ZONING BOARD OF ADJUSTMENT
September 27, 2007
The meeting was called to order at 7:00 p.m.
Roll Call: Larry Ordway, Chairman; Julie Matthews, Vice Chairman; Peter Bealo; Robert Loeffler and Clifford Clark. Also present were alternates Roderic Cole and Dan Lloyd.
Minutes of August 30, 2007
L. Ordway moved, second by P. Bealo, to approve the minutes of the August 30, 2007, meeting. The vote was 4-0-1 (Matthews abstaining).
#07-18: A request from Bailey Sign, Inc. for a variance from Article IX, § 220-59A to permit a 119.21 attached primary building sign where 30 square feet is the maximum allowable. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The owner of record is Plaistow Project, LLC.
#07-19: A request from Bailey Sign, Inc. for a variance from Article IX, § 220-59A to permit 49.6 attached secondary building sign where 15 square feet is the maximum allowable. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The owner of record is Plaistow Project, LLC.
Bruce Bailey and Deanna Emery, Bailey Sign, Inc. were present for the application.
It was noted for the record that written authorization for the application had been received from the property owner.
Staff explained that the Shaw’s and the Osco stores would each receive their own distinct certificate of occupancy (CO), as separate entities sharing the same floor space, and as such would each be entitled to the same signage (one-30 sq. ft and one-fifteen sq. ft. attached sign).
Shaw’s sign discussion:
B. Bailey offered the following evidence with reference to the variance request:
- There would be no diminishment to the surrounding property values as the design would be aesthetically pleasing and proportional to the building façade. The neighborhood would find the sign tasteful. The brand recognition of the Shaw’s anchor store would bring more consumers to the site, increasing the value.
- The public interest is served in the store being able to be seen from the street, thereby aiding consumers in finding the store. The sign will not block views.
The applicant chose to submit evidence of hardship for a “use” variance:
- A 30 sq. ft. sign is inadequate brand recognition for a large anchor store, particularly one that is set to the back of a plaza
B. Bailey offered and example for comparison. He noted that length of the store front façade to be 250 feet. Cutting that into five units with 50 feet of store front (the typical store front is 35-40 feet in length) and each store front having just one 30 square foot sign (maximum allowed under the ordinance) there would be 150 sq. ft. of signage, larger than their request for 119.21 sq. ft.
Mr. Bailey continued with evidence for the variance criteria:
- The intention of the ordinance is preservation of the character of the neighborhood. This sign would be tasteful, while advertising a business in a competitive industry. The current ordinance without a variance is difficult for an anchor store to comply with and be competitive.
- There is no injury to the private rights of others as no views are blocked and the sign will easily identify the business for consumers
- There would be substantial justice in granting the sign as one size does not fit all and the ordinance is unfair to larger anchor stores
- The application is not contrary to the spirit and intent of the ordinance as it is not excessive or offensive and still preserves the character of the neighborhood.
There was discussion on the building façade and a variance request versus a 10% special exception (an applicant is permitted to apply for a special exception for a sign not to exceed 10% of the building façade, calculated to be 10% of the measurement from roofline to foundation, subtracting out any glass).
P. Bealo offered that it has been the Board’s position that one size does fit all when it comes to oversized signage, citing Baron’s as the example.
There was discussion of the type of sign that was proposed, which was noted to be the typical Shaw’s logo design with LED lighting.
P. Bealo asked if the sign would be shut off when the store was closed.
B. Bailey replied that it would be on a timer that was included on the store’s main computer.
There was discussion regarding LED versus neon lighting. Mr. Bailey offered that LED lighting emitted less lumens than neon lighting, didn’t “travel” as far as typical neon lighting, yet provided the store with adequate recognition and advertising.
L. Ordway noted that the application was for four (4) times larger than the ordinance allowed.
B. Bailey acknowledged the size, reminding that five store fronts occupying the same space would be entitled to far more square feet of signage without a variance.
There were rough calculations made to determine the size of a sign that would be permitted under a 10% special exception.
