ZONING BOARD OF ADJUSTMENT
June 26, 2008
The meeting was called to order at 7:00 p.m.
Roll Call: Present were Larry Ordway, Chairman; Julie Matthews, Vice Chairman; Peter Bealo; Cliff Clark; Roderic Cole, Alternate; and Dan Lloyd, Alternate (arrived 7:11 p.m.). Robert Loeffler was excused.
R. Cole was appointed as a voting member for R. Loeffler.
Minutes of May 29, 2008
J. Matthews moved, second by C. Clark, to approve the minutes of the May 29, 2008, meeting. The vote was 4-0-1 (Bealo abstaining).
#08-15: A request from Thomas D. Smith, for a special exception under Article X, all sections, to permit a home occupation, namely an office for a business management/computer consulting business. ~The property is located at 182 Plaistow Rd., Unit 2, Tax Map 31, Lot 59-1-2 in the MDR district.
Thomas Smith, 182 Plaistow Road, was present for the application. It was noted for the record that there was a letter of authorization from the Condo Home Owners Association authorizing the application.
T. Smith explained that he would like to have a small computer consulting business located in his home. He noted that he would deal with his clients on a remote access basis, doing mostly trouble shooting, adding that when he did have to deal with clients directly it would be at their site.
The Board questioned Mr. Smith on the requirements for a home occupation under Article X. The answers are as follows:
- The business is permitted under §220-66A
- There are no noxious uses by way of noise, odor, dust, fumes or electrical fluctuations
- Mr. Smith has owned this property for eight (8) years
- The business will be conducted within the residential dwelling using +/- 10% of the living space
- The business will not change the residential character of the dwelling
- There is no sign proposed at this time
- Mr. Smith will be the only employee
- There is nothing being sold, therefore there will be no exterior merchandize displays
- There is off-street parking for the unit, though there will be no customers coming to the home
- There are no covenants in the deed that would prevent there from being a home occupation
- A letter from the condo home owners association authorizing the home occupation was provided
L. Ordway reminded Mr. Smith that should the home occupation be granted it was not transferable; he was subject to periodic inspections by the Code Enforcement Officer; and his permit needed to be renewed every three years.
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
#08-16: A request from Dana Sturk, for a variance from Article V, §220-32J, to permit a structure (garage) within 5 feet of the property line where 15 feet is the minimum. ~The property is located at 14 Walton Rd, Tax Map 30, Lot 42 in the MDR district.
Dana Sturk, 14 Walton Road, was present for the application. He reminded that Board that he had been before them the previous month with and application for a variance to be one (1) foot from the property line for a new garage. Mr. Sturk offered that he had taken what the Board said at that meeting back and adjusted his plan to something the he hoped the Board could approve.
D. Sturk offered that he had downsized the garage from 20’ X 30’ to 18’ X 28’ and he had moved it closer to his dwelling, resulting in the need for a five (5) foot variance, not a one (1) foot.
L. Ordway asked if the garage was running parallel to the dwelling.
D. Sturk confirmed that it was.
D. Lloyd arrived at 7:11 p.m.
L. Ordway questioned why Mr. Sturk was not attaching the garage to the dwelling.
D. Sturk replied that it was a cost saving decision. He noted that he had received quotes to build a detached garage that were around $10,000.00. Mr. Sturk added that since an attached garage would require a frost wall the cost of the concrete alone was $10,000.00.
P. Bealo noted that attaching the garage to the dwelling would have any significant gain, only about two (2) feet.
J. Matthews recalled from the former variance application that Mr. Sturk had wanted to preserve enough room to be able to get equipment to the back yard should there be a future problem with the septic.
P. Bealo noted that there was fourteen (14) feet on the other side of the building.
L. Ordway offered that he had driven past the location and noted it to be wooded on the side of the building where the garage was proposed to go.
D. Sturk presented the Board with pictures that showed the view of his affected neighbor’s property, which showed those dwelling to be some distance away from where the proposed garage would be located. He added that when he was purchasing the property he was told the property line was in one location, but a subsequent survey puts the property line much closer to his house for a loss of about six (6) feet.
L. Ordway asked the distance from the proposed garage to the closest structure on the abutting property.
M. Sturk replied he estimated it to be about 100 feet, adding that his neighbor would have plenty of room to build without the need for a variance.
