Planning Board
December 18, 2012
Approved April 16, 2013
Members Present: Bruce Healey, Chair; Tom Vannatta, Vice-Chair; Bill Weiler, Russell Smith, Members; Deane Geddes, Alternate; Rachel Ruppel, Advisor; Jim Powell, ex-officio member.
Mr. Healey called the meeting to order at 7:03 p.m.
Mr. Healey appointed Mr. Geddes as a voting member for this meeting in place of Mr. Williams.
ADMINISTRATIVE BUSINESS
Minutes
The Board reviewed the minutes of August 7, 2012 and made corrections. Mr. Weiler made a motion to approve the minutes as corrected. Mr. Vannatta seconded the motion. All in favor.
The Board reviewed the minutes of November 20, 2012 and made corrections. Mr. Weiler made a motion to approve the minutes as corrected. Mr. Smith seconded the motion. All in favor.
CASE: Case 2012-015: Conceptual – Site Plan Review – Property owner located in Residential district wants to convert a garage to a commercial repair garage. 271 Route 103A. Map/Lot 018-048-059.
Mr. Healey invited Raymond La Clair to join the Board and describe his plans. Mr. La Clair said he wants to do small repairs on cars at his garage on his property which is in a residential district. He said there will not be any employees except himself and the work will include oil changes, brake work, state inspections, etc.
Mr. Powell asked if he would be doing any major work on cars such as transmission work. Mr. La Clair said no, he would only be offering routine maintenance type of work. Mr. Powel asked about proposed signage. Mr. La Clair said he would like to have a free-standing sign down by the road.
Mr. Healey said this constitutes a cottage industry in a residential district. Mr. Weiler said it might be categorized as a home occupation. Mr. Healey said a home occupation does not allow for any customers or clients and Mr. La Clair’s proposed use is more accurately defined as a cottage industry.
Mr. Weiler read into the record Paragraph 2.34 Cottage Industry as follows: “An accessory use of a dwelling unit or an associated accessory building for an occupation or business activity which results in a product or service. It is an occupation which is carried on by a resident or residents who occupy the dwelling unit and may include no more than two non-occupant employees on the premises…..Equipment and materials shall be either screened or enclosed.”
Mr. Healey said this request first needs a Special Exception approval from the Zoning Board of Adjustment (ZBA) for a cottage industry in a residential district. If Mr. La Clair obtains ZBA approval, then he must submit a Site Plan Review application for Planning Board review.
Mr. Weiler noted that there is a special section for cottage industry in the Board’s site plan review regulations.
Mr. Healey reviewed Mr. La Clair’s building location on 103A noting its location across from Pine Cliff Road and as having a 50-foot setback from the road. Mr. Healey recommended that Mr. La Clair contact the Land Use Coordinator for application guidance and deadline submission information noting that applications must be submitted 21 days prior to the scheduled hearing.
CASE: Case 2012-014: Conceptual – Site Plan Review – Patricia J. Murray/agent: Dale Sandy. Owner wants to lease the space to the Tackle Shack. 894 Route 103. Map/Lot 020-079-136.
Dale Sandy, applicant, and David Campbell, land use attorney, were present to meet with the Board. Mr. Sandy wants to move his business, The Tackle Shack, from its current location in The Newbury Plaza to the retail space previously occupied by Transmedic auto shop at 894 Route 103.
Mr. Healey reviewed the case to date, noting that this is the second conceptual application submitted by The Tackle Shack. He said not all Board members were present for the first conceptual application review at the planning Board meeting on November 20, 2012 and added that a second conceptual presented for consideration does not mean the Board misdirected the applicant at the first conceptual meeting.
Mr. Vannatta noted that the Board had several conceptual applications presented by CAP/HUD regarding the Newbury Elderly Housing project and that multiple conceptual applications are not unusual.
At the first conceptual application review on November 20th, the Board advised Mr. Sandy that the change from Transmedic auto shop to The Tackle Shack is a change of use and requires a site plan review. At that meeting, Mr. Sandy indicated that he wanted to be open for business at his new location by January 1, 2013. The Board advised Mr. Sandy that in order to open by that date, a site plan review application and attachments must be submitted by November 28, 2012 (21 days prior to the December 18, 2012 Planning Board meeting). In recognition that Mr. Sandy was under a difficult time constraint for submission of a final site plan review application, the Board offered the services of Ms. Ruppel as an advisor to assist with the application preparation along with other resources to help Mr. Sandy with additional required
documents connected with the preparation of a final application.