D. Emery inquired if the Shaw’s and the Osco were going to be treated as two separate entities if both would be entitled to 10% special exceptions.
P. Bealo asked how high the letters were proposed to be.
B. Bailey replied they would be four (4) feet.
P. Bealo asked how far the store front was from the nearest street.
B. Bailey offered that his very rough estimate of the square footage of the building façade was that it would approximately 6000sq. ft. with about 500 sq. ft. of glass, leaving 5500 sq. ft. of building façade and permitted a 10% special exception of approximately 550 sq. ft.
L. Ordway asked what the proportion of Shaw’s versus Osco’s in floor space and if those numbers could be applied to the building façade.
B. Bailey said that he did not have those numbers.
There was a discussion of a variance application versus a special exception application. It was noted that since the application was advertised to abutters as a variance the Board could not now decide to grant a special exception without re-advertising.
P. Bealo offered that the building being setback was not a hardship in the land as the placement of it was not the Town’s decision, but the property owner’s choice.
L. Ordway suggested that a variance at this location would be inconsequential as this area would most likely always be commercially zoned.
L. Ordway asked if the Board had any additional questions. There were none. He asked if there was anyone speaking in favor of the application. There was no one. L. Ordway asked if there was anyone speaking in opposition to the application.
Gail Donovan, 5 Wentworth Ave, offered that she had already suffered enough with the redevelopment of the plaza, noting lights on all the time and the devaluation of her property for its residential use. She added that Shaw’s should have to comply completely with the law (ordinance). Ms. Donovan
L. Ordway closed the hearing on the Shaw’s application.
Osco’s sign discussion:
B. Bailey noted that the application for the Osco sign was much the same as the Shaw’s sign with the exception that the sign was 49.6 sq. ft. not 119.21 sq. ft. He offered a similar example of the store front being divided into five typical units each with a fifteen (15) sq. ft. secondary sign (maximum sign for a second attached sign for a single business), which would total 75 sq. ft. of signage, larger than their application of 49.6 sq. ft. He added that the current ordinance was unfair to larger anchor store and the sign would not be readable at fifteen square feet.
L. Ordway noted the that sign faced the Haverhill, MA side of the property and asked if there would be any leakage of light to the abutting residential properties.
B. Bailey offered that the closest building was across the street (a brick building next to the American Legion building) and was current vacant. He added that the LED lighting would not travel to other properties, noting that it wouldn’t even cut through fog, unlike neon signage.
There was additional technical discussion regarding LED and neon lighting.
R. Loeffler asked if the variance were granted and Shaw’s opted out of the plaza if the sign could be replaced by the new entity. It was confirmed that it could be.
L. Ordway asked if the Board had any additional questions. There were none. He asked if there was anyone speaking in favor of the application. There was no one. L. Ordway asked if there was anyone speaking in opposition to the application.
G. Donovan reiterated her concerns about current conditions on the site and asked that the application not be granted.
Ms. Donovan was encouraged to address her concerns regarding other issues on the site to the Building Inspector.
Kelly Bresnahan, 5 Lower Road, noted that there were residential abutters on the Haverhill side of the parcel and they could be affected by the larger sign.
L. Ordway closed the public hearing regarding the Osco sign application.
L. Ordway explained the Board’s procedures for hearing and deliberations.
#07-13: A request from the Town of Plaistow, Board of Selectmen, for an appeal of the administrative decision of the Planning Board, regarding the interpretation of “accept for consideration” in reference to when a plan is protected from zoning changes. There is no plan reference for this application; the question is regarding when a building cap becomes applicable under the Town’s elderly housing ordinance.
C. Clark noted that he was an abutter to one of the elderly housing projects being considered and which could be affected by this decision and he asked to be excused from the hearing. (C. Clark left the table)
L. Ordway appointed R. Cole to take the place of C. Clark for this matter.
Jason Hoch, Plaistow Town Manager and John A. Sherman, Plaistow Selectman, were present for the application.