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
#08-17: A request from Soraghan Realty Trust, for a variance from Article V, §220-32J, to permit a structure (retail building) within 18 feet of the property line where 50 feet is the minimum. ~The property is located at 31 Garden Road, Tax Map 26, Lot 49, 50, 51 in the CI district.
John “Jack” Soraghan, property owner, and David Sanderson, Newland Development Corp., were present for the application.
D. Sanderson explained that they had received conditional approval for their site plan from the Planning Board. He added that one of the conditions of that approval was to receive a driveway permit from the NHDOT (New Hampshire Department of Environmental Services) and that NHDOT was refusing the permit unless Garden Road was continued and connected to Route 125 in the location that is proposed as the driveway. Mr. Sanderson explained that they didn’t have a problem with continuing Garden Road to connect with Route 125, but doing so created a setback problem for the proposed Rite-Aid building.
P. Bealo noted that the Town had recently voted to discontinue Garden Road in the section.
L. Ordway asked why the building couldn’t be relocated.
D. Sanderson explained that would create safety issues with traffic circulation, particularly delivery trucks. He added that there were also steep grades to contend with on the back side of the property. Mr. Sanderson reiterated that this plan met all setback requirements before the NHDOT made their decision.
L. Ordway asked for confirmation that nothing else about the plan would be changed, just that the once driveway would now be Garden Road and would be owned by the Town.
D. Sanderson confirmed that was the case.
P. Bealo echoed that there would be no change to the plan, just in the ownership of a small parcel.
There was a discussion of relocation of Garden Road and how it impacted the site plan with regard to the location of the commercial retail building. It was noted that the Town would be charged with maintaining the new portion of Garden Road and that there would still be access provided for the condos (Southview Condominiums) to the rear of the parcel.
L. Ordway asked if the Town had been able to deed the property to the applicant would the application just move forward. He asked if anyone would be able to use this access as it would be a Town road.
D. Sanderson agreed that would be the case.
J. Soraghan added that the issues of the Town owning Garden Road had been discussed with the Board of Selectmen.
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
#08-18: A request from Foods Plus, for a variance from Article IX, §220-59.C(1), to permit one freestanding, changeable copy sign for a business located in a commercial plaza where only a single freestanding sign is permitted. ~The property is located at 5 Plaistow Road, Tax Map 24, Lot 38 in the CI district. ~The owner of record is Taurus Plaistow Investment, LTD
Dan Johnson, Plaistow Consultants; Norman Dalphond, Foods Plus; and Attorney Beth Rose were present for the application.
L. Ordway noted that on the picture of the proposed sign there was a Sign-A-Rama logo and he asked if there was a relationship between Sign-A-Rama and the application.
N. Dalphond noted that they were just the company who designed the proposed sign and there was no other interest.
D. Johnson noted the letter from Mike Dorman, Building Inspector, denying the type of sign as not being permitted. He then went through the variance criteria offering the following in support of their application:
- There would be any diminishment to the surrounding property values as the sign would not be any larger than the thirty (30) square foot maximum allowed for free-standing signs and would be lighted under the same restrictions
There was a brief discussion on how the thirty square feet was measured in accordance with the ordinance.
- The public who doesn’t know where Foods Plus is located would benefit from the sign being there
- There is a hardship in that the building is located 125 feet from Route 125 in a group of twelve other storefronts with a large parking area in front of it to block the view of the store. There is also over grown landscaping which makes it difficult to see the store. It was also noted that there is a directory sign for the plaza but tenants with frontage are not allowed to put their sign on that pylon
P. Bealo noted that it was not the Town that was restricting their access to putting signage on the directory, that it was a decision of the plaza ownership.
D. Johnson said that it was based on the size and location of the store.
P. Bealo reiterated that it was not a Town problem.
- It was also noted that once a vehicle is at the stop light they are already past the store
D. Johnson suggested only permitting two (2) signs per plaza made aggressive advertizing impossible, and aggressive advertizing was important to staying in business. He added that the landscaping made even the current temporary signs difficult to read.
C. Clark asked if the property owners had been contacted about possibly cleaning up the landscaping to increase visibility.
