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Lyme Zoning Board of Adjustment
Minutes: June 25, 2007
Board members: Present - Ross McIntyre, Vice Chair; Jim Poage, Walter Swift
Absent - Alan Greatorex, George Hartmann
Alternate members: Present - Margot Maddock, Jane Fant
Absent - Frank Bowles
Staff: Adair Mulligan, recorder
Public: Will Pushee, Atty. Dan Smith, David Corriveau, Bob Coyle, Atty. Darryl Hotchkiss, Rod Finley, Tina Clark, Ray Clark, Faith Catlin, John Griesemer, Tony Ryan, Sue Ryan, Wayne Pike, Greg Hanlon, Tom Turkington, Judy Thrasher, Garry Thrasher, Beverly Wakely, Ed Gray, James Graham, Nancy Elizabeth Grandine, Letitia Smith, Norm Wakely, Brian Cook, Simon Carr, Dan O’Hara, Shannon Munger, David Lynch, Michael Sandoe, Peter McGowan, Jack Taylor, Christine Taylor, Jessica Lahey, Jeanne Prince, Veronica Daley, Brian Roth, Peter Mulvihill, Theresa Mandy, Nadia Gorman, Michael Mandy, Robert Meyer, Luke Prince
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.
As the meeting started Ross McIntyre asked Margot Maddock to address those attending. She said that, assuming the ZBA’s role was over in the case, she had spoken with the applicant asking for a summary of a planning board meeting, but offering no opinion on it. When she learned the applicant would be returning
before the ZBA, she consulted Zoning Administrator Vickie Davis as to whether she should recuse herself; Vickie consulted town counsel; both advised her to ask those in attendance if they objected to her serving. There was no objection. Ross appointed Margot Maddock and Jane Fant to sit as regular members, noting that other regular members were absent or had conflicts. He noted that the meeting is of the zoning board, not the planning board as advertised on a private ListServ posting. Ross explained the roles of the planning and zoning boards, noting that there is a provision for them to meet jointly, but that he did not know why the current meeting was not a joint one.
Ross then introduced the issue at hand. Robert Coyle proposes to convert the Nichols Hardware store and lunch counter at 5 Main Street in the Lyme Common District to a restaurant. He is applying for a Variance from section 4.46 to do a conversion retaining a total of eight units in the building. He also is applying for a Variance to place his septic system within the setbacks from the Lyme Common community water system under section 5.13.E.2. Ross indicated that the board would first take up the issue of the conversion, and because Vickie Davis, the Zoning Administrator, was unable to attend the meeting read from the agenda that she had prepared for the Board: When Bob first applied to do a conversion, she recommended that he apply for a Variance from section 4.49 for a
Planned Development for the nine units he wanted. He insisted on applying for an Equitable Waiver as he felt it was easier to obtain. he was right. She had issued her advice after talking with Town Counsel who did not believe an Equitable Waiver was appropriate. However, the ZBA did this in such a way that it made sense and Town Counsel felt it could be used to allow the Planning Board to approve a conversion for eight units instead of six. However, during the hearing, this avenue was questioned by opposing parties and Town Counsel was asked to review the appropriateness of the Planning Board approving a conversion with eight units. Town Counsel reversed her decision as she could not find anything in the zoning ordinance to back her previous decision that eight units could be approved in a conversion when section 4.46 states only six units are allowed in a conversion.
The Equitable Waiver the ZBA granted only confirmed that eight units exist. It did not provide the Variance needed to allow eight units in the conversion. Originally, Vickie had thought there should be a Variance from section 4.49 for a Planned Development as the definition states, “A mix of residential and institutional or business uses on a single lot in more than one building on a single lot.” There are two buildings on this lot – the second being the garage (Coyle had talked about making the garage into a micro-brewery, though that seems to have gone to the wayside now.) In any event, it’s two buildings. But, in talking with Town Counsel, she thought because it’s called a restaurant conversion in table 4.1, it should be a Variance from
section 4.46.