J. Hoch gave a brief history of how the Planning Board developed a new elderly housing ordinance, which was adopted at Town Meeting last March. He noted that the issue of how to apply the unit cap was not discovered until developers started making applications shortly after the adoption of the ordinance. Mr. Hoch read the section (Article VII, § 220-55) in question highlighting the phrase “accept for consideration any proposal” which was the basis of their application. He explained that it was the position of the Board of Selectmen (BOS) that the specific wording of the ordinance calls for units to be
deducted from the cap at the time of the first application (i.e. preliminary hearing), not once they plan is accepted as (technically) complete and the Planning Board (PB) accepts jurisdiction of a plan, which was offered as the PB’s administrative decision as to when the unit cap would be applied.
J. Hoch offered that as of August of 2006 the State Legislature adopted RSA 676:12 which offered protections to applicants from zoning changes and vesting the application at the time of abutter notification. Mr. Hoch suggested that should be the same benchmark for the imposition of the unit cap since the law now recognized legal protection at the time of first abutter notification.
L. Ordway asked about the PB procedure for the intake of applications. He suggested that once an application was received and “stamped in” that should be the determining point.
J. Hoch agreed, noting that was the position of the BOS. He offered an overview of the PB application process and the path that the average application would follow to approval. J. Hoch added that the four plans, submitted before the ordinance was repealed and protected from that change, were all legally noticed for a public hearing on March 21 and how those applications were received by the Planning Office should be the trigger for application of the unit cap. He noted that it was the position of the BOS that any plan that included units which exceeded the cap should not have “accepted for consideration” as stated in the ordinance and should not have been legally noticed or only noticed for the number of units available under the cap.
R. Loeffler asked what happened to an application that was not followed through.
J. Hoch offered that the units go back into play.
R. Loeffler inquired how those units get re-advertise as being available.
J. Hoch offered that developers with an interest would be responsible for checking with the Planning Office.
L. Ordway asked if it was the practice of the Planning Office to log in the number of units that are being applied for and deducting them from the unit cap.
J. Hoch offered that if the BOS’s perspective prevail that would ideally be what would have happened, but that this was also the first building cap in an ordinance, so the Planning Office had not had time to develop procedures to administer it in the brief time between Town Meeting and receipt of the applications.
J. Sherman suggested it would have been helpful if the ordinance had clarified what “accept for consideration” actually meant/
L. Ordway asked if the Board had any additional questions. There were none. He asked if there was anyone speaking in favor of the application. There was no one. L. Ordway asked if there was anyone speaking in opposition to the application.
Dennis Donovan, 39 Greenfield Drive, offered that the developers are protected under 676:12 and allowing applicant’s to not conform to what ever restrictions there may be in the ordinance or in the application of a cap was detrimental to the residents of Plaistow.
A letter from Timothy E. Moore, Chairman of the Planning Board, expressing his personal interpretation of when the unit cap was intended to be applied under the new elderly housing ordinance was read into the record. He offered it was the intent that units be deducted once the application was “accepted as complete” meaning all the technical aspects of the plan were present and the plan could be moved forward towards approval by the PB.
There was additional discussion regarding the PB approval process. It was noted that the first step is a preliminary review by the PB, which is legally notice to abutters and it primarily to provide input from the Board and abutters and give an applicant direction regarding a newly proposed plan. It was added that once this step is legally noticed the protections of RSA 676:12 are applied. The second step in the process is for the plan to be complete enough in a technical sense that the PB can accept jurisdiction over the plan, which is not the same as approval and does not bind the PB to accept the plan. If there are changes to be made or if the details of the plan are all in order the application then moves on to a vote for approval (either conditional or without conditions), which is the final step.
R. Loeffler asked if the abutters are notified at the first step (preliminary hearing).
J. Hoch answered that abutters are notified for all steps.
D. Donovan offered that he has attended all the PB meetings were the four applications have been discussed thus far. He offered that the last application in that exceeded the unit cap should not have been accepted.