N. Dalphond replied that they had talked to them about that as well as trying to get on the directory board, but due to other leases they cannot get on the directory. He reminded that they did give a letter of authorization for this application.
There was a brief discussion of how being able to put signage on the directory board was tied into leasing specific units.
- The sign ordinance for temporary signs does not adequately address a plaza of this size.
D. Johnson noted the following unit counts for other plazas
- Stateline Plaza 14
- Wal-Mart (Pentucket Plaza) 8
- Plaza 125 9
- Market Basket Plaza 5
- Former Shaw’s Plaza 37
D. Johnson added that they were just asking to be able to properly advertize the business location.
L. Ordway asked if there were thirty-seven (37) businesses in the plaza or thirty-seven (37) units in the plaza.
D. Johnson noted that there were seventeen (17) units in the north portion of the plaza (5 Plaistow Road) and twenty (20) units in the southern portion of the plaza (9 Plaistow Road).
P. Bealo asked if this variance were to be granted what would prevent the other thirty-six (36) businesses from asking for the same thing and then there would be a plethora of signs all competing for attention on Route 125.
D. Johnson suggested that this was the only plaza on Route 125 with this restriction.
There were pictures presented that showed the plaza where Foods Plus is located as well as other single-business freestanding signs along Route 125. There were also pictures of the subject site taken at different distances to show the elevations and visibility of the store at each distance.
C. Clark suggested hypothetically that FYE could request to put up a sign that would block Foods Plus. He added that he saw the potential for this to turn into a “Plaist-Vegas.”
D. Johnson acknowledged that this would be precedent setting. He reminded that the Planning Board called for a certain amount of landscaping as part of their site plan regulations which makes the storefront very hard to see thus creating the need for the signage.
L. Ordway asked if this was all on one parcel. It was confirmed from the tax maps that 5 and 9 Plaistow Road are on the same parcel.
L. Ordway asked what kind of sign was being proposed.
D. Johnson explained that it would be a (manually) changeable sign.
N. Dalphond expanded that explanation noting the there would be no internal lighting, but noting they had not yet looked into how it would be externally lit.
L. Ordway asked what the hours of operation were for the business.
N. Dalphond replied that they were 7:00 a.m. to 10:00 p.m. weekdays and until 11:00 p.m. on Friday and Saturday.
L. Ordway asked if the sign was intended to be lit those same hours.
N. Dalphond replied that it was usually light enough outside that it wouldn’t need to be, adding the concern for lighting would be in the winter.
D. Johnson reiterated that businesses had the need to advertize and using the phonebook and the internet were okay methods but advertizing sales was best accomplished by signage and visibility at the site. He noted that the current ordinance made it difficult to reach the riding public on Route 125 for those who don’t know where Foods Plus is. D. Johnson offered that many plazas were improving and doing facelifts, landscaping and lighting, but a plaza doesn’t stay alive if the public doesn’t visit it and in this day of tough economics people are becoming more frugal making competition for the consumer dollar tougher. He added that Foods Plus is not a chain store and doesn’t have the benefit of that kind of advertizing; they are just a small store that sells small food items, beer and cigarettes.
He added that Foods Plus had been in business since October 1985, twenty-three (23) years and at that time Market Basket was their only competition. D. Johnson noted that there were only forty (40) feet of store front and only thirty (30) feet of windows to be seen from 125 feet away on Route 125 and reminded that they were not allowed, by the plaza management, to put a sign on the directory pylon.
D. Johnson suggested that this application should have fallen under §220-59B which permits a free-standing sign for a single business and doesn’t specifically state that it only applies to single businesses on single lots.
There were additional pictures presented showing other free standing signs on Route 125. There was also additional discussion regarding the pictures that showed the elevations at different distances.
P. Bealo noted that he was out on Route 125 and could see Foods Plus from the first set of lights (Hazeltine Street intersection).
D. Johnson suggested that P. Bealo had better than average vision and reiterated that most people would not be able to see it from that far away. He added that people who were unfamiliar with the area and concentrating on traffic might not see it was well.
C. Clark asked if there would ever be a “naming rights” opportunity for this plaza.
D. Johnson said that he thought that might only be available to the anchor store.
There was discussion regarding how other plazas were named and it was noted that this was one of the very few that had been named after a store.
