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Lyme Planning Board Minutes
May 24, 2007
Board Members & Staff: Present: John Billings, Member; Dick Jones, Selectboard Representative; Michelle Balch, Member; David Roby, Alternate; Don Dwight, Alternate; and Victoria Davis, Planning & Zoning Administrator Absent: Jack Elliott, Chair; Stephanie Clark, Vice-Chair; and Ben Kilham, Alternate
Public: Will Pushee, Attorney Dan Smith, Rod Finley of Pathways Consulting, Attorney Darrell Hotchkiss, Robert Coyle, Denby Coyle, Dan Brand, Tony Ryan, Sue Ryan, Simon Carr, Nancy Grandine, Blake Allison, Nancy Allison, Tom Goodrich, Allie Farrar, Harry Glass, Martha Diebold, Peter Diebold, Janice Treadwell, Peter Treadwell, Greg Spitz, Robert Gilbert, Faith Catlin, John Griesemer, John Beesley, Cynthia Bognolo, Delores Drew, Richard Drew, Carolyn Steffey, Ursula Slate, Frank Bowles, Jessica Lahey, Tim Caldwell, Sherrill Robinson, Don Metz, Norm Wakely, Laura Brannen, Trent Toensing, Lloyd Nichols, Peggy Little, and Jackie Glass
John Billings was acting as chair. Jack Elliott and Stephanie Clark had recused themselves from this case at the last meeting. John Billings called the public meeting to order at 7:00 pm at the Fire Station.
Item 1: 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: Dick Jones went through the Site Plan Review Regulations application requirements. Missing information included: traffic information under section 10.3 and 10.4; No signs or location of proposed propane tanks shown on plans under section 10.5; catch basins not labeled on plan and no drainage information provided under section 10.6; under section 10.8 State and Federal approvals, no State approved septic system design was provided and no final NH Department of Transportation (DOT) Driveway Permit was available though
a letter dated May 24, 2007 from DOT was submitted which stated the permit was verbally approved and subject to an encroachment agreement needed to use the abutting DOT Park and Ride for traffic egress. A draft encroachment agreement was attached to the letter. The encroachment can be terminated at any time by DOT.
Dave Roby made motions to waive each of the above missing application requirements. Don Dwight seconded the motion, and unanimous agreement followed. Dick Jones made a motion to deem the application complete. Don Dwight seconded the motion, and unanimous agreement followed. Victoria Davis presented a written statement of application completeness to Darrell Hotchkiss, attorney for the applicant.
Item 2: Public Hearing for Site Plan Review and Conditional Use Approval: John Billings called the hearing to order. He outlined the format for the hearing. Applicant, Bob Coyle gave a brief presentation of his proposal. On behalf of the applicant, Attorney Darrell Hotchkiss stated the Board has discretionary power in reviewing the application. He suggested that the site should be properly developed as required by town regulations, but the applicant should not be required to go to the expense of accomplishing this all at once. He stated the total required parking spaces can be provide, but everyone may want to see if all the parking is actually needed before it is installed. He added it would be too bad to take down a large ash tree to provide parking. On behalf
of abutter Will Pushee, Attorney Dan Smith stated the Pushees would like to go on record as opposing this proposal. It may not be a bad thing for the town, but the Pushee residence is within 30’ of the Nichols rear lot line. He stated there will be impacts upon the value of the Pushee property and negative impacts during the evening when the restaurant is open. He emphasized that there are two applications for the Board to review: site plan and conditional use approval. The Site Plan Review Regulations state that the Conditional Use Approval should be addressed prior to the site plan. He stated a restaurant is not permitted in the Lyme Common District according to Table 4.1 in the zoning ordinance. He felt a restaurant could only be approved in the narrow proposal of an office, studio, and restaurant conversion. He added that section 4.46 G. Conversions in the zoning ordinance requires that there be no more than six units. The
Nichols building has eight units. He stated the applicant must go back to the ZBA for a variance from this strict requirement. He felt the Board could not review this case until all ZBA approvals had been obtained.