D. Lloyd asked if a developer could come in and make a preliminary application that was not yet technically complete but would be a place holder for a certain number of units.
J. Hoch replied that as long as basic information was submitted the application could be scheduled for a preliminary hearing at the applicant’s date of choosing.
D. Lloyd suggested that it only made sense to start deducting the units at the time of the preliminary application.
J. Sherman offered that the ordinance does not say once “accepted as complete” it reads “accept for consideration.” He noted that T. Moore’s letter was what suggested the two were synonymous.
P. Bealo asked if the PB’s interpretation was followed how the cap would be applied.
J. Sherman cautioned that he was not speaking for the PB and he could only offer his own understanding.
J. Hoch offered that it would be at the time the PB accepted jurisdiction of the plan, which he felt would create a race as to who had the fastest engineer.
J. Sherman suggested that if the PB wanted the unit cap applied at the time the plan was “accepted as (technically) complete” then that is how the ordinance should have been written. He added that there were many ambiguities within the ordinance, which led to the PB requesting that the BOS schedule the Special Town Meeting to allow the voters the chance to repeal the ordinance.
J. Hoch added that it was important to consider RSA 676:12 and the protections that were offered the applicant at the time of the preliminary hearing. J. Hoch noted a letter received from the counsel of a local homeowner’s association (a copy was also received by this Board) which reinforced the BOS argument that the protections of RSA 676:12 were applicable to any applicant. He noted that if those protections
had not gone into place in August of 2006, this application would not have been necessary.
L. Ordway closed the public hearing on the Appeal of Administrative Decision.
#07-15: A request from Steven Rugoletti, for a variance from Article V, §220-32I, to permit a shed to be located within 3.9 feet of the rear property line, where 15 feet is the minimum. The property is located at 12 Stanwood Ave, Tax Map 41, Lot 50 in the MDR district. The applicant is the owner of record.
C. Clark rejoins the table.
P. Bealo, noting a personal relationship with the applicant, requested to be excused from hearing the application. (P. Bealo leaves the table)
R. Cole remains appointed to hear this application.
Steven Rugoletti was present for the application. He explained that he would like to remove an existing shed, which was in poor conditional, structurally unsound and currently located in the side setback and build a new shed of similar size in the back of the lot. He noted that the new shed if it were to meet all setback requirements would be located nearly in the middle of his back yard. S. Rugoletti offered that if he were allowed to place the shed where he wanted to it would be next to a wooded area of one abutter’s property and near a shed located on another abutter’s property.
There was review of the Plaistow tax map and discussion of the location of the subject and abutting properties.
R. Loeffler asked what the size of the proposed shed.
S. Rugoletti explained that it was planned to be 16’ X 20’ with an overhang to cover his emergency generator. He added that the overall footing and roofline would be 12’ X 20’.
L. Ordway questioned if the new shed was larger than the existing shed.
S. Rugoletti replied that the existing shed was approximately 16’ X 20’.
L. Ordway asked if the Board had any additional questions. There were none. He asked if there was anyone speaking in favor of the application.
Peter Bealo, 82 Sweet Hill Road, suggested that this application was very similar to an application granted to one of Mr. Rugoletti’s neighbors at the last meeting. He offered that the lots had similar restrictions to them in that the structures were set back from the road and the lots were narrow. He added that putting a shed in the middle of the back yard ruined the use of the property and that there was most likely a septic in the back yard as well.
A letter of support signed by three abutters was also read for the record.
The abutters signing the letter were:
- Wayne Machado, 9 Duston Ave
- William Hallahan, 7 Duston Ave
- Robert K. Lang, 10 Stanwood Ave
L. Ordway asked if there was anyone speaking in opposition to the application. There was no one and the hearing was closed.
The chairman called for a break at 8:20 p.m. The meeting was called back to order at 8:27 p.m.
