ZONING BOARD OF ADJUSTMENT
October 25, 2007
The meeting was called to order at 7:03 p.m.
Roll Call: Larry Ordway, Chairman; Julie Matthews, Vice Chairman; Peter Bealo (arrived 7:05pm); Robert Loeffler and Clifford Clark. Also present was alternate Dan Lloyd.
L. Ordway appointed D. Lloyd as a voting member until such time as P. Bealo arrived and for the matter of the re-hearing request for case #07-13 (C. Clark is recused from that matter).
Minutes of September 27, 2007
J. Matthews moved, second by C. Clark, to approve the minutes of the September 27, 2007, meeting. The vote was 5-0-0 U/A.
P. Bealo arrived at 7:05 p.m.
REQUEST FOR CONTINUANCE
#07-24: A request from James M. Lavelle for an appeal of the administrative decision of the building inspector to reject a septic plan as submitted. The related property reference is 9 Birch Street, Tax Map 25, Lot 1 in the MDR district. The property owners of record are Patricia G. Bennett & Arthur K. Wicks.
#07-25: A request from James M. Lavelle for a variance from Article IV, §220-24A to locate a septic within 100’ of a wetland. The property is located at 9 Birch Street, Tax Map 25, Lot 1 in the MDR district. The property owners of record are Patricia G. Bennett & Arthur K. Wicks.
A request from the applicant to continue these two matters to allow consultation with the Conservation Commission was read for the record.
J. Matthews moved, second by C. Clark, to grant the request for continuance for cases #07-24 and #07-25. The vote was 5-0-0 U/A.
#07-21: A request from Plaistow Project, LLC, for a variance from Article IX, §220-59A, to permit a 400 sq. ft. pylon sign, where 150 sq. ft. is the maximum allowed. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The applicant is the owner of record
Jen Viarengo, Appledore Engineering, Inc., and Marjorie Hession, Plaistow Project, LLC, were present for the application.
J. Viarengo explained that the Stateline Plaza was in the process of being redeveloped and then the Shaw’s would be relocating there. She continued that there are currently two existing pylons signs on the property, the total square footage of which exceed 500 sq. ft. Ms. Viarengo offered that they would like to remove both of these signs and replace them with one free standing pylon sign that would be 400 sq. ft. in size.
J. Viarengo suggested there were a number of benefits with this request as follows:
- There would be one pylon sign instead of two, which is not permitted under current zoning
- One of the signs proposed to be replaced is digital and would no longer be allowed under current zoning
- The sign would be twenty-five feet in height which is the tallest sign allowed under current zoning. One of the signs proposed to be replaced is thirty feet high and therefore is non-compliant
J. Viarengo continued that the existing signage is grandfathered to continue to be used but they would like to replace them with the proposed single pylon as it would be costly to rehab them to bring them up to the level of the redeveloped plaza. She added that this application would be a non-compliant situation closer to the ordinances and would be an attractive addition to the plaza, without being contrary to the Plaistow ordinances.
L. Ordway asked how the proposed pylon sign compared with other signs at other plazas.
J. Viarengo replied that she had not done measurements on other pylon signs, adding that there was a rather large sign at the Shaw’s Plaza located across the street. She noted that the proposed pylon would be far more attractive then the two existing pylon signs.
L. Ordway asked if there were any pylon signs proposed for the Haverhill portion of the property.
M. Hession answered that there would be a pylon sign proposed at the entrance on the Route 121 side of the property, which is located in Haverhill.
L. Ordway inquired if the sign would be internally lit and what the hours of operation would be.
M. Hession replied that they would operate the same hours as the plaza (it was noted that the current Shaw’s is open 7:00 a.m. to 11:00 p.m.).
P. Bealo asked for confirmation that the sign would only be lit during business hours.
M. Hession noted that it may be slightly longer as employees exit the plaza.
P. Bealo offered that the pylon sign would not be used for lighting the plaza for employees to safely get to their vehicles.
There was a discussion of the location of the proposed pylon sign. It was noted to be placed next to the main entrance to the plaza, similarly to the larger of the two existing pylons.