Jim Poage explained that the board would be considering a use variance for the conversion and an area variance for the septic system. Ross reviewed the concept of variance, describing it as an override of the zoning ordinance by the board. He noted that the board is reluctant to issue such overrides because of the precedent it could set and because doing so can undermine the value of the zoning ordinance. He also reviewed the Supreme Court ruling on determining hardship.
Bob Coyle thanked the board for accommodating him with a special meeting. His attorney, Darryl Hotchkiss, presented comments on the points required for issuing a Variance.
A) That the proposed use will not diminish surrounding property values - He passed out a copy of the May 24, 2007 minutes of the Planning Board, in which abutter/real estate agent Martha Diebold stated that she thought the project would increase the value of the surrounding property and favored the proposal. He noted that 21 neighborhood residents signed a petition in favor of the proposal.
B) That granting the variance will not be contrary to the public interest - He said there was no logical reason to limit the structure to six units, and that the existing building has had eight units in it since before 1983. He said it was one of only a few buildings in town that could be negatively affected by such an arbitrary limit of six units.
C) That the use will not be contrary to the spirit and intent of the ordinance - He cited a recent case that focused on whether the variance would alter the essential character of the locality, and noted that the store utilizes an existing building and its character would be unaffected by continuing the use by eight units. He said that the 4000 sf of retail space available in the rear of the building is more attractive to small retailers.
D) That the project will not threaten public health and welfare - Hotchkiss said he did not see how this could happen, since the building would have the same parking and traffic effects, although septage regulation might be different.
E) That by granting the variance substantial justice will be done - Hotchkiss said that to find this, any loss to an individual must not be outweighed by an appreciable gain to the public, and he did not see how limiting the building to six units would benefit the public.
F) That denial of the variance would result in unnecessary hardship to the owner - He acknowledged that this hurdle is higher for a use variance than for an area variance, and noted that use decisions are made by the planning board. He said that Nichols is a unique property, and that it is reasonable for the use to continue for the already established number of units. He said there is no substantial relationship between the six unit language and the existing eight units, and that no public interest would be served by maintaining six units.
Jim Poage asked about the possible impact of the project on the water system of the village. Atty. Hotchkiss said that because the total space available is fixed whether six or eight units are contained in it, the number of people within the space would likely be determined by the building size rather than the number of units. For this reason the impact of 8 vs. 6 units would be similar. Bob Coyle said that he went to meet with the water association over the winter, and those he spoke with felt there would be no adverse effect on the water system. He stated that the primary well is the Dowd well, which has enough capacity for the entire village. The Chaffee well is the secondary well, which does not. Rod Finley added that the existing septic system is near the
barn, and has a nitrate setback, so the rear of the property is not a suitable site. The front of the property is not available because the State is investigating the need to remedy a fuel tank leak.. That leaves the side setback, and he has talked with Martha Diebold about a nitrate setback easement. He explained that the hydraulic gradient of the septic system is toward the north, moving away from the Chaffee well. The septic system is sized to serve the restaurant. The existing system would be kept as well.
Walter asked Bob to list the uses for the units. Bob said there would be an apartment on the third floor, two office units on the second floor, and the bank, post office, restaurant, and two additional retail or office units on the first floor. He added that the first floor space of over 6000 sf is too much for most retailers. The basement would be for auxiliary use only. The take-out food service would be part of the restaurant.
Attorney Hotchkiss remarked that he found inconsistencies and other problems with the Lyme Zoning Ordinance and felt that the regulations should be changed. Ross explained the process by which the regulations are revised or new regulations issued. Each year the Planning Board considers possible revisions. These are subjected to public comment and further Planning Board review. Those that make it through this process appear in the Town Warrant and appear on a ballot at the time Town Meeting. Ross said that the regulations that are adopted by vote of Lyme citizens may not be perfect but they represent a serious attempt by all those who participate in this process to make the Lyme regulations fair and Lyme the kind of place in
which people will wish to live.