Martha Diebold stated she is a commercial abutter and totally in favor of the proposal. She stated as a real estate broker that the conversion would probably be good for real estate values in the area. Her tenant in the apartment of her commercial building is looking forward to a pizza restaurant next door. Greg Spitz stated there was a restaurant in the Nichols building previously and it had been active. He assumed the restaurant had been there before the Pushee property. Will Pushee, abutter, stated he is a native and this is a hard issue. He felt others could favor the restaurant because after they picked up their pizza, they could drive away to their homes. He added he could do this as well since he lives on East Thetford Road, but whoever ends up living in the Pushee house
behind the Nichols building would be impacted by the noise of the proposed restaurant. He stated the house is in a prime location, and currently is very private.
Earl Strout stated it is sad to see the common area languishing, and he is completely in favor of the proposal. Tom Goodrich stated the restaurant would be a great addition to the community; it would be resident-owned, a nice place to gather, and it should be encouraged. He did not feel there were many other alternative uses. Allie Farrar stated the Long River Studios business plummeted once Nichols Hardware closed. Tony Ryan stated he heard many arguments in favor of the proposal, but he did not believe it could legally be installed there. He had a strong objection to the chair cutting people off before they were finished speaking. John Billings explained he wanted to give everyone a chance to speak and could come back to people to add more to their comments. Dan Smith stated the
Coyles have substantial support and are popular residents, but Lyme is a community of rules. The Board cannot throw out the rules because of a particular applicant. He added a variance is needed as well making as a case for a conditional use approval. Under section 3.21 of the zoning ordinance, it states the Lyme Common should be retained as residential in nature with an emphasis on residential integrity—not commercial. He stated the doors of the restaurant will close at 10:30 pm, but people will still be leaving after this. He read from Article XII of the zoning ordinance, and stated the proposal could not meet these conditional use approval standards. He added that most people want a pizza restaurant, but not in their back yards.
Mark Spitz pointed out that section 3.21 stated a mixture of neighborhood business uses should be supported. Bob Coyle stated property values of Alden Inn abutters have not changed. Laura Brannen stated she is an abutter of the Alden Inn, and she misses the activity although some music was annoying. Cynthia Bognolo stated she has rental property abutting the Alden Inn, and it was unpleasant. She questioned the control of parking and noise from public places. Faith Catlin said she abuts the Alden Inn and the Bognolo rental properties, and when they moved to Lyme, they understood they had neighbors. They miss the Alden Inn. Sherrill Robinson stated she supports the proposal, the Coyles will be great employers, and it will provide local employment opportunities for teenagers.
Darrell Hotchkiss noted the ZBA Notice of Decision dated March 27, 2007, stated the eight units existed prior to zoning. Ursula Slade stated having a business here would be nice so people did not have to drive and contribute to global pollution. Jerry Robinson stated we are lucky to have this proposal. Dan Smith stated Will Pushee is not against commercial use if it closes at 5:00 pm and is not open on Sundays. He added this is an intensification of use which will cause increased traffic in the common area which can be a danger to children in the area. He stated it did not matter if the eight units were grandfathered. The zoning ordinance prevents making every unit above six available for use in a conversion. He added there is no landscaping buffer and the parking is a problem. Frank Bowles stated he supports the proposal. He added that as an engineer he believes the noise, odor, and site lighting have straight forward
solutions so they would not be objectionable to the abutters.
Trent Toensing spoke in favor of the proposal. He pointed out the front of the current Nichols Hardware is not attractive now so landscaping is not an issue. The proposal will be more attractive and a boost to community vitality. Tony Ryan expressed he is impressed by those speaking in favor of the proposal. However, he wished to express a rhetorical question for the Board to mull over: How many in favor of the proposal voted for the zoning ordinance which would not allow this use? Will Pushee stated he wished it were not a problem. He thought a better location would be on Britton Lane by Tuckaway Timber. He used the old snack bar on Route 10 as an example. This had been located in a field. He added the snow in the Park and Ride gets above his head and it blocks the
sight distance to Route 10 and East Thetford Road. Dan Smith stated that although Will Pushee may have stated previously that he did not want screening between the lots, the property would absolutely need protection and screening. Bob Coyle stated he would be happy to put up a line of trees between the properties. Will Pushee stated it was a hard change. He added that Wayne Pike’s three tenants love their privacy and quiet. He stated his father is “being kicked in the head” with this proposal. He would not worry about the proposal if he could sell the house for a high price. Bob Coyle stated the house is vacant so the proposal is not impacting anyone. John Billings responded that the potential is there since presumably someone will live in the house at some point. Frank Bowles stated he had lived in the apartment on the third floor of the Nichols building three years ago, and it had been very quiet though the
hardware store and other businesses were very active.
