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Lyme Zoning Board of Adjustment
Minutes: March 15, 2007
Board members: Present - Alan Greatorex, Chair; George Hartmann, Walter Swift
Absent -Jim Poage, Ross McIntyre
Alternate members: Present - Frank Bowles, Margot Maddock, Jane Fant
Staff: Vickie Davis, Zoning Administrator; Adair Mulligan, recorder
Public: Bob Coyle, Denby Coyle, William Pushee, Wayne Pike, Tami Dowd, Chris Stowe, Garry Thrasher, Scott Nichols, Tony Ryan, Sue Ryan
Minutes of the November 16, 2006 meeting were passed over on a motion by George, seconded by Frank. Alan was reelected chair on a motion by George seconded by Margot. Ross McIntyre was re-elected vice chair on a motion by George seconded by Frank.
Alan appointed Margot and Frank as regular members, after the applicant and Scott Nichols indicated they had no objection to Frank serving. He volunteered that he is a member of the town building committee which might have an interest in the Nichols building.
Robert Coyle, Applicant, Permit Application 2007 - 006, Map 201, Lot 73
Project: convert first floor of Nichols Hardware store to restaurant and market at 5 Main Street.
Robert Coyle proposes to convert the Nichols Hardware store and lunch counter at 5 Main Street (Map 201 Lot 73 in the Lyme Common District) to a restaurant and retain the remaining eight units. He is applying for an Equitable Waiver to retain the right for nine units and if that fails a Variance from section 4.49 for the same. He is also applying for a special exception for the joint use of parking spaces under section 7.26.
Alan asked that testimony focus on the appeal for an Equitable Waiver or Variance and for the parking issues, noting that a site plan review hearing by the Planning Board may be a better venue for other issues. Bob Coyle noted that there had been confusion on the tax card (copies of which were provided to all members) when he checked for square footage. He passed out replacement figures. He plans a small pizza area and food market with wines in the front part of the store, and an Italian restaurant in the main area, separated by a wall. There will be two ADA-equipped bathrooms in the rear. The Zoning Ordinance specifies that there may only be six units per building, however, he said that the Nichols building always had more, as has 1 Lyme Common. Past rulings of the ZBA
have confused the issue. In 1998, when a Special Exception was granted to build a single apartment in the attic, Bob said that the owner made a good faith error, since the owner considered that it had one tenant in 1998, although in 1983 Guy Nichols had permission to put four units on the second floor.
Bob said he thought that the existing number of units at Nichols is nine, composed of the apartment (permitted in 1998), four office spaces on the second floor (permitted in 1983), the bank, the post office, two spaces on the first floor (lunch counter and hardware store), and the 8000 sf basement. He said he needs to end up with nine units, no matter the configuration, to support the mortgage he would need, and that there would be no greater impact than the past use. George asked about the second floor offices. Bob said that Tarm USA is now using two and there are two more small empty offices. He said he went to an informal Planning Board meeting in the fall.
Walter asked about hours of operation, and Bob said he plans that the restaurant and food market would be open 11am-10pm. The restaurant bar would be for beer and wine only, and there would be separate liquor licenses. The other businesses would be 9-5. He continued that he needs 56 parking spaces, and shows 41 on the plan. When Guy Nichols owned the building in 1983, there were 35, and it was considered that if paved and painted, there would be 10 more. During town meeting, Scott Nichols had observed 41 cars parking on the site. Not all spaces are paved or painted; he plans to grade and pave eventually. The back loading dock would be retrofitted and become part of the two first floor units. The apartment is occupied. On the second floor, there are six office rooms, plus
some common area. Walter noted that there is currently one business occupying two units’ space.
Scott said that 1 ½ years ago, there were two businesses there, and one area was used as storage. Bob displayed the prior layout of the second floor. Walter said there had been many changes in the use of the building, in the most intense traffic area of the common; the Zoning Ordinance’s intent is to control traffic, so the board must be careful in identifying uses through section 10.40. He felt there were only six units. Vickie Davis noted that the definition of “abandoned” includes “with no intent of reclaiming the use.” Walter said he wanted more detail on the last six years, so he could compare needs for parking, and to consider the kinds and timing of uses. Bob said that other than the market and restaurant, uses would be 9-5 on
the first floor. He said that six units would not meet the full capacity of the building. Frank commented that the economic health of downtown Lyme should be considered. Walter said that in 1998, Jim Nichols got a special exception because the ZBA was told there were only six units. Bob said that he thought this was an error made in good faith, because Jim had counted the number of tenants, not the units. He thought the site should be considered more constricted by septic and parking constraints than by the number of units. Walter asked for the area in square feet of each unit.
William Pushee spoke, representing his father, Albert Pushee, who lived for many years in a house behind Nichols. In 1949, he had a drive to his property. The use has grown. Albert now has a ROW deed for his paved drive, and has gone to court to get it made permanent. He said that two stop signs and two way traffic should be arranged around the building. He said that if a fire truck uses the newly installed dry hydrant behind Nichols, where the town had spent money to dredge a pond for the fire department, it would shut traffic down. He said the area has to be left open for the fire department. He added that the proposed plan would devalue his father’s property, and he doesn’t want headlights in his windows at 10 pm. He said that the proposed use is too
much and too close to his property.