Attorney Dan Smith said he represents Will Pushee and his father, Albert, who own a home 30 feet from the Nichols property line, and object to the request for the variances. He quoted the Supplement for Planning and Zoning, noting that to find hardship, the board must find that the literal application of the zoning ordinance bars reasonable use of the property in its setting. He asked that the board consider hardship and injury to others. He said that there were no data presented to show that putting a septic system within 400 feet of a well could not injure others. He noted that the kinds of uses section 3.21 describes for the district are mixed uses. The Pushees located there over 50 years ago, in a home that has a distinctly rural flavor. If a restaurant is allowed,
Atty. Smith said there will be new activity after 5:30 pm and on weekends, with headlights, music, and other disturbance within 30 feet of the side of the Pushee home. This would have a negative impact on it. He suggested that Martha Diebold’s assessment of effect on property value was based not on a study but on her 9-5 use of her own property. He said that there may be public detriment, and there would definitely be private detriment to property value. Will Pushee said he had been in town 57 years and objects to the idea of late hours at the site, especially the added use late at night. He said that the restaurant would put a strain on the septic system, and that while he wants some other business to occupy the building, the lot is too small for a restaurant.
Faith Catlin said that the reason for variances is to deal with a situation which is so important to the community. She thought it was time to accept the plan for the building. Tom Turkington said that people are anxious about the downtown dying. Ray Clark asked if the issue of the privacy of the Pushee home should be addressed by the planning board in site plan review. Bob Coyle said he is at that stage with the planning board now. Mike Mundy, who lives in the village, said that lights and noise are part of living in the village, and that the benefits outweigh the negatives. He said that more activity is needed at the site. Greg Hanlon, who lives next to Breakfast on the Connecticut, said that despite fears that the bed and breakfast would create traffic problems on
River Road, he has had no problems. James Graham asked what is in the ordinance regarding noise. Ross said that noise levels that lead to restrictions are not specified in the regulations and that some types of noise are more disturbing than others. It is left to the Board to decide what constitutes unacceptable noise. James noted that the Nichols business once had a small engine repair shop on the back that must have been noisy. Bob Cole said that the board’s concern about impact on neighbors had led to the requirement to meet with all the neighbors.
Margot Maddock asked for more information on the number of units on each floor. Bob said he intends to use the first floor space as efficiently as possible with the restaurant in front and two retail units or offices at the rear. Atty. Smith said that no one would be as closely impacted as the Pushee family, except possibly for Ed Gray. Atty. Hotchkiss said that Martha Diebold has an apartment in her building whose occupant could be affected. Ed Gray identified himself as an apartment abutter who is outdoors each evening with his dog. He said he considers any noise as secondary to the benefit of the proposal. He said there is much noise from Dowd’s Inn at night, and that he is completely in favor of the proposal.
Ross directed discussion to the variance for a septic system encroachment into the wellhead protection area. Atty. Hotchkiss referred to the Boccia case, and asked whether a variance is necessary, since the proposal meets all the side and front setback requirements. He said he suspects the Lyme village water system is a community water system, and that the applicant is asking for a variance for 40 feet of encroachment into the 400 foot radius from the Chaffee well. Rod Finley directed attention to Appendix E of the zoning ordinance, which identifies four wells each with a 400 foot radius. A community water system, as defined by the state, serves 25-1000 people, and the radius varies according to well production. The 144,000 gallons/day produced by the well could serve
320 houses. With four units, there is enough service for a small city. The water association came up with multiple wells each serving under 25 people in order to get under the limit for being regulated by the state, which advises a 125 foot protective radius for such wells.
Bob Coyle described the time line for development of the water protection aspects of the ordinance. The first zoning ordinance was developed in 1988, and in 1991, the village abandoned the town water association, and established the private one. In 2004, a “cleanup” amendment was made to the ordinance to add a map. At this time, the Lyme Water Association was never asked about a 400 foot radius, and members did not know it existed until now. Rod said that nitrate setbacks on this property are larger to the north, and not off the property on the south side. The setbacks are established by flow. Ross asked if they are determined by test on the actual site. Rod said that they are determined by a table which is not based on this specific site.