Dan Smith stated there will be essentially one way traffic flow with egress through the Park and Ride. They cannot get a permanent easement as he has talked with Doug King at DOT. The Pushees are obtaining a residential permanent easement at substantial cost, but they could not obtain a commercial easement. What Bob Coyle will get is a temporary license which is revocable at any time. Dan Smith added that the Town has right of first refusal on the property, and the State does not want to put any unnecessary permanent restrictions on the property in case they sell to someone. He again emphasized that Article XII section A. 13. would be impossible to meet as this section requires the proposed use not be more offensive than permitted uses in that district. Darrell Hotchkiss stated the
easement is important to Pushee as that lot is landlocked. He added that a commercial easement could never be more than revocable, but if it were revoked they would be able to provide two way traffic on the lot by shifting parking spaces. Blake Allison asked how the attitude survey would impact the zoning ordinance. John Billings explained it could impact the master plan update which drives the town’s regulations and ordinances.
Victoria Davis read a letter submitted by James Graham and dated May 21, 2007 in favor of the proposal. She read an e-mail from Garry Thrasher in favor of the proposal. Don Dwight summarized a two page letter from Eileen McGuckin dated May 19, 2007 outlining her vast restaurant management experience and her experience that the police had never been required for any reason in her years as a restaurant manager. She added that an educated management and staff are keys to responsible alcohol sales and consumption. She was responding to the concerns expressed by Police Chief Field in a letter distributed at the previous meeting. Dan Brand had submitted an e-mail, but since he was in the audience, he addressed the Board. Dan Brand stated that he is a traffic engineer and he reviewed Appendix
A of the Site Plan Review Regulations which provide guidelines for parking requirements and the Institute of Transportation Engineers Parking Generation Manual. He stated that after much review, he felt the 0.5 parking spaces per seat in a restaurant with take-out was a too high. He believes it should be 0.4 parking spaces per seat for the evening and only 0.2 during the lunch time as many customers will walk to the restaurant.
John Billings asked if there were any further public comments from the public or from the Board. Dick Jones expressed concern about how the public could continue to be involved in discussions as the Board proceeded. John Billings suggested the public hearing could continue until the Board felt they had the information they needed by asking further questions of the applicant and others. David Roby stated he would be interested to learn more about the technologies to mitigate negative impacts from odor, noise, and light as mentioned by Frank Bowles earlier. He added that landscaping should be a condition of any approval. Rod Finley stated the lighting shown on the site plan is sharp cut-off fixtures similar to those at the Lyme Nursery School. There are only two lights proposed. Bob
Coyle added the lack of lighting at the back of the parking was to discourage people from parking there in the evening. He stated again that he would be willing to landscape along the Pushee property line. Will Pushee stated cars cannot get by the mail truck when it comes to the post office, so people cannot get to the back parking area. He said he might need a 12’ fence to protect his property from the noise. He stated he still has a right of way across the Nichols land to his house. When questioned, he said there is no easement in writing, but he has photographs to prove he has this right of way.
David Roby read an e-mail from Jae Whitelaw, Town Counsel stating that the eight units should be allowed in this conversion as they had been approved by equitable waiver by the ZBA. She stated the Board cannot deny the proposal based upon section 4.46 G. of the zoning ordinance. Dan Smith stated this was wrong. The ZBA decision was not tied to section 4.46 and the decision had nothing to do with the conversion limit of six. Darrell Hotchkiss replied the eight units existed in 1983. John Billings read the ZBA public notice which stated the application was for the conversion to a restaurant. David Roby stated the site plan review parking criteria is not an absolute. The zoning ordinance only requires the parking to be on-site. It is possible for the Planning Board to approve
the proposal with a lot less parking with the condition that if the parking proves to be inadequate, the parking area will be increased or the uses reduced. Bob Coyle stated the ZBA had said the parking criteria are set in stone, but no one wants to pave the entire lot. However, they do have the required parking area if necessary. Darrell Hotchkiss stated no one wants to overdevelop the site. Will Pushee said he wished there was more land for this proposal. Rod Finley showed the edge of pavement on the site plan drawing. John Billings stated the parking space requirements provide the parking spaces in paved areas be 9’x20’ and 10x20’ in unpaved areas. The cross aisles are 20’ for paved areas and 24’ for unpaved areas. The proposed parking does not meet this criteria. Rod Finley stated they could change the parking spaces to meet the criteria. He added they would lose a couple spaces if they
saved the large ash tree on parking space #16 and the grassy area on #15. John Billings questioned the handicapped parking spaces. Rod Finley stated if they did not build the parking area at the rear of the building, they would have fewer than 50 spaces and would only be required to provide two handicapped parking spaces as shown on the plan. Parking spaces #10 and #14 were placed along the porch. The vehicles would have to park so their doors could open despite the posts holding up the porch roof. Victoria Davis said she could show preferred handicap parking spaces per her discussion with Cheryl Killam of the Governor’s Commission on Disability.
