provided. There was discussion of requiring parking to occur only in the front after a certain hour, but it was questioned how the owner could enforce this. John Billings stated the customers would park near the door anyway. John Billings closed the public meeting at 9:00 pm and reopened the public hearing.
Item 9: Public Hearing: John Billings asked Bob Coyle about doing a mitigation plan. Bob Coyle responded he would inquire with ARC Mechanical Contractors. He added he will have tenants to consider as well. Will Pushee stated he would like a right of way through the Nichols lot to his property. He added Bob Coyle had offered this at the last meeting. He thought this would improve the traffic circulation as his traffic would not be “dead heading” traffic leaving from the Nichols building. John Billings stated this is a conversation between them and does not concern the Board. Darrell Hotchkiss questioned what Will Pushee would want for a landscaping buffer. Dick Jones stated the two parties should work together to come up with an
agreeable plan. John Billings stated any new plan should have the proposed landscaping on it.
Dan Smith pointed out again that the septic system would have to meet setback requirements. John Billings directed the Board to section 5.13 E. 2. and Appendix E which provides that new septic system shall not be installed within 400’ of “the wells that serve the Lyme Common community water system.” The previous proposal to place the septic system at the rear of the lot did not encroach into this area. However, the most recent proposal is in the front of the lot and within the protection area.
Victoria Davis listed additional information missing from the previous plan: proposed septic system location, proposed sign locations, location of proposed propane tanks, and label all catch basins. A list was provided to Darrell Hotchkiss. Bob Coyle stated he could not put the septic tank in the back of the lot due to State nitrate setbacks. He said the septic designer was coming the next day to see if the system could go between the garage and the main building. David Roby stated another solution would be to move the community well. John Billings closed the public hearing at 9:20 pm and opened the public meeting.
Item 10: Public Meeting: David Roby and Don Dwight both stated the 20 seats in the application had only been a suggestion and 40 seats should be allowed. At 9:25 pm John Billings closed the public meeting and opened the public hearing.
Item 11: Public Hearing: Bob Coyle questioned the length of the hearing process. Dan Smith stated he understood the frustration, but he felt more time is needed so the Board does not miss anything. He stated the Board just learned of the new proposed location of the septic system this evening, and they need to have all the information on a plan. Chris Stowe stated there would be conditions on the septic system approval. Will Pushee stated the proposal needed more land.
Dick Jones made a motion to continue the public hearing to 8:30 pm at the fire station on June 14th. Don Dwight seconded the motion and unanimous agreement followed.
The meeting adjourned at 9:30 pm.
Submitted by,
Victoria Davis
Planning & Zoning Administrator
Meeting Agenda for June 14, 2007 at Town Offices
7:00 Lot Line Adjustment Hearing for Jeanie McIntyre/Geoff Little & Sharon Besso
7:30 Minor Subdivision Hearing for Katie Jenks
8:30 Jenks Minor Subdivision Hearing
Meeting Agenda for June 28, 2007 - TBD
Neighborhood Public Meetings for Master Plan Discussion, 7:00 – 8:30 pm:
Tuesday, June 26th, Lyme Center Academy Building
Thursday, July 12th, Southern Lyme at undetermined location (maybe with tent)
Wednesday, July 18th, Jack & Judy Elliott’s barn
Undetermined date, Northern Lyme at undetermined location (around Breck Hill?)
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