R. Loeffler asked what the plan was for the sign at the plaza across the street (5-9 Plaistow Road, the current location of the Shaw’s Supermarket).
J. Viarengo offered that they did not own the plaza across the street or the sign and didn’t have any information if there was a plan to change the name of the plaza (currently known as “Shaw’s Plaza”).
L. Ordway asked if there were any further questions from the Board, there were none. He asked if there was anyone speaking in favor of the application or in opposition. There was no one and the matter was closed.
#07-22: A request from James M. Lavelle for a special exception under Article III, §220-8C, to permit the expansion of a non-conforming commercial lot. The property is located at 147 Plaistow Road, Tax Map 30, Lot 71 in the CI district. The property owners of record are Pierre & Alyce Sader.
#07-23: A request from James M. Lavelle for a variance from Article V, Table 220-32J, to permit the construction of a commercial addition 26.3’ from the property line where 35’ is the minimum allowed. The property is located at 147 Plaistow Road, Tax Map 30, Lot 71 in the CI district. The property owners of record are Pierre & Alyce Sader.
James Lavelle, Lavelle and Associates, Inc., and Pierre Sader, property owner, were present for the application.
J. Lavelle described the site, noting it to be a commercial property located on Route 125. He added they the owner would like to make a 120 sq. ft. addition to the 1636 sq. ft. building. Mr. Lavelle explained that since the existing building was currently within the building setback, measuring at 26.3 feet, a special exception was needed in order to allow the expansion of the building. He added that they would like to continue to follow the same line of the existing building and again, the building is in the set back, so a variance is required. J. Lavelle added that the lot coverage of the property was 40%, which wouldn’t change as the proposed addition would replace existing pavement.
L. Ordway asked what the addition would be used for.
J. Lavelle offered that the current use was as a tire shop and the addition would allow for more equipment and to increase the work area.
There was a discussion regarding the location of the property and the uses of the abutting properties. It was noted that there was a reptile business, which was well set back from the road, located to the north of the subject parcel and that Sanborn’s Candies was located to the south of the property, separated by a vacant lot.
There was additional discussion regarding the size of the proposed and the existing building.
L. Ordway asked if the proposal had been brought to the Planning Board.
J. Lavelle explained that they had been to the Planning Board for a preliminary hearing, but still had to file for a final application. He added that he had received multiple reviews from the planning staff and believed that he had answered all their concerns.
It was noted for the record that it was the Planning Board that sent the property owner to the Board to apply for the needed reliefs.
L. Ordway asked if there would be any new landscaping or fencing.
J. Lavelle noted the natural tree line to the back of the property as well as a rail fence across the front of the lot. He added that they had not yet discussed any new landscaping.
It was offered that there is a site plan regulation regarding landscaping and that the Planning Board would be deciding if there was a need for any changes or additions.
P. Bealo asked how much of an increase over the existing building the proposed addition would be.
J. Lavelle replied that he had not “done the math” on the existing building but believed it to be less than 50%.
P. Bealo inquired if there would be additional employees as a result of the addition.
P. Sader answered that he would need someone to operate the new equipment that he planned to bring in.
There was a discussion regarding the parking on the site. It was noted that there was adequate parking and that also would be looked at by the Planning Board.
L. Ordway asked if there were any wetlands on the property.
J. Lavelle replied that the property was very flat and there were no wetlands on the site.
R. Loeffler asked if the proposed addition would follow the roofline of the existing building.
J. Lavelle confirmed that it would.
L. Ordway asked if there were any further questions from the Board, there were none. He asked if there was anyone speaking in favor of the application or in opposition. There was no one and the matter was closed.
#07-26: A request from George & Christina Nelson for a special exception under Article VIII, all sections to permit an in-law apartment. The property is located at 3 Sweet Hill Road, Tax Map 52, Lot 9 in the MDR district. The applicants are the owner’s of record.
George Nelson, property owner, was present for the application. He explained that his father lives in North Carolina and his wife’s mother lives in New York and this apartment would be used by each of them, at different times, when they came for visits, which usually lasted for a few months at a time.