Walter asked why the leach field is located where it is proposed and a new big one is not proposed for north of the building. Rod said it could not be put behind the store and still meet the nitrate setback because of the hydraulic gradient in this relatively flat area. Will Pushee said that his father’s basement well was lost to salt contamination and he had to drill a new artesian well. He thought this was about 170 feet deep, but he was not sure. He suggested testing it now. Atty. Smith said that the Pushees object to this variance and that it is a health and safety issue. He said that the state has a file on the village water system, and that if there is a collection of community wells, it is likely that protection areas would be increased because the wells might interact.
Tish Smith introduced herself as the former president of the water association. She said it was never a community system, but a private one. Water is tested regularly. She said that additional wells were drilled at great expense in order to get out from under DES purview. Brian Cook said that the association met in April and supported Coyle’s proposal but did not know about the 400 foot protective radius. Tom Turkington said that there is a maximum of 10 units on each well. Ross said that the board needs to know only how many people drink from the wells, and was not interested in the evolution of the water association. Bob noted that Martha Diebold has had her own well on her property since 1991 but does not have an easement with Nichols. The proposed system would
be 60 feet from Martha’s well, and is hydraulically downslope from it. The system would be 360 feet from the Chaffee well. Ross asked if, with all the other expenses involved in the project, Bob had looked into moving the Chaffee well. Tish said this would be foolhardy, and there is no place to move it. Luke Prince asked why it would be necessary to move it since the state says that 125 feet is safe.
Deliberations: Ross said that he suspected those who drew up the zoning ordinance did so using the 400 foot radius required in the State regulations for a municipal system. Lyme has other dimensional requirements in its regulations that are more stringent than State standards and this may be the case here. It is also possible that those writing the regulations anticipated the possible ultimate conversion of the system to a municipal utility. In any event, the regulation defines a specific well of record and it is immaterial who or what now owns it. Because the wells in question serve more than one dwelling the risk to the public should contamination occur is greater than if it served only one household. He recalled that the Lyme School developed a high nitrate in its well and that
nitrates can cause cancer. Remedial action was required. He thought the likely source was the burial of about a hundred cattle about 400 feet away when Walter Record’s barn burned. He said that the Lyme Common area has very porous soils, that may perc too fast. He said that Wayne Pike had to bring in less porous soil in order to slow the percolation rate in a leach field he made in this area. Jim said he was disturbed by the lack of data on what the additional loading might do. Ross agreed and said that the purpose of regulations is to prevent the contamination of wells since the well owners may have no recourse if contamination occurs. Jane Fant said that the table of setbacks must provide evidence. Ross said that the board would consider a variance on he basis of the criteria listed in the regulations , not because a change in the name of the well description. Margot added that the board could say that 400 feet was not the right distance and that the
septic system would not create a threat. Walter reviewed the discussion over the Dowd’s Inn system in 1990, when the board said that there was no easy way to study the water in the area but was concerned about the absence of data and the possibility of being wrong.
Ross led the board in a discussion of criteria for issuing an area variance for the septic system.
A) That the proposed use will not diminish surrounding property values - agreed there is a problem that the project would diminish these values, but only IF the well becomes contaminated. Ross and Walter did not see evidence that it would NOT diminish property values. Jim, Jane, and Margot did not think property values would be diminished.
B) That granting the variance will not be contrary to the public interest - noted that the public has spoken, and most are on the side of the applicant, although one is not. Agreed that it is in the public interest UNLESS the well becomes contaminated. Ross, Jim, and Walt thought it was not in the public interest. Jane and Margot thought it was not contrary to the public interest.
C) That the use will not be contrary to the spirit and intent of the ordinance - using the measure of 400 feet in the ordinance, all members though that the proposal is contrary to the ordinance.