C. Clark asked who maintains the landscaping on site.
D. Johnson noted that the landscaping was on plaza property and they were the ones who provided the maintenance.
N. Dalphond added that the plaza maintained it to the sidewalk.
L. Ordway said it would be ideal if they could do some trimming to increase the visibility.
D. Johnson that the timing of the stop light was one (1) minute on green and one (1) minute on red. He added that the speed limit through that area was 35 mph. He discussed a number of calculations relating speed and distance to give a picture of how little exposure Foods Plus received from Route 125 at posted speeds. He suggested that cars are pushed along by other drivers and with the double lanes of parking on the property the visibility was decreased further when there were trucks and SUVs parked in the lot.
B. Rose offered that she didn’t live in Plaistow but she had driven Route 125 from the New Hampshire border to Kingston and had noted a number of freestanding signs for businesses along that drive. She suggested that having all the names for the businesses in the plaza might result in no one having a sign bigger than six (6) inches. Ms. Rose stated that she didn’t think that permitting this one free-standing sign was going to open any kind of “Pandora’s Box.” She noted that franchise signs are permitted by special exception and that Foods Plus did not have a level playing field. Ms. Rose suggested that this was a unique setting the Foods Plus was requesting the relief from. She added that this would be inline with what se saw from driving up and down Route 125 and this was a
realistic request.
N. Dalphond offered that they were just trying to stay alive and that given the proximity to the road and the heavy vegetation they needed to do something to draw attention to their business. He added it wasn’t anything that was out of line with what was seen on Route 125 everyday.
There was discussion of additional pictures of businesses with free standing signs.
C. Clark asked if there was a Plan B should the variance not be granted.
N. Dalphond said that they would only get the temporary sign their allowed six (6) times a year.
C. Clark offered that the citizens of Plaistow didn’t like to see all the signs on Route 125. He added that most anyone local knows where Foods Plus is and pulls right in.
N. Dalphond noted that the permanent sign would be located in the same place as the temporary sign has been being put and would look much better than that sign and his business could use the visibility.
L. Ordway asked if there were any questions from the Board, there were none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the hearing was closed.
The chairman called for a break in the meeting at 8:15 p.m. The meeting was called back to order at 8:25 p.m.
DELIBERATIONS
#08-15: A request from Thomas D. Smith, for a special exception under Article X, all sections, to permit a home occupation, namely an office for a business management/computer consulting business. ~The property is located at 182 Plaistow Rd., Unit 2, Tax Map 31, Lot 59-1-2 in the MDR district.
P. Bealo moved, second by J. Matthews, to approve the request for a home occupation at 182 Plaistow Road.
L. Ordway reminded that the application was for a business management/computer consulting business.
P. Bealo offered that it was a classic application, meeting all the requirements of the ordinance.
There was no further discussion on the motion. The vote was 5-0-0 U/A and the special exception was granted.
#08-16: A request from Dana Sturk, for a variance from Article V, §220-32J, to permit a structure (garage) within 5 feet of the property line where 15 feet is the minimum. ~The property is located at 14 Walton Rd, Tax Map 30, Lot 42 in the MDR district.
C. Clark moved, second by R. Cole, to approve the request for a ten (10) foot variance, to locate a structure five (5) feet from the property line, at 14 Walton Road.
L. Ordway recapped the evidence presented for the application noting that this matter had been heard before as a one (1) foot application and that since then the garage had been realigned and moved closer to the home. He added that the affected abutter was protected by a wooded area and the closest structure would be 100-150 feet away from the proposed garage. L. Ordway suggested that this application was better and still met the needs of the applicant.
J. Matthews reminded that he did take the comments of the Board into consideration.
P. Bealo added that there really was no other place to go with the garage.
The Board reviewed the criteria necessary to be met for the granting of a variance with the following findings:
- There would be no diminishment to the surrounding property values. If fact there may be an increase with the improvement to the property
- There is nothing contrary to the public interest, which is space between structures. There is adequate distance maintain in granting this application
- There is a hardship in the land as there is no other place for the garage to be located without interfering with the septic and leachfield
- There is substantial justice in granting the application as there is no loss to the general public, since most residential properties include a garage
- The spirit and intent of the ordinance, separation of structures is preserved even if the affected abutter were to build to the allowed setback
There was no further discussion on the motion. The vote was 5-0-0 U/A and the variance was granted.
