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Lyme Zoning Board of AdjustmentMinutes: March 27, 2007
Board members: Present - Alan Greatorex, Chair; George Hartmann, Walter Swift, Jim PoageAbsent - Ross McIntyreAlternate members: Present - Frank Bowles, Margot MaddockAbsent - Jane FantStaff: Vickie Davis, Zoning Administrator; Adair Mulligan, recorderPublic: Bob Coyle, Denby Coyle, William Pushee, Daniel Smith, Cynthia Bognolo, Don Elder, Julia Elder, Wayne Pike, Tami Dowd, Scott Nichols, Lloyd Nichols, Tony Ryan, Sue Ryan, Mike Hinsley
Robert Coyle, Applicant, Permit Application 2007 - 006, Map 201, Lot 73Project: convert first floor of Nichols Hardware store to restaurant and market at 5 Main Street. Alan Greatorex reappointeted Margot Maddock and Frank Bowles to serve on the Board.
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. Bob Coyle reviewed his proposal for the building, and presented information he had collected at the request of the board. A 1997 lease between the Nicholses and Lani Carney defines upstairs office spaces as # 1-4. A spreadsheet showed income by customer detail in 2000, shows deposits for 7 units, with two tenants on the second floor, and two unrented units. Lloyd Nichols
explained that at the time, Tarm USA was using one of the units, which didn’t show on the spreadsheet because Nichols was the owner. Jim Nichols was occupying the third floor apartment. He also pointed out that James Harlan Hurt was a tenant in one of the second floor offices, not as a resident of the third floor apartment. Therefore, there were 9 units in 2000. Bob also presented a history of the planning and permitting for the building from ZBA files, and a chart showing parking needs sorted by unit and time of day. He used current parking requirements to calculate needs, although he observed that if the hardware store had been held to the same criteria, its maximum number of required parking spaces (67.5) would be more than for the proposed use. He asked if the parking could be grandfathered since the building will not be increased in size. His chart retains one space each for the bank and post office after business hours for those using the ATM or
mailbox. Several errors in the table were found and fixed. He clarified that the restaurant and food market are the same business, with a shared kitchen and other facilities, with separate liquor licenses. Bob reported that he had visited all residents/owners on the Common and gathered 21 signatures of support for his proposal. He said that no one turned him down except for Wayne Pike and Tami Dowd, who declined to sign until they had more information. He also drafted up a public opinion poll, and collected 113 signatures. Only one person declined to sign, and several others said they could not because they had a conflict of interest. Bob presented correspondence between the town and Guy Nichols regarding traffic flow signage, and a 1973 letter from Albert Pushee allowing Guy Nichols to pipe stormwater underground across his property. Finally, he presented a letter from Fire Chief Michael Hinsley indicating that the proposal would not conflict with fire protection.
Walter Swift noted that both the zoning and planning boards had struggled for years with the intensity of use in the Lyme Common area, and said he thought that the proposed use is more than a modest increase in the use of the building and surrounding area. He asked Bob to define the number of units requested. Bob listed them as follows:
· apartment, third floor
· 2 office units, second floor
· restaurant/food market, first floor
· bank, first floor
· post office, first floor
· rental area #1, first floor (present loading dock)
· rental area #2, first floor (present stove showroom/paint area)
These total 8; Bob said that he hopes for a ninth unit if the 8000 sf dry basement can be provided with adequate egress or if abutting space becomes available, and he can provide adequate septic and parking facilities. He has no plans for the storage building, but it would be part of the purchase of the property. It could possibly serve as a commissary for the restaurant, or beer could be brewed there, as is done at the Norwich Inn. There is no plumbing in there now. Denby Coyle added that it would be ideal to rent the entire second floor to one tenant. Vickie Davis noted that the planning board would approve the type of tenants, not the ZBA. Tami asked whether there would be two food licenses. Bob said there would be one, and two liquor licenses, and that the two functions would have the same hours.
Daniel Smith introduced himself as attorney for Will and Albert Pushee, who owns the house behind the Nichols building. He noted that Will would have declined to sign the petition.