David Roby inquired about the DOT letters. Bob Coyle said the easement would have been approved, but there was not a notary available in time. He stated there would be no conditions for this approval except the barriers along Route 10 as shown on the plan. Rod Finley added they had made traffic one-way per request of DOT. Bob Coyle stated Bruce Barnard had done the septic system calculations, and he was working with DOT and the Department of Environmental Services (DES) to give a septic loading easement on the Park and Ride land to provide for the increased use of the restaurant. He will not go forward with the design until he feels the Board might grant his approvals. He pointed out the leach field to be located in the northwest area of the lot where the back parking lot is shown.
Will Pushee expressed concern that this is a gravelly area and his well is a short distance away and down gradient. He stated the well closest to the Nichols property is no longer used as it was contaminated by salt from the parking lot run-off. The well they use now is in the basement of the house. He would like the well in the basement to be tested. Dan Smith asked if the septic system would be viable in this location, and how anyone could have input upon its approval. Bob Coyle stated it is in a viable space. Will Pushee stated the snow melt from the pile at the northwest corner of the Nichols lot drains onto his property.
David Roby asked Darrell Hotchkiss to give a response to Article XII #13. Darrell Hotchkiss stated there had been a survey circulated to the area residents with similar language to #13 as required by the ZBA. Denby Coyle stated 22 of 23 people signed the petition in favor of the restaurant. Darrel Hotchkiss added an engineer could address noise, fumes, odor, and vibration. He also stated that one person does not make a neighborhood. He stated the Pushee property has commercial potential as well. Dan Smith countered they could not get a permanent right of way from the State for commercial, only residential. Will Pushee stated he is waiting to see if the Nichols property receives a State easement before he pays for his residential State easement to his house. Darrell Hotchkiss
stated the Nichols property has road frontage, so the easement is not as critical. Bob Coyle added that the Pushees could have commercial access over the Nichols lot. Darrell Hotchkiss stated they could keep the snow off the property by removal if it were an issue for the leach field. Dan Smith stated it was the first time he had heard there would be a large septic system at the back of the lot. Rod Finley stated there are nitrate setbacks for systems and they must be a set distance from any wells. Dan Smith stated no one there knew if the septic system is viable or not. Bob Coyle stated he is asking for a conditional approval subject to septic system design approval by the State.
John Billings closed the public hearing at 9:30 pm.
Item 3: Public Meeting Deliberative Session to Review Site Plan and Conditional Use Approval Proposal: John Billings opened the public meeting for the Board to deliberate on the proposal. David Roby suggested they continue discussion tonight and then continue the meeting to next week for further discussion. Dick Jones stated the parking requirements did not take queuing theory into account which could reduce the necessary parking spaces. He added they do not want a Wal-Mart parking lot downtown. He also added there is not enough parking now. Don Dwight asked, “whose fault is that?” Dick Jones announced the Selectboard and DOT would be meeting at the Selectboard meeting next week to discuss the future of the park and ride.