#08-17: A request from Soraghan Realty Trust, for a variance from Article V, §220-32J, to permit a structure (retail building) within 18 feet of the property line where 50 feet is the minimum. ~The property is located at 31 Garden Road, Tax Map 26, Lot 49, 50, 51 in the CI district.
J. Matthews moved, second by C. Clark, to approve the request for a 32 foot variance to locate a retail structure within 18 feet of the property line at 31 Garden Road.
L. Ordway recapped the evidence presented earlier, noting this was a situation that was created by the NHDOT, asking that Garden Road be continued to connect with Route 125.
P. Bealo suggested that the word was more “demanded.”
The Board reviewed the criteria required for the granting of a variance with the following findings:
- There would be no decrease in the surrounding property values as the surrounding area was all commercial. They already have conditional Planning Board approval and nothing about that plan is going to change. It was seen as a huge upgrade for the area.
- There is nothing contrary to the public interest, which is the need for space and separation of buildings from the property line. The space is already there.
- There is a hardship created in the land by the NHDOT demand that Garden Road be continued on.
It was noted that many years ago Garden Road did continue up farther.
- There would be substantial justice in allowing the property owner to develop the land and the public will enjoy a new plaza
- There is nothing contrary to the spirit and intent of the ordinance as the physical space proposed in the conditionally approved plan will still be there, it will just be under a different ownership.
There was no further discussion on the motion. The vote was 5-0-0 U/A and the variance was granted.
#08-18: A request from Foods Plus, for a variance from Article IX, §220-59.C(1), to permit one freestanding, changeable copy sign for a business located in a commercial plaza where only a single freestanding sign is permitted. ~The property is located at 5 Plaistow Road, Tax Map 24, Lot 38 in the CI district. ~The owner of record is Taurus Plaistow Investment, LTD
P. Bealo moved, second by J. Matthews, to approve the request for a variance to permit an additional single freestanding sign in a plaza located at 5 Plaistow Road.
L. Ordway recapped the early discussion on the application noting the it was submitted that there was a unique setting for this business in their location because it is set back 125 feet from Route 125; there are drops and rises in the elevations; and a landscaping buffer that infringes on their visibility. He noted there were Town site plan regulations regarding the landscaping buffer. L. Ordway recalled that there is a directory sign for the plaza and that this business was not allowed by the property management to put a sign on that pylon due to the fact that they have visibility to Route 125, but that is under the owner’s control. The landscaping berms are also under the control of the property owner.
R. Cole noted that the business owner reported they had approached the property owner regarding maintenance of the landscaping.
L. Ordway suggested that having individual freestanding signs would set a precedent for not only this location but would start a “forest” of freestanding signs. He added that every time an application came before the Board this would be the sign they would be pointing to. L. Ordway expressed sympathy for the business owner, noting that he understood that advertizing was important. He recalled that there had been testimony that the business owner had tried to speak with the management company regarding the landscaping maintenance as well as being able to put a sign on the directory pylon, without success. He suggested that those issues are usually addressed with financial clout, especially in a plaza that isn’t fully occupied.
The Board reviewed the criteria necessary for the granting of a variance with the following findings:
- There could be a decrease in the property value as this sign could be blocking the view of other businesses
- It is contrary to the public interest which is restraining the growth of number of signs and the size of signs
- The hardships presented, the landscaping berm and the elevations of the buildings in relation to Route 125 are manmade hardships
- There would be a loss to the general public with the confusion additional signage beyond what is allowed by current zoning. It was acknowledged that there were a number of freestanding single-business signs but that many were grandfathered or were there legally.
- The application is contrary to the spirit and intent of the ordinance which is to restrain the number of commercial signs. It was also suggested that there is a safety issue with larger number of signs, particularly on Route 125.
There was no further discussion on the motion. The vote was 5-0-0 U/A and the variance was granted.
There was review of a letter that staff had been directed to write to the Planning Board. A few minor suggestions were made. Staff will call L. Ordway for signature when the final copy is ready.
The chairman adjourned the meeting at 8:58 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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