Additionally, Mr. Healey said he and Ms. Ruppel contacted town counsel for advice regarding this application. Ms. Ruppel said town counsel cited two state laws: (1) RSA 674:19, which states that the zoning ordinance applies to any alteration of a business for a different use. Ms. Ruppel said that law addresses the application’s change of use from auto repair shop to retail sales; and (2) RSA 674:43, which grants the Planning Board the power to review site plans and to establish criteria for the threshold for which a change of use is determined and a site plan review is required. Further, town counsel stated that the Planning Board had provided Mr. Sandy with sound advice at the November 20, 2012 meeting regarding his first conceptual application.
Mr. Vannatta asked if town counsel believed the Board’s advice given to Mr. Sandy at the November 20th meeting was sound and sufficient. Ms. Ruppel replied yes, that was town counsel’s opinion.
Mr. Weiler asked if town counsel reviewed Article III Types of Development Requiring Site Plan Review, Paragraph 3.13, which reads as follows: “a change in use or layout of multi-family or non-residential property or building(s) which involves changes in traffic flow; parking; drainage; water, sewer, or other utilities; fuel storage; or toxic material storage…” . Ms. Ruppel said yes, town counsel reviewed paragraph 3.13.
Mr. Weiler asked if town counsel believed the town’s regulations superseded state law regarding “change of use”. Ms. Ruppel said town counsel stated that the state law gives the Planning Board the authority to establish the threshold to determine when site plan review is required, and that threshold is established in the town’s regulations governing the criteria for determining “change of use”.
There was further discussion regarding what constitutes a site plan review for a “change of use” as defined in the town’s site plan review regulations. Mr. Weiler noted that, per Paragraph 3.13, specific conditions apply to determining if a “change of use” is applicable. He added that he did not believe a “change of use” applied to Mr. Sandy’s conceptual application and, therefore, a site plan review was not needed.
Mr. Campbell stated that Mr. Sandy’s family closed on the property in question last week and Mr. Sandy will be the tenant. Mr. Campbell reviewed the proposed retail use of the property by Mr. Sandy and cited Paragraph 3.13 as the modifying phrase governing whether or not a “change of use” is present. Mr. Campbell contended that since there will be no change in traffic flow, parking, drainage, water, sewer, other utilities, fuel storage or toxic material storage, the proposed use of this non-residential property does not constitute a “change of use”. He requested that the Board waive the site plan review requirement.
Mr. Campbell added that The Tackle Shack is an existing business in town within the same zoning district and its business and business patterns are established and known to the town. He said this is a seasonal business and delaying the opening past January 1, 2013 will cause Mr. Sandy financial hardship. Further, the new use on the property is an allowed use and not subject to Paragraph 3.13. Finally, Mr. Campbell stated that by not requiring a site plan review, the board will be promoting an existing business and the public good.
There was further general discussion regarding the definition of “change of use”.
Mr. Healey cited two applications for “change of use” in 2012 which required full site plan review applications: Case 2012-004, Ashworth-Hafer Trust (March 20, 2012 PB meeting); and, Case 2012-008, Palace Pizza (July 17, 2012 PB meeting). Mr. Healey recommended requiring a full site plan review application from Mr. Sandy specifically in light of the Board’s offer of application preparation assistance to Mr. Sandy at the PB November 20, 2012 meeting.
Mr. Sandy said he tried to get the required information together in November but there was not enough time to do so. He added that his business must vacate its current location on December 31, 2012.
Mr. Powell said the Board has the power to decide if Mr. Sandy must have a site plan review or not. Mr. Geddes said the Board does not know specifically what Mr. Sandy intends to do with the new site, the nature of the business, the layout of the store, outside grounds, etc., all of which is covered in a site plan review.
Mr. Sandy said his business is a seasonal business selling fishing, tackle, hunting supplies, and renting kayaks and canoes. He intends to paint the interior and the exterior will be clean and painted. When asked if he was to be a tenant at will, Mr. Sandy said he did not know. He added that there will be an entry door and a bay window. He added that the landscaping and paving will be done by himself and his wife.
Mr. Weiler said the site plan review regulations language is clear in not requiring a site plan review of this application. Mr. Vannatta said the Board should have a written summary of the applicant’s plans for the site to be included in the property file. The summary statement should include the text, a sketch of the layout and pictures. He further suggested crafting a modified site plan that the Board could review informally.