DELIBERATIONS:
#07-18: A request from Bailey Sign, Inc. for a variance from Article IX, § 220-59A to permit a 119.21 attached primary building sign where 30 square feet is the maximum allowable. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The owner of record is Plaistow Project, LLC.
#07-19: A request from Bailey Sign, Inc. for a variance from Article IX, § 220-59A to permit 49.6 attached secondary building sign where 15 square feet is the maximum allowable. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The owner of record is Plaistow Project, LLC.
(Voting members for this matter are: L. Ordway; J. Matthews; R. Loeffler; P. Bealo and C. Clark)
J. Matthews moved, second by C. Clark, to grant the variances for a 119.21 sq. ft. Shaw’s sign and the 49.6 Osco’s sign at 4 Plaistow Road.
L. Ordway summarized the application, noting that the two businesses would be issued separate COs while sharing the same floor space in a commercial building. He continued that under the ordinance for a special exception the applicant would qualify for a sign of up to (approximately) 550 sq. ft. L. Ordway reminded that a variance would go with the property in perpetuity.
P. Bealo expressed concern that a precedent would be set by granting a variance for an oversized sign rather than a special exception, which would cease if Shaw’s/Osco were to vacate the building.
(It should be noted that a special exception does not expire with the sale or vacating of a commercial unit, unless the applicable ordinance expressly requires that it do so.)
There was discussion as to whether or not precedent would be set by granting a variance for these oversized signs. It was noted that MB Tractor (194 Plaistow Road) had been granted a variance as well as Baron’s (12 Plaistow Road).
The Board reviewed the criteria for the granting of a variance with the following results:
- There would be no decrease in the surrounding property values.
Ms. Donovan’s concerns over her declining property values was noted, however it was thought that those decreases were related to the construct of the plaza and not these sign applications.
C. Clark noted that the previous sign for the Market Basket that was at this plaza far exceeded the size of this requested sign.
- The public has an interest in being able to find these commercial locations and in having traffic properly directed to businesses
P. Bealo offered that there would most likely be pylon signage indicating the location of the store.
- Hardship
There was discussion as to why the applicant answered the questions relating to a “use” variance, instead of an “area” variance. It was determined that the location of the building on the property with perspective to the roadways offered somewhat of a hardship in visibility.
- It was decided that there could be substantial justice in the granting of the variance as the plaza was rather large and there would be two businesses located in a rather large commercial space and therefore the request for a larger sign made sense.
- The spirit and intent of the ordinance was to keep lighting under control and prevent the creation of a “Las Vegas” type atmosphere in the commercial district. It was noted that this sign would not do such and would primarily be visible from Route 121 and Route 125. It was also noted that the sign for MB Tractor was a larger sign.
There was continued discussion as to whether or not the application was better suited to a 10% special exception rather than a variance, and thus relieving the concern over the oversized sign continuing to move forward with the property.
P. Bealo expressed concern over what the status of the sign would be if Shaw’s were to move on in five years.
R. Loeffler suggested that Shaw’s would be there long term.
There was discussion of how different business entities come and go. It was discussed that the property was commercially zoned and it was not foreseeable that it would ever be changed to another type of zoning and therefore the perpetuity of a variance had less of an impact.
R. Loeffler suggested that it would be an improvement over what signage was previously there at the plaza.
L. Ordway offered that he was hearing that the Board was not against a larger sign, but they were against the type of relief (variance versus special exception) that was being sought by the applicant.
There was no further discussion on the motion. It was noted again that the vote was to grant both variance requests. The vote was 2-3-0 (L. Ordway, J. Matthews and P. Bealo dissenting). The motion to grant the variances is defeated.
The Board offered the following reasons for the denial:
- The primary reason was that the Board felt that this application was better suited to a 10% special exception.
- There was no hardship to grant a variance, since the same result could be achieved by the granting of special exception
#07-13: A request from the Town of Plaistow, Board of Selectmen, for an appeal of the administrative decision of the Planning Board, regarding the interpretation of “accept for consideration” in reference to when a plan is protected from zoning changes. There is no plan reference for this application; the question is regarding when a building cap becomes applicable under the Town’s elderly housing ordinance.