He requested that the ZBA deny the application on the basis that the proposal is not an appropriate use of the property, would result in increased intensity of use due to noise, light, traffic, etc., and would impact the Albert Pushee house, decreasing its value. He asked whether a restaurant is permitted in the Lyme Common district, referring to Table 4.1 and section 4.46. He said he does not believe an Equitable Waiver (section 10.61) applies to this situation, and that it is more oriented toward structural building constraints. Frank Bowles said that in order to make the building work in an economically viable way, a hardship might be proved. Atty. Smith said that the Coyles do not qualify to apply for a use variance because they don’t own the building. He said that the zoning ordinance shows that the town determined that a restaurant was not a favored use for this area of town. He said that there is a parking use overlap between 10 or 11 am until 5 pm that exceeds the
capability of the lot. He noted that parking for employees needs to be added to the parking calculations. He is not convinced that the hardware store use would really require more parking, and that each use should be reviewed on its own merits. Alan Greatorex noted that the need is based on a square footage requirement. Atty. Smith inquired whether access for the Nichols traffic was granted through state land. He said that bank employees use the park and ride lot for parking because there is inadequate parking at the Nichols property. Cynthia Bognolo asked about the town’s interest in the building. She asked if traffic would be affected if alcohol is served on the property, and whether the bank and post office would continue to rent the space if alcohol is served. She noted that dumpsters and food vents from commercial kitchens can be a source of odor. She referred to problems late at night near her property on the other end of the Common when Alden Inn employees
got off work, and suggested that such situations would need careful monitoring. Bob said that he is a Market Street neighbor himself, and that he would serve only beer and wine, and not be open past 10 pm. He said that he would work hard to protect the reputation of his business. George Hartmann said he was concerned about abutter opinions, and asked Wayne and Tami if they felt the project would decrease their property values. Wayne said he thought it would change the atmosphere of the area, being open longer at night. Bob said that other abutting residents and businesses are in favor of the proposal, and that he must ensure that there is no disturbance that might affect his ability to rent the third floor apartment. He thought there would be less noise than during a wedding at Dowd’s Inn. Will Pushee said that his father’s house was built in 1949. Scott Nichols said that the building has housed a business since the 1800s, and the Pushees knew that when they
built. Walt asked what is required to change the ordinance. Vickie said that it would take a year until next Town Meeting to vote on changes, or a special town meeting could be called, which is expensive. Atty. Smith noted that at least one public hearing must be held in advance. Jim Poage said it has been done in the past, and took less than 6 months. Deliberations: Margot Maddock recommended considering the parking issue separately from the Equitable Waiver. Alan went through section 10.61. No enforcement action has been taken. To answer the question of whether the violation has existed for 10 years or more, he checked the minutes of the October 20, 1983 planning board meeting, when the building housed 4 offices, a bank, the post office, the hardware store, and the lunch counter, for a sum of 8 units. A condition of this 1983 decision was that parking was
to have a low impact. On May 21, 1998, the ZBA was told by Jim Nichols that there were 6 units, although in fact 8 were grandfathered. The board has also received testimony that in 2000, there were 9 identifiable units. Alan noted that there were 8 in 1983, and the addition of the apartment in 1998 made it 9. Alan noted that the violation was not discovered by a municipal officer (although no sale was involved) and that Scott Nichols had testified about his father’s good faith error of reporting 6 rather than 8 units in 1998. Frank noted that in this case, the board is concerned with division of the structure, rather than its dimensions. Walter pointed out that in 10.61D, if the violation were to be corrected, it would be to limit the building to 6 units. George said he was concerned with 10.61C, regarding decrease in property values. Frank said that the building has existed in this state for years, and suggested it has not affected property values. Walt said that an
Equitable Waiver could be granted on the basis of 8 units. Alan said that the basement cannot count as a separate unit without 2 adequate exits. Walter moved to grant an Equitable Waiver, recognizing that there are 8 units in the Nichols building, based on the following findings of fact: this is a non-conforming building on a non-conforming lot that predates zoning; in October, 1983, the planning board granted a permit for expansion of the building from 5 units (bank, post office, second floor apartment, retail store, and lunch counter) to include 4 offices on the second floor, so 8 units were grandfathered as existing before zoning; under 10.61 second A, the violation has existed for ten years or more, and second B, there has been no enforcement action by a municipal officer or any person directly affected. Frank seconded the motion. George asked whether the project will be viable with 8 units and not 9. Walter said that this is a separate step.
