Lyme Zoning Board of Adjustment Minutes
November 18, 2004
Board Member & Staff: Present: Members: George Hartmann, Alan Greatorex, Walt Swift, Ross McIntyre, Jim Poage. Alternates: Marcia Armstrong, and Margot Maddock. Absent: Jackie Glass, Alternate.
Public: Scott Nichols, Jim Nichols, Lloyd Nichols, and Nancie Griswold.
George Hartmann, Chair called the meeting to order at 7:34 PM.
Item 1: Approval of Minutes: Since the minutes of the previous two meetings had not been distributed, the Board determined to review them at a future meeting.
Item 2: Continued Hearing – Tarm USA, Inc.; Permit Application 04-099; M201 L73
Proposal: Add sign at 5 Main Street in the Lyme Common District.
George Hartmann asked that the same members who sat on the first Tarm USA hearing do so again. He asked Alan Greatorex to chair the hearing and appointed Marcia Armstrong to sit as a voting member. George Hartmann did not sit on the hearing as a voting member as he had not been present previously. Alan Greatorex summarized the last meeting when the Board denied an Administrative Appeal and had continued the hearing to review the variance request.
Scott Nichols stated he would like the application reviewed by the ZBA and not passed on to the Planning Board. He added he had sent a letter dated November 3, 2004, and the Board confirmed they had each received a copy. The letter had suggested that the Nichols Hardware might remove the town’s bulletin board to replace it with a sign. Jim Nichols added that the café had been allowed to put up a sign a few years ago and the interpretation of the ordinance must have been different at that time. Victoria Davis stated when Scott Nichols had pointed out that the café had put up a sign approved by the town in the past, she checked the file and there was no permit for a sign. She added that she vaguely remembered the previous café owner coming in, but she did not recall why. Scott Nichols stated he remembered that the previous café owner had built the sign to meet the sign requirements under the ordinance.
Scott Nichols stated that without a sign at their retail store for the Tarm USA business, people are unable to find them. They had a truck with Tarm USA on it to indicate their location, but while the truck was elsewhere over the weekend, a customer stated they could not find them and almost gave up.
Ross McIntyre made a motion to enter into deliberations. Marcia Armstrong seconded the motion, and unanimous agreement followed. Walt Swift stated the Board had asked Victoria Davis to inquire of the Planning Board the intent of the sign area requirement and if they would amend it. Victoria Davis reported she had submitted a proposed amendment change to allow the total 16 square feet area per sign side for each business rather than for all businesses on a lot. The Planning Board did not accept this change but rather suggested an amendment to allow additional sign area during site plan review. She added that this is irrelevant to the hearing as the amendment has not been publicly noticed yet. Jim Poage stated there had not been a dramatic change in the Tarm USA business to trigger a need
for a site plan review. Ross McIntyre stated that section 12.10 requires a site plan review with a change or expansion of a business; however, incremental change is part of the nature of business – though at some point the change becomes major.
Jim Poage stated the office building on the common could make the same variance argument for a sign for each business. He inquired if this would be acceptable. Scott Nichols pointed out that offices are different from retail businesses as the latter relies on signs to draw in customers. Alan Greatorex suggested the master plan should be consulted to determine the desired growth in the Lyme Common District. At 8:15 PM, Walt Swift made a motion to table the hearing until after the next hearing. Jim Poage seconded the motion, and unanimous agreement followed.
Item 3: Neal & Nancie Griswold; Permit Application 04-110; M404, Lot 48
Proposal: Addition of mudroom and garage.
George Hartmann chaired the hearing. Ross McIntyre recused himself as his wife is an abutter to the Griswold lot. George Hartmann appointed Margot Maddock to sit as a member. Victoria Davis presented the case. She told Nancie and the Board that there had been a conservation easement involved in the subdivision development which might have triggered a special exception under 4.64 (agricultural soils conservation district) B. 9. However, the conservation easement was found, and it had been executed shortly after the zoning ordinance had been adopted, so the section did not apply. The Griswolds had applied for an Equitable Waiver for the existing house, a Special Exception under section 8.24 to build the addition on agricultural soils, and a Variance if the Special Exception request
failed. Ross McIntyre stated, as an abutter, he is not opposed to this proposal.
The Griswolds applied for an Equitable Waiver since their house is located on Agricultural Soils per the Natural Resources Conservation Service (NRCS) maps. Victoria Davis pointed out that the soils maps submitted at the 1989 subdivision hearing establishing this lot, had shown that the existing house location (but not the driveway) may have been on non-agricultural soils. This was probably in error since the NRCS soils data was the same in 1989 as it is today. A permit to place a house in its current location was granted in 1991. If the Zoning Administrator was using the soils map submitted at the subdivision hearing, then it would have appeared that the house site was probably on non-agricultural soils (it’s very close to the soils line), but the driveway would have crossed agricultural
soils no matter which map was used. No ZBA hearing was held for this permit. It was further noted that “access ways” were not directly addressed under the conservation district sections at that time as they are now. Alan Greatorex made a motion to enter into deliberations.