Mr. Healey disagreed, citing the past requirements for a site plan review for the Ashworth-Hafer Trust and Palace Pizza applications. There was further discussion regarding Paragraph 3.13 as it applies to The Tackle Shack conceptual application.
Mr. Powell noted that Mr. Sandy’s proposed use of the property is a positive change to the property and will be an improvement over what is there now. He added that each case presented to the Board must be viewed on its own merits and that past cases may not influence how the Board considers each application.
There was further general discussion about the term “change of use” and Mr. Vannatta’s suggestion of crafting a modified site plan that would enable Mr. Sandy’s compliance.
Ms. Ruppel said the issue on the table is for the Board to decide whether or not this application requires a site plan review. Apart from that decision is Mr. Vannatta’s suggestion of a modified site plan. Ms. Ruppel added that the Board must decide if this application constitutes a “change of use”.
Mr. Weiler noted that the Board might allow Mr. Sandy to move into the new property on January 1, 2013 and have a site plan review at a later date/ Ms. Ruppel advised against having a site plan review after the applicant has taken occupancy.
Mr. Powell made a point of order regarding taking public input. Mr. Healey asked for a consensus of the Board to allow public input. There was Board consensus to allow public input.
Mr. Healey opened the discussion to the public.
Richard Wright, Newbury resident and Selectman, said he had a similar business for 56 years, adding that he did not see a drastic change in the use of the property from auto repairs to retail sales. He added The Tackle Shack is a small family-owned business and its relocation to the former Transmedic building will be an improvement to that property while alleviating the traffic back-up at The Newbury Plaza. He added that the Board has the right to waive the requirement for a site plan review.
Chris Aldrige, Old Post Road, Newbury, said he’s been a resident since 1989 and that he is in favor of The Tackle Shack’s relocation and encouraged the Board to waive the requirement for a site plan review.
There being no further comment from the public, Mr. Healey closed the public input portion of the meeting.
Mr. Healey asked for a consensus of the Board on whether a site plan review is required of the applicant. The Board’s opinions were as follows:
Site Plan Review Not Required: Mr. Geddes, Mr. Smith, Mr. Powell, Mr. Weiler, Mr. Vannatta.
Site Plan Review Required: Mr. Healey.
Mr. Geddes asked if the Board consensus applied to the January 1, 2013 occupancy date. Mr. Healey said yes.
Mr. Vannatta recommended that the applicant comply with Paragraph 10.10 Structure Plan and Paragraph 10.11 Written Summary in the site Plan Review Regulations. Ms. Ruppel stated that this is a recommendation not a requirement. Mr. Campbell said the applicant will comply voluntarily.
ADDITIONAL BUSINESS
Proposed Amendments to Zoning Ordinance
The Board reviewed and discussed the two proposed amendments to the zoning ordinance: Paragraph 2.146 Steep Slope definition; and, Paragraph 21.2 Applicability (Stormwater Management).
Mr. Healey called for a motion to vote on the two proposed amendments.
Mr. Weiler made a motion that Amendment #1, Steep Slope, be approved and sent to public hearing. Mr. Vannatta seconded the motion.
Mr. Healey called for a Roll Call vote.
In Favor: Mr. Geddes, Mr. Smith, Mr. Powell, Mr. Weiler, Mr. Vannatta, Mr. Healey
Opposed: None
Mr. Weiler made a motion that Amendment #2, Applicability (Stormwater Management), be approved and sent to public hearing. Mr. Vannatta seconded the motion.
Mr. Healey called for a Roll Call vote.
In Favor: Mr. Geddes, Mr. Smith, Mr. Powell, Mr. Weiler, Mr. Vannatta, Mr. Healey
Opposed: None
UVLSRPC Circuit Rider Planner Service Agreement
The Board reviewed the UVLSRPC Circuit Rider Planner Service Agreement and reached consensus to renew the Agreement for a 12-month period.
ZBA Notice of Decision (CAP/HUD)
Mr. Healey read the Board’s copy of a ZBA Notice of Decision which stated that at the ZBA’s December 10, 2012 meeting the ZBA voted to grant CAP/HUD a one-time six-month extension from January 10, 2013 to June 10, 2013 for variances from Paragraphs 5.8 and 5.12 of the Newbury Zoning Ordinance in CAP/HUD’s proposal to construct 34 units of low income elderly housing.
Mr. Smith made a motion to adjourn. Mr. Geddes seconded the motion. All in favor.
Meeting adjourned at 9:05 p.m.
Respectfully submitted,
Meg Whittemore
Recording Secretary
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