(Voting members for this matter are: L. Ordway; J. Matthews; R. Loeffler; P. Bealo and R. Cole)
P. Bealo moved, second by L. Ordway, to grant the Board of Selectmen’s request for an appeal of the administrative decision of the Planning Board.
L. Ordway summarized the points of the hearing noting that this board was being asked to determine when units should begin to be deducted from the unit cap established under the (now repealed) Elderly Housing Ordinance. He noted it was offered that there are three (3) basic steps that a plan follows in the PB approval process:
- Turned into the Planning Office for scheduling of a preliminary hearing
- Accepted as technically complete by the PB
- Approved by the PB
L. Ordway suggested that it was important to move the item to the farthest point in the process that protection is offered and that would be at the time that the application was taken in and legally noticed.
R. Cole asked what was to prevent one developer from filing and application that would take the entire unit cap and unfairly lock all others out.
There was discussion as to whether or not it created an unfair situation where one developer could make an application to the PB for a preliminary hearing for all available units and essentially lock out all other potential applicants.
It was noted that there was nothing in the ordinance to prevent that even with the unit cap being assessed at the time the plan is accepted as complete by the PB, which it reported to be their trigger to deduct the units.
R. Loeffler offered that it was all in the developer’s strategizing their applications.
There was additional discussion of the Planning Board approval process and when protections were offered to applicants under RSA 676:12. The Board discussed hypothetical scenarios that track the path an application would take under each (BOS and PB) interpretation of the ordinance and the imposition of the unit cap. It was suggested that 676:12 was key and that while it offered protections it appeared to offer restrictions to the applicants as well. It was conceded that there would be strategizing among the developers in any situation where a cap was involved and that would best be left to human nature.
There was discussion on the significance of voting “yes” or “no” to the motion. It was clarified for the members that voting “yes” to the motion meant that you agreed with the BOS’s interpretation and that the units should be deducted from the unit cap of the elderly housing ordinance at the time of the preliminary hearing (first legal noticing).
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#07-15: A request from Steven Rugoletti, for a variance from Article V, §220-32I, to permit a shed to be located within 3.9 feet of the rear property line, where 15 feet is the minimum. The property is located at 12 Stanwood Ave, Tax Map 41, Lot 50 in the MDR district. The applicant is the owner of record.
(Voting members for this matter are: L. Ordway; J. Matthews; R. Loeffler; C. Clark and R. Cole)
J. Matthews moved, second by R. Loeffler, to grant the application for a setback variance for a shed to be located with 3.9 feet of the property line at 12 Stanwood Ave.
L. Ordway summarized the evidence presented noting the following:
- The existing shed was said to be decrepit and not able to be saved
- For a new shed to comply with the set back requirements places it in the middle of the back yard
- There were no abutters speaking in opposition, in fact there was a letter expressing support of the application signed by three abutters
- The variance would establish a footprint for the shed that would remain with the property forever
The Board reviewed the criteria for the granting of a variance with the following findings:
- There would be no decrease in the surrounding property values. It was noted that the location of the shed would be an improvement to the property and perhaps increase the value as well as get rid of a decrepit structure
- The public doesn’t really have an interest in a shed in someone’s back yard. The shed would be located next to a wooded area and would not affect others
- There is a hardship in the fact that this is only a .25 acre lot and deny the application requires that the shed be put in the middle of the back yard, which would limited the owner’s use of the property.
- There is substantial justice in allowing the homeowner better use of his property
- The spirit and intent of the ordinance is to allow for separation of structures, which is not an issue in this case
R. Loeffler stated that he wished that he had asked what the roofline of the shed was proposed to be, noting that a gambrel roof would offer a larger storage area than a traditional peaked roofed.
There was no further discussion on the motion. The vote was 5-0-0 U/A. and the variance was granted.
The chairman adjourned the meeting at 9:22 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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