John Billings asked Don Dwight to go through the conditional use approval criteria provided in Section 12.20 A. of the zoning ordinance to determine if the application met each requirement: 1. The proposal is part of the mixed use supported by section 3.21; 2. David Roby stated the applicant cited master plan sections which support the proposal; 3. The Board determined the septic system approval would be a condition of any Board approval. Victoria Davis pointed out the exact location is unknown and the Conservation Commission may need review; 4. David Roby stated Will Pushee does not believe it is a compatible use, but the Board does; 5. Don Dwight stated on balance, there would be no adverse impact. Dick Jones added people visiting the site in the evening would be
toward the front of the building away from the Pushee property. David Roby stated it would be an easier determination if the restaurant were to close at 9:00 rather than 10:30 pm, but the change was not sufficiently great to be adverse; 6. The Board agreed the character of the area would not significantly change; 7. Dick Jones stated there would be no hazard assuming the septic system would not be an issue. David Roby responded the proposal will not be approved unless the septic system is deemed to be safe; 8. Dick Jones stated a condition for best management practices should be made to insure protection from excessive production of traffic, noise, smoke, fumes, glare, or odors; 9. Dick Jones stated the proposal would be an improvement to vehicular approach; 10. David Roby stated there would be no damage to historic structures; 11. The Fire Chief supported the proposal. Dick Jones stated the Police Chief had retracted many
of her original concerns in her second letter to the Board; 12. No applicable approvals required by the ZBA; 13. John Billings stated strict interpretation would disallow any use and the Board needed to look at the proposal within the context of the entire town; 14. Don Dwight stated the proposed parking is adequate. Dick Jones stated the Site Plan Review Regulation guidelines of Appendix A should be waived as inadequate per Dan Brand’s testimony. John Billings stated the only zoning requirements are under Article VII or the ordinance which states the parking must be on-site with two parking spaces per dwelling, one parking space per employee, and such additional parking spaces for business and institutional uses as shall be established by the Planning Board…. David Roby added, the Board did not want to waive Appendix A, but could approve a plan with fewer spaces than those required by those guidelines with a condition that if the number of
parking spaces proved to be inadequate, more spaces would be required to be added or certain uses of the building to be reduced.
John Billings stated that snow storage and removal is still a concern in having an adverse impact on the park and ride and the Pushee property. Dick Jones added the snow gets piled up 8-10’ by the Route 10 and East Thetford Road intersection obstructing views. David Roby expressed concern about Dan Smith’s legal point. Dick Jones replied that the Board should follow Town Counsel advice that the equitable waiver overrides the requirement of 4.46 G. to only have six units for a conversion. David Roby stated it would be reasonable to have the abutter’s counsel (Dan Smith) provide a memo to Town Counsel to see if there should be any reconsideration. Dick Jones stated the memo should be presented to the Board and then sent on to Town Counsel. Don Dwight felt the attorney to
attorney suggestion was outside the purview of the Board. The Board determined to allow the memo to avoid a potential law suit. John Billings stated an approval for the conditional use approval could be granted if Town Counsel held to the same opinion of the impact of the ZBA decision upon section 4.46 G. of the zoning ordinance.
The Board discussed possible conditions: State septic system approval; parking with handicapped parking per American Disabilities Act (ADA) requirements; snow storage and removal; odor, noise, and light disturbance mitigation; and landscaping. Dick Jones stated the rear parking area could be eliminated and they should keep the ash tree. John Billings closed the public meeting and re-opened the public hearing to take testimony from Bob Coyle to determine the original proposal parking spaces. Bob Coyle stated there had been 41 spaces and there was no greater impact than previous use with 40 spaces. He added he would obtain the assistance of an engineer to re-draw the parking with appropriate handicapped parking spaces. John Billings closed the public hearing and re-opened the public meeting. David Roby emphasized the parking for the proposal should occur on-site and not in the Park and Ride. John Billings pointed out the dimensions of the parking spaces did not meet the
criteria of Appendix A. Dick Jones stated the spaces in unpaved areas were required to be a foot wider as they were not painted to direct people into the spaces. David Roby stated the plan should show landscaping buffer between the two lots. The Board determined the minimum parking spaces should be 41 including handicapped spaces according to ADA requirements. David Roby suggested that he and John Billings draft conditions for an approval to the conditional use approval application to be discussed at a future meeting.
John Billings continued the meeting to Thursday, May 31st at 7:00 pm at the Fire Station.
The meeting adjourned at 10:30 pm.
Submitted by,
Victoria Davis
Planning & Zoning Administrator
Tentative Meeting Agenda for May 31, 2007 at Fire Station:
7:00 Continued public hearing for Bob Coyle
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
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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