Margot read the objectives for the Lyme Common district, which includes encouraging mixed neighborhood business uses, and said she believes that the project is in alignment with these objectives. The board voted unanimously to grant an Equitable Waiver. George added that he would have had trouble granting a Variance for 9 units, noting that the Nichols family could ask for this, but that the Coyles could not, until they purchase the property. Out of Deliberations: Walter asked if the planning board can change the number of units allowed in the building during site plan review. Vickie said that the board would accept the ZBA’s determination of 8 units. Alan asked the applicant’s reaction to the decision. Bob said he accepted it, and thanked the board for their attention. Walter asked how it would change parking needs. Bob said there would likely be no change because there are 8 units shown on the plan. Walter asked how many employees there would be for each first
floor business. Bob said he thought there would be one each for the market and restaurant. Walter said if they change the combined use to retail, it would decrease parking space needs by 2. Frank pointed out that the parking guidelines are guidelines, not rules. Walt Swift replied that he had asked the Zoning Administrator for clarification from the Planning Board whether the Planning Board would use those criteria as guidelines, as the Table in the Site Plan Review Regulations is labeled, or as strict rules. The reply from the Planning Board is that the values in that table would be used strictly as absolute criteria. Thus a Special Exception would be needed. Asked about his timetable, Bob said that he needs to complete his permitting within 60 days or he will lose a non-refundable deposit. Atty. Smith asked how the board would deal with section 4.46 if there are more than 6 units. Alan noted that the restaurant would be an expansion of the
pre-existing lunch counter. Atty. Smith said that the board has not properly noticed the hearing on intensifying a non-conforming use. Alan said that the use is a planning board issue. Bob said he was applying for a Variance under a planned development which allows conditional use approval. Walter asked Vickie to read the public notice. It includes a note that the board will consider any other sections of the zoning ordinance found applicable during the hearing. Deliberations: The board turned to discussing the requirements for a Special Exception under section 7.26. George said that the planning board says the applicant needs 65.75 parking spaces, and that the question hinges on variation in time of use of those spaces. Alan said that testimony has been received that there will be a drop in need for 10 spaces in the evening. The applicant is proposing 65, but the hardware store would have required 67. Walter proposed ignoring the grandfathered parking, and looking only at
the current proposal. Out of Deliberations: Bob said that his plans indicate 41 parking spaces. Frank asked what the peak evening hour of restaurant traffic is, in Bob’s experience. Bob said that he doesn’t have this experience, because his previous businesses were not open during these hours, but he estimates maximum impact between 5-8 pm. Frank asked about typical occupancy. Bob said that it varies by day of week, and he expects it would be higher on Fridays and Saturdays. Because none of the other businesses would be open past noon on Saturday or on Sunday, more spaces would be open. Deliberations: Walter said that if the restaurant is ignored, the requirements for the rest of the proposal would total 46.5 parking spaces. Some joint use of the 41 proposed spaces would be needed even without the restaurant. Alan noted that employees currently do park in the state park and ride lot. Frank observed that any project proposed for the
Nichols building will result in the same problem with parking space, and that the situation has existed for more than 10 years. He said that this is the way life is in downtown Lyme. George asked if the board should tell the planning board that their criteria are unrealistic. Walter went through the list of uses to evaluate the parking needs for each. He thought that 6 spaces each for the bank and post office are necessary for employees and customers; but that the retail area never needed 25 spaces for daily use, although this could change with the new use. He thought that the 7 spaces proposed for 2 second floor offices seemed reasonable, as is 1.5 spaces for the apartment; so that 20.5 spaces seems appropriate for those uses. However, the restaurant and retail area are supposed to have 40 spaces, but there are only 20 left as shown in the plan. Alan suggested that there could be a problem between 4-5 pm when there might be more retail customers, although they would
turn over quickly. Walter noted that this is when home-bound traffic from Hanover is coming through Lyme on Route 10. Frank said that in his experience living in the apartment, the park and ride lot empties out at 5 pm. Walter called attention to section 8.11, which indicates that a use can be expanded by only 50%. Under this section, the existing 10 lunch counter seats could be expanded only to 15. He recalled the strong public support for the restaurant proposal, yet the zoning ordinance does not seem to allow this use. He said he believes the only way to allow the restaurant is to change the ordinance, and recommended talking to the planning board quickly to see if this could happen. Alan agreed that it would be difficult to permit it under section 10.40. Frank said that the intensity of change is above what the ordinance allows. He noted that the Alden Inn restaurant is now closed, so there is not economic opportunity open in the Common area. Walter made the
observation that he thought that the Alden Inn’s restaurant was grandfathered, but would not be allowed in the building now. The restaurant at the Dowd’s Inn is only open to its guests, not to the public. He repeated his advice to change the zoning ordinance to allow a restaurant in the Common district. Out of Deliberations: Vickie suggested that the board consult town counsel to see if section 8.11 is applicable and if so, must the project fit every other ordinance requirement as well.Deliberations: George moved to ask the planning administrator to contact town counsel with a request about the relevance of the first paragraph of section 10.40, and whether the project must conform to sections 8.11 and 4.46, for example. Margot seconded the motion, and it passed unanimously. Out of Deliberations: Alan advised the Coyles about the possibility of appeal of the Equitable Waiver decision. He announced that the hearing would be continued to
Monday, April 2 at 7:30 pm, and would be held if possible at the fire station. Notice will be posted if the location is changed. Meeting adjourned 10:44 pm.Respectfully submitted,Adair Mulligan, Recorder
Lyme Zoning Board of AdjustmentMarch 27, 2007 meetingLyme Zoning Board of AdjustmentMarch 27, 2007 meeting
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