The Board reviewed the requirements for the granting of a special exception for an in-law apartment noting the following:
- The entrance is on the front of that garage structure that sits in back of the main dwelling unit
- The appearance will still be that of a single-family dwelling
- The single-family dwelling it not a condominium, duplex or trailer
- The in-law apartment will be 716 sq. ft. in size
- There is only one bedroom
- The Nelson’s have owned the property continuously for more than twelve calendar months
- There will only be the two parents using the apartment, at differing times
- The apartment can never be converted to a separate ownership
- Approval of the septic plan is pending with NHDES (New Hampshire Department of Environmental Services) but has been reviewed by the Building Inspector who stated in writing there were no issues
- All utilities will continue to be maintained on a shared meter
- The special exception to allow the in-law apartment ceases with the sale of the property and subsequent owners must obtain their own special exception to allow the continued use
R. Loeffler asked how far off the property line the existing building was set.
G. Nelson answered that it was 16’ 8” (NOTE: minimum setback in the MDR district is 15’).
L. Ordway asked if there were any further questions from the Board; there were none. He asked if there was anyone speaking in favor of the application.
William Scully, 5 Sweet Hill Road, offered that Mr. Nelson had spoken with him regarding the proposal, adding that he and his wife had no objections.
A letter from Eileen and David Cantone, 15 Palmer Ave, was read into the record. The letter stated there were no objections to the application.
L. Ordway asked if there was anyone speaking in opposition to the Nelson’s petition. There was no one and the matter was closed.
#07-27: A request from Bailey Sign for a special exception from Article IX, §220-59A to permit a 321 sq. ft. attached sign that is said to be +/- 6% of the building façade. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The property owner of record is Plaistow Project, LLC.
Bruce Bailey was present for the application.
It was noted for the record that written authorization for the application had been received from the property owner.
B. Bailey reminded that he had been before the Board the previous month with two variance applications for oversized signs. He offered that the Board had left him with the impression that a 10% special exception would be the more appropriate application and he was back with the proposal this meeting.
B. Bailey explained that the building façade for the Shaw’s/Osco space was calculated to be 6,754 sq. ft. Subtracting out all the glass, left an area of 5,565 sq. ft., 10% of which would be approximately 557 which would be permit for a sign under the ordinance. He continued that they had combined the Shaw’s and Osco signs into one sign that measured 321 sq. ft., which he felt met the requirements of the ordinance.
L. Ordway asked if the Board had any questions.
L. Ordway stated that he assumed that all the features of the type of lighting fixture (i.e. LED lighting) from the previous application still applied.
B. Bailey replied that it did, they would be using the same low wattage LED and the sign would only be lit during business hours.
L. Ordway asked if there was anyone speaking in favor of the application. There was no one. He asked if there was anyone speaking in opposition. There was no one and the matter was closed.
DELIBERATIONS
#07-21: A request from Plaistow Project, LLC, for a variance from Article IX, §220-59A, to permit a 400 sq. ft. pylon sign, where 150 sq. ft. is the maximum allowed. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The applicant is the owner of record
P. Bealo moved, second by J. Matthews, to grant the request for a variance to permit a 400 sq. ft. pylon sign at 4 Plaistow Road.
L. Ordway summarized the application noting the following:
- The proposed 400 sq. ft. sign would replace two existing pylon signs that were greater than 500 sq. ft