D) That by granting the variance substantial justice will be done - Margot said that the applicant has a reasonable request to use the property, and justice would be done. Jane and Jim agreed with her. Walt was unsure, and Ross thought that justice was not done.
E) That denial of the variance would result in unnecessary hardship to the owner - agreed that in this case, the proposed owner (Bob Coyle) is the subject. The hardship definition refers to special conditions on the property not generally shared by other properties in the area. Jane noted that this property has more units than any other.
Out of deliberations: Walter asked about the design of the septic system. Rod said that it is to be a multilayered environmental septic with a Presby Maze, which provides mechanical pre-treatment. In discussion and further questioning that followed the applicant mentioned that there were perhaps other sites on the premises where some leach field capacity could be placed. Walter asked whether the system could be designed for half the capacity and therefore moved out of the protective well radius, or whether a second high performance leach field could be built. Rod said this probably could be done, but he would have to look at it. Will asked if the leach field is a threat to his well. His attorney advised him that the state setback for a private well is 75 feet.
Deliberations: Ross said that the applicant should be advised to look at alternative septic designs to avoid needing a variance. Walter noted that the previous discussion indicated that the variance would fail unless the system is redesigned, and advised addressing the use variance. The board then reviewed the criteria for this variance for a conversion from six to eight units.
A) That the proposed use will not diminish surrounding property values - board agreed it would not affect surrounding property values.
B) That granting the variance will not be contrary to the public interest - board noted that there have been eight units all along, and that while an abutter objects, there is strong public interest in the project.
C) That the use will not be contrary to the spirit and intent of the ordinance - board had mixed reactions, noting the ordinance intends that the village have mixed uses.
D) That by granting the variance substantial justice will be done - board was unsure.
E) That denial of the variance would result in unnecessary hardship to the owner - board thought that this would be the
case. Jane noted that the applicant had done a study of the commercial market, and feels he has an ability to rent the units in order to make his mortgage payments with eight units.
Margot moved to grant a Variance from section 4.46 to do a conversion and retain the total of eight units. Findings of fact include: the project will not diminish surrounding property values, because eight units have already been recognized as a prior use, and an Equitable Waiver has been granted for them. Martha Diebold has stated that the project will not diminish area property values. Granting the variance will not be contrary to the public interest. Many of the Common neighbors have spoken in favor of the project and signed a petition, although one abutter objects. There was also a larger petition circulated in town that favored the project. The use will not be contrary to the spirit and intent of the ordinance. The intent of the ordinance is to have a village
center with mixed commercial and residential use, which this project would fulfill. Testimony from the applicant suggests that eight units will give more flexibility to provide retail services and office space. If denied, the potential owner will not be able to fulfill his business plan. The minority opinion of the abutter is recognized. Denying the variance would result in unnecessary hardship to the potential owner, who needs the potential for eight units (an apartment on the third floor, two office units on the second floor, and the bank, post office, restaurant, and two additional retail or office units on the first floor.) Jim seconded the motion, and it was passed by an affirmative vote of four members, with Walter opposing the motion.
Walter listed his reasons for voting against the Variance. He concurred that the project will not diminish surrounding property values, but could not agree that granting the variance will not be contrary to the public interest or that the use will not be contrary to the spirit and intent of the ordinance. He noted that when Jim Nichols applied for his apartment permit, he thought there were only six active units in the building, and that the business was viable at that time under these circumstances. Walter could also not agree that by granting the variance substantial justice will be done, and thought that with regard to hardship, no information had been presented that would allow him to accept this as fact.
Out of deliberations: Ross asked if Rod could produce an alternative septic design in two days. Bob said they could look at options, but that it would probably mean reducing the restaurant seating. Jim moved to continue the hearing until Wednesday, June 27 at 7:30 pm at the school cafeteria in order to give the applicant an opportunity to present an alternative septic design. Walter seconded the motion, and it passed unanimously.
Meeting adjourned 10:35 PM.
Respectfully submitted,
Adair Mulligan, Recorder
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