Margot Maddock seconded the motion, and unanimous agreement followed. George Hartmann suggested they should first address the existing house. The Board felt although it is ambiguous whether or not they should grant an equitable waiver (which is for use rather than dimension), they determined it would be better to clear up the record. Jim Poage made a motion to grant the equitable waiver for the house permitted in 1991 on what is designated as agricultural soils. Alan Greatorex seconded the motion. Walt Swift voted against this motion as he felt the waiver was not necessary and he did not know the location of the house. George Hartmann, Jim Poage, Alan Greatorex, and Margot Maddock voted for this motion. The motion passed 4 to 1.
Moving on to the special exception request, Walt Swift noted that the “nonconforming structure” definition did not specify a requirement that the structure was built before zoning adoption though this has been the assumption of the ZBA in the past. It was also noted that this definition had been applied to a post-zoning structure in a previous hearing for Lynch. Alan Greatorex made a motion to approve the special exception under section 8.24 with the following findings of fact and conditions.
Findings of Fact:
1. A permit was issued by the town to place the house on the site in 1991.
2. The house location is shown to be in the Agricultural Soils Conservation District.
3. The house is a non-conforming structure according to the definition and section 8.24 can be applied.
4. The addition will not significantly affect the agricultural soils due to the existing development of the house.
5. The addition cannot reasonably be located elsewhere.
6. The lot coverage encroachment into the conservation district will not be larger than 1,000 square feet. The proposal is for a 972 square foot addition which will leave 28 square feet for future development within a conservation district by special exception.
7. There will be no increase in sewage load.
8. The property is not located within the Flood Prone Area Conservation District.
9. There are no other outstanding issues as the building conforms to the maximum footprint and the addition will not be located within any property setbacks.
10. The proposal meets the requirements of section 10.50.
Conditions:
1. The addition shall be built substantially as presented and using Best Management Practices to minimize the impact to the land including erosion during construction.
Walt Swift seconded the motion, and unanimous agreement followed. The Board expressed concern that the Planning Board review this section of the zoning ordinance to insure the intent is represented in the language.
Item 4: Continued Hearing – Tarm USA, Inc.; Permit Application 04-099; M201 L73
Proposal: Add sign at 5 Main Street in the Lyme Common District.
The Board picked up deliberations of the Tarm USA hearing at 8:55 PM. George Hartmann again appointed Marcia Armstrong as a voting member, asked Alan Greatorex to chair the hearing, and assumed a non-voting status. Alan Greatorex stated he preferred not to put the Nichols through an appeal process. Jim Nichols stated he still does not understand how the Board could interpret the ordinance to mean 16 square feet per lot and not per business.
Marcia Armstrong made a motion to approve the variance to add a sign to the building. She reviewed the requirements for a variance and stated it is an unnecessary hardship because nobody will know where Tarm USA is located without a sign. Alan Greatorex seconded the motion. Jim Poage stated he feels there is no real proof that the variance approval is not contrary to the intent and spirit of the ordinance. Ross McIntyre said he felt torn, but the ordinance is explicit in the 16 square feet per lot and if they granted a variance they would not be upholding the ordinance. Alan Greatorex felt granting the variance would prompt the Planning Board to clarify this section. Jim Poage stated he feels there is an increased perception of the development of the Lyme Common area. Walt Swift
responded that this is not the issue as the application is for a sign for an existing business. Scott Nichols asked if he removed the town’s bulletin board if he could replace it with a sign. Victoria Davis responded that such an application would be referred to the ZBA as it is not clear if a bulletin board is a sign. The motion was put to a vote. Marcia Armstrong and Alan Greatorex supported the motion, and Ross McIntyre, Jim Poage, and Walt Swift were opposed. The variance was denied by a vote of 2 to 3.
Discussion continued and Victoria Davis pointed out that Scott Nichols had stated they had purchased Tarm USA in 1994 and the Site Plan Review Regulations had been adopted in 1997. She questioned if the Nichols should have applied for Site Plan Review. Scott Nichols did not believe they should have. She then inquired again about the past signs for the café. Scott Nichols again stated the signs had been sporadic and not up all the time. Victoria Davis said she would inquire with Town Counsel about the grandfathered status of the café sign.
Item 4: Other Business:
The Board requested a copy of the proposed zoning amendments for comment. Victoria Davis pointed out they had been sent a copy by e-mail some time ago, but they have been changed since. The Planning Board will meet again to discuss them next Tuesday, and the latest version will be sent out to the ZBA members afterwards.
The meeting adjourned at 10:00 pm.
Victoria Davis
Planning & Zoning Administrator
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