J. Matthews offered that the new pylon sign would be much more attractive.
P. Bealo reminded that there would no longer be a (digital) reader board if the pylon sign is replaced.
L. Ordway continued that the sign placement at the entrance to the plaza would benefit the public.
P. Bealo added that the new sign would be no taller than the shorter of the two existing signs.
The Board reviewed the criteria for the granting of a variance finding the following:
- There would be no decrease in surrounding property values. The surrounding properties are all commercially zoned and the sign will not be seen be the few residential uses, either in Plaistow or Haverhill
- The sign is not contrary to the public’s interest, which is that signs identify specific locations without taking on the look of Las Vegas. The public interest benefits from there being one attractive sign instead of two non-compliant ones
- The hardship would be that the applicant would have to go back and remodel and the existing pylon signs and the there would still be two of them
- Both the applicant and the general public are gaining with the new sign. The applicant has a nice looking display for the redeveloped plaza and the public gets rid of two unattractive and non-compliant signs for one attractive and informative one
- The spirit and intent of the ordinance is to control the size of signs and this size being smaller and more compliant is not contrary to that.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#07-22: A request from James M. Lavelle for a special exception under Article III, §220-8C, to permit the expansion of a non-conforming commercial lot. The property is located at 147 Plaistow Road, Tax Map 30, Lot 71 in the CI district. The property owners of record are Pierre & Alyce Sader.
J. Matthews moved, second by P. Bealo, to grant the request for a special exception permit the expansion of the non-conforming lot at 147 Plaistow Road.
The Board reviewed the requirements for the granting of this special exception noting the following:
- The frontage of 150 feet was more than half of the minimum frontage required in the CI district
- The well and septic in their current location meet all State and local requirements
- The proposed improvement will not endanger the public health or welfare
- A certification of the location of the foundation will be submitted to the building inspector at the appropriate time
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#07-23: A request from James M. Lavelle for a variance from Article V, Table 220-32J, to permit the construction of a commercial addition 26.3’ from the property line where 35’ is the minimum allowed. The property is located at 147 Plaistow Road, Tax Map 30, Lot 71 in the CI district. The property owners of record are Pierre & Alyce Sader.
P. Bealo moved, second by C. Clark, to grant the request for variance from Article V, §220-32J to permit construction of a commercial addition 26/3’ from the property line where 35 feet is the minimum allowed.
L. Ordway summarized the evidence presented in the application noting the following:
- The request is for an approximately 9 foot variance
- The property does not project straight back from Route 125, but the building is set as if it did
- The application is proposed to continue the same line of the existing building, to not do so would make the building look strange
The Board reviewed the criteria for the granting of a variance noting the following findings:
- There would be no decrease in the surrounding property values. All the surrounding properties were commercially zoned and being used as such (it was noted that there is a vacant lot between the subject property and Sanborn’s Candies). The new building would not be constructed any closer to the property line than the existing one is
- There is nothing contrary to the public interest, which is the separation of buildings, as this building will maintain the same distance as it does now.
- If the variance is denied there would be a hardship to the owner seeking to expand his business and a taking away of his right to use the land
- The prevent the expansion in this instance would be an injustice to the property owner as there would be no injury to the public by granting the variance
- There is sufficient separation between the structures, even with the addition, therefore the application is not contrary to the spirit and intent of the ordinance
There was no further discussion on the motion. The voted was 5-0-0 U/A.
#07-26: A request from George & Christina Nelson for a special exception under Article VIII, all sections to permit an in-law apartment. The property is located at 3 Sweet Hill Road, Tax Map 52, Lot 9 in the MDR district. The applicants are the owner’s of record.
J. Matthews moved, second by L. Ordway, to grant the request for a special exception to permit an in-law apartment at 3 Sweet Hill Road.
L. Ordway suggested that this was a classic application for an in-law apartment.
P. Bealo offered that the ordinance be amended to be conditional on the receipt of final NHDES approval of the septic design.
J. Matthews agreed to amend the motion, second by L. Ordway.
L. Ordway noted the only difference between this in-law apartment and others is that it will be shared by two in-laws, each at different times, but that was not prohibited by the ordinance.
There was no further discussion on the motion. The vote was 5-0-0 U/A and the amended motion, granting the special exception, was passed conditioned on the receipt of a State approved septic plan.
#07-27: A request from Bailey Sign for a special exception from Article IX, §220-59A to permit a 321 sq. ft. attached sign that is said to be +/- 6% of the building façade. The property is located at 4 Plaistow Road, Tax Map 24, Lot 44 in the CI district. The property owner of record is Plaistow Project, LLC.
R. Loeffler moved, second by C. Clark, to grant the request for a special exception to permit a 321 sq. ft. sign, which is said to be less than 10% of the building façade for the portion of the building to be used by Shaw’s at 4 Plaistow Road.