Alan asked about the wording of the right of way. Will said that it is a permanent ROW that will not interfere with the park and ride, but if Route 10 is run through the property in the future, it would change. Alan asked for a copy of the state’s decision. Will said that the building should be filled with businesses that close at 5 pm. Frank said that what controls the property value of the Pushee house is the future of Route 10. Wayne Pike said that the state does not currently own beyond the park and ride lot. Garry Thrasher asked why the ROW is important. Walt explained that in section 10.40, the board must consider traffic flow and fire protection, and must consult the neighbors. Bob said he is working with DOT on a driveway permit. Vickie noted that the fire
department has an easement with Alfred Pushee, not Nichols, to use the pond.
Scott said that cars can be moved by the fire department if necessary, so he doesn’t think that parking there will affect fire fighting ability. He expects that the businesses would share Latham Lane (the drive through the park and ride lot), and that there should probably be a stop sign. He felt the value of the Pushee property would increase with the project, probably because the property would have more value in other than residential use. Scott continued that the fire department does not have the ability to limit the use of a property. After 2000, his family listed seven active uses and two other empty units, but did not ever have the intent to abandon any potential rental space. The uses on the site are now six days/week, and the post office trucks go in early
in the morning and late in the day. The drive up post box and the bank ATM are used at all times of day. Frank said that he had lived in the apartment at one time, and could confirm that there was traffic around the building at all hours.
Bob said that a 40 seat restaurant would not have the capacity to fill the parking lot unless all patrons came in separate cars. Scott said that his father’s intentions in 1998 were not to give away rights to any units, and that he reported the number of people working in the building at the time, not the number of viable office spaces. He added that he had suggested a fence to Will Pushee to make the Pushee property more private. Will said that his family enjoyed their view of the common. Tami Dowd asked for the definition of unit, and when that was read from ordinance, she asked about potential impact on parking for the bank and post office. Bob said that, based on maximum occupancy, the Planning Board had told him he needed 53-65 spaces. If the current criteria
were applied to the Nichols Hardware business, they would need 67.5 spaces, however during the full occupancy of the hardware store, there was never an issue about parking.
Jane Fant asked about the possibility of closing earlier. Bob said he would close earlier if there were no customers. He wants to create a community gathering spot. Frank asked about whether the last dinner could be served at 9 pm. Denby Coyle said she hoped for that plan. Tami said that the Alden Inn used to stop serving at 9 pm except on Fridays and Saturday nights. Walt perceived a conflict between the Zoning Ordinance and what people in town want, noting that the original ordinance did not allow restaurants. He advised that the Planning Board should look at impact on neighbors. Scott said that when it was written, there were many uses around the common, and that some businesses have now been lost, so the character of the area has changed. Will said that his
father’s well had been contaminated by salt, and that he had had to drill a new one. Wayne said he felt that Albert’s property value had been diminished by what Wayne had done at the Mascoma Bank building, and from Dowd’s Inn. He said that Albert had been a great neighbor. He suggested eliminating the back parking spaces closest to Albert’s property. Bob said he would do this if the board allowed it. Tony Ryan said that parking for fire drills should be considered. Scott said that the current plan retains the two buildings now on the site, and that if the Nicholses kept the property, they might remove the garage building, which would give potential for more parking spaces away from the Pushees.
Jane asked if the businesses will be open seven days per week. Bob said he plans on six days/week if he can afford to. Walter asked about the schedule for food delivery and dumpster management. Bob said he is not yet sure of this, but showed location on the plan.
Deliberations: Alan asked what further information is needed. Walter said he wanted documentation about rentals for the last four years in various spaces, and how many rooms are rented by whom, or, if the violation of the six unit limit existed for more than ten years. George asked for evidence that tends to show that the building has been used as a nine unit building in the last four years, and an explanation if there are gaps, such as if there was no market for the space and a renter could not be found. Frank said he believed it could be proved that there was intent to use the building as a nine unit building, although it would be hard to prove it during a time the building wasn’t fully occupied. Walter pointed to criterion D under section 7.26, noting that he feels limiting the building to six units
would not be a penalty, and would meet the terms of the ordinance. For the special exception for shared parking, Walter noted that the site plan review gives guidelines, but not requirements. He wanted feedback from the Planning Board about whether they will require a certain number of spaces. He wanted to know what each unit’s use is to be, and how many parking spaces each requires, and their hours, or ask the Planning Board what they intend to do. Alan suggested a joint meeting with the Planning Board. Vickie said that the Planning Board had said that Bob must use the numbers in the table given for each use, and that the ZBA could allow a special exception for joint use or time sharing of the spaces.
George suggested that the applicant provide numbers for each of three scenarios: 1) typical weekday use of all units; 2) typical Saturday use of all units; and 3) typical Sunday use of all units. He would also ask the applicant to address all items on section 10.40A. Walt recommended talking to the neighbors on the common, which is not necessary, but would make the decision easier. Letters would be acceptable testimony.
End Deliberations: Scott said that creating a four year history would be more difficult than creating a nine year history. The board agreed to a longer history. Scott said he has formal leases for some spaces, but had handshake deals with others. He will try to get statements. George said the board would accept whatever he can come up with in a good faith effort. Scott said he could easily prove there were nine units, but not necessarily that they were all occupied at the same time.
The board voted unanimously to table the hearing until Tuesday, March 27 at 7:30 pm, on a motion by George seconded by Walter.
Meeting adjourned 10:25 pm.
Respectfully submitted,
Adair Mulligan, Recorder
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