P. Bealo offered that the proposed sign was far less than the 10% that would be allowed under the ordinance.
L. Ordway added that it would offer good visibility from either Route 125 or Route 121 without being visible to the abutters.
There was no further discussion on the motion. The vote was 5-0-0 U/A and the special exception was granted.
#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 is recused in this matter. D. Lloyd’s appointment as a voting member is continued for this matter.
L. Ordway moved, second by J. Matthews, to grant the Plaistow Planning Board’s request for a re-hearing in the matter of the Plaistow Board of Selectmen’s appeal of their administrative decision.
L. Ordway noted that all the board members had received a copy of the Planning Board’s request prior to the meeting. He offered that he didn’t see a lot in the letter from the Planning Board’s Attorney that wasn’t presented or discussed at the time of the initial hearing, with the exception of a quotation of an RSA that wasn’t previously offered that proposed that the right of the Planning Board to make a decision was being taken away. He offered that would possibly be enough to justify consideration of a re-hearing and there was no loss in doing so.
P. Bealo offered that he disagreed. He recalled discussions at the hearing regarding RSA 676:12 and just throwing out other RSAs (674:33 and 676:4) didn’t rise to the level of new evidence. He added that he had read those RSAs and didn’t see anything in them that wasn’t included in the discussion at the meeting. He added that the hypothetical argument that was present was exactly that and not something that a decision should be based on.
L. Ordway recalled that decision was to move the count farther forward in the process.
P. Bealo offered that the Board did have discussions regarding the scenario where an applicant might consume all the units with an initial application and temporarily lock out other applications. He added that he reviewed the record and there was nothing the he could recall from any of the Board’s discussion or deliberations that stated that any units not used by an applicant were lost forever, and that the ZBA deliberations specifically stated that units not used would be returned to the pool for future applicants.
L. Ordway noted that if an applicant came in with a valid application for 264 units and if through the planning process it was determined that only 200 units would work on the property then the sixty-four (64) units would go back to the next applicant in line.
P. Bealo added that this process didn’t deny the units to other applicants only delayed them.
L. Ordway described the scenario where five applicants want elderly housing units and applicant #1 claims all the units by application. The Planning Board reviews the application and finds that only 200 units can be approved, releasing sixty-four units into the mix again. Applicant #5 just happens to be the first one to call in to find that there are now 64 more units available and makes his application, again shutting out applicants 2, 3 and 4. He questioned whether that would be a fairness concern.
R. Loeffler suggested that they could run many different scenarios with what could happen. He offered that with all the evidence that was presented that night he felt that the Board made a good decision.
L. Ordway offered that he was looking to not have the Board be sued.
R. Loeffler stated that he felt it was important that once a vote is taken that the Board be able to stand behind that vote.
J. Matthews asked if anyone saw that there was new evidence presented in the letter from the Planning Board.
R. Loeffler and P. Bealo said that there was none that they could find.
L. Ordway offered that he did not read the specific ordinance, but that he didn’t see any new evidence either.
D. Lloyd said that he felt everything presented in the letter had been previously discussed at the meeting.
There was no further discussion on the motion. The vote was 0-5-0 and the motion to grant the re-hearing request from the Plaistow Planning Board was defeated.
The reasons stated for the denial were:
- No new evidence was presented in the letter that the Board felt was previously discussed as either part of the public hearing or in their deliberations
- There was no procedural error on the part of the Board
Other Business: Proposal of Changes to Zoning
The Board discussed a list of zoning changes they would like to submit to the Planning Board for consideration.
Other Business: Budget
The Board reviewed the proposed budget for 2008 as well as the revenue statement prepared by staff.
There was a discussion regarding each member receiving their own copy of Town and City Magazine and that being included in the budget.
L. Ordway moved, second by J. Matthews, to present the proposed budget, as amended to include individual copies of Town and City Magazine for all regular members and alternates, to the Board of Selectmen and the Budget Committee. There was no discussion on the motion. The vote was 5-0-0 U/A.
The chairman adjourned the meeting at 8:27 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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