ZONING BOARD OF ADJUSTMENT
December 4, 2008
The meeting was called to order at 7:00 p.m.
Roll Call: Present were Larry Ordway, Chairman; Julie Matthews, Vice-Chairman; Robert Loeffler; Roderic Cole, Alternate; Dan Lloyd (arrived 7:18 p.m.), Alternate; and Paul Boniface, Alternate. Peter Bealo and Cliff Clark were excused.
R. Cole was appointed as voting member for this meeting in place of P. Bealo.
Minutes of October 30, 2008
R. Loeffler moved, second by R. Cole, to approve the minutes of the October 30, 2008, meeting. There was no discussion and the vote was 2-0-2 (Ordway and Matthews abstaining).
Paul Boniface was introduced as a new alternate for the Board.
L. Ordway noted there were only four (4) voting members at this meeting and noted the significance that a tie vote would have to defeat any motion. He added that a fifth member was expected shortly and all applicants would be given the opportunity to continue their hearing until there was a five (5) member board present to hear their application.
#08-33: A request from Foods Plus for a variance from Article IX, § 220-59A to permit a 105 sq. ft sign, which is greater than 10% of the building façade, which is the maximum allowed. The property located at 5 Plaistow Road, Tax Map 24, Lot 38 in the CI district. The owner of record is Taurus Plaistow Investments Limited.
Norman Dalphond, Foods Plus, 5 Plaistow Road, and Mark Casey, Sign-A-Rama, were present for the application.
L. Ordway noted that the application showed that 44.1 sq. ft. would be the allowable-sized sign for this building façade and asked why the applicant was requesting 2½ times that dimension.
N. Dalphond replied that it would offer better visibility for his business and offered that following supporting information for the variance application:
- The proposed sign would not diminish the surrounding property values as there were other awning signs in the plaza of similar size and character. It would also give a fresh new look to the plaza
There was discussion of the size of other awning signs in the plaza.
- The larger sign would be beneficial to the public interest as it would show what the store is about now, not as it was when it first opened when there was a deli in the store
- The height and size of the sign would make it more noticeable from the street over the landscaping, which was not there at the size it is now, when the store first opened
- The sign displays what wares are available in the store at this time and will be more visible from the street and when there are cars in the lot that obscure the window signage
- There would be justice in that this would not be the only oversized sign in the plaza and this sign would be in keeping with the character of those other signs
There was further discussion about the size of the other signs in the plaza, including Lens Doctor, Dollar Tree and Petco.
N. Dalphond added that he was trying to be proactive in these tough economic times.
D. Lloyd arrived at 7:18 p.m.
M. Casey offered that Foods Plus was at a disadvantage over the larger chain stores in the plaza that had national logo recognition and branding which gave them nearly instant name recognition. He added that a smaller home town business, like Food’s Plus, needed something more to draw the eye.
L. Ordway asked why Food’s Plus would choose to share their limited exposure with Coke and Marlboro but putting their logos on the sign.
N. Dalphond explained that they were recognized national brand names and leaders in their own industries and gave people the idea of what is available in the store.
L. Ordway suggested that if the Coke and Marlboro logos were not there it would bring the sign closer to compliance.
N. Dalphond responded that taking away the name-brand logos would lose the national recognition they were seeking.
L. Ordway offered that they ran the risk of not being approved for a sign that was 2½ times larger than the allowable when there was a reasonable alternative available.
R. Loeffler asked if Coke and Marlboro were contributing to paying for the sign.
N. Dalphond said they were not, but it was their logos that gave the needed recognition.
R. Loeffler questioned if there was any flexibility in this application, or was it this sign or nothing.
There was discussion about moving the logos in closer to the “Food’s Plus” name, which was noted to make the sign 20 to 30 sq ft (approximately 75 sq. ft) smaller than this proposal.
- The application is not contrary to the spirit and intent of the ordinance because it would give the plaza and fresh new look and would upgrade it for the Town. It’s not proportionally bigger than the Lens Doctors sign. The awning would take up the entire building façade and give a fresh new professional appearance to the building, while letting shoppers know who they are, attracting their business. It was offered that there are many store fronts being vacated in the CI (Commercial I) district and that it was in the Town’s best interests to assist the remaining businesses. It was further noted that the existing landscaping did hinder visibility unlike any other plaza.
N. Dalphond offered that the roadway (Route 125) slopes down and the roofline of the building keeps stepping down to follow the decline of the road. He added that the landscaping was cute little trees when they were first planted but then grew and filled in, blocking their visibility.
R. Loeffler asked what the awning would be made of.
M. Casey replied that it would be a vinyl material, same as Blockbuster and Lens Doctor.
R. Loeffler asked how far out it would extend.
M. Casey said that it would about 36 inches and within the side walk width.
L. Ordway asked if there would be lights in the awning.
N. Dalphond answered that there are lights now and would be for the new sign and the lights are on a timer.
L. Ordway inquired what the hours of operation for the store are.
N. Dalphond replied they were open at 7:00 a.m. daily, closing at 10:00 p.m. Sunday through Thursday and at 11:00 p.m. Friday and Saturday.
L. Ordway asked if the applicant would agree to move the Coke and Marlboro logos in closer to decrease the size of the sign.
N. Dalphond replied that he would be fine with doing that.
L. Ordway asked if the Board had any questions, 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.
L. Ordway explained that there was now a five-member board present and appointed D. Lloyd as a voting member in place of C. Clark.
L. Ordway added that all the applications would be heard in order, there would be a short break and then the Board would deliberate each matter. L. Ordway noted that once a case was closed there would be no further input.
#08-34: A request from Mark Biladeau & Shawn Flanders, R&D Fireplace and Pool Center, for a variance from Article III, §220-16D, to permit a retail business, not related to automobile sales, on the same lot as a retail auto sales business. The property is located at 195 Plaistow Road, Tax Map 44, Lot 19, in the CI district. The owner of record is Chaya Brothers Realty Plaistow NH.
Mark Biladeau was present for the application. He explained that looking to locate his fireplace shop at this location as it offered him the opportunity to display his product in a way that was optimal and game him good exposure to Massachusetts and New Hampshire customers. Mr. Biladeau noted that there was a permit there for an existing motor vehicle dealership, which did not allow for un-related retail uses by the ordinance, which is why he was before the Board.
M. Biladeau submitted pictures of the location, including the interior of the building where he would stage rooms to showcase his fireplace products.
M. Biladeau offered the following evidence in support of his variance application:
- The application will not diminish surrounding property values as the building being empty takes away from the value of the area, there are no perspective auto-related businesses tenants and having a business located here will mean that the building and landscaping will be maintained and more lighting will be added to the area increasing the security of the area. Having another open business could also be a draw for the area
- It would be in the public’s interest to have competitive business, fireplaces, stoves (both gas and pellet), above ground pools and accessories, occupy a now vacant space, improving the area and providing additional lighting. There will also be and opportunity for more jobs, particularly for high school graduates.
D. Lloyd asked if they would also have grills in the summer time.
M. Biladeau replied that they would.
- This is a unique setting in that 2/3 of the structure is a three-bedroom home and a showroom, which is not all that suitable for motor-vehicle sales.
M. Biladeau reiterated that he would like to use the rooms of the house part of the building to display his merchandise in a setting that would better depict how it would fit into a home. He added that he understood that auto dealers have traffic running around the business that could potentially put customers in harm’s way, but he felt he would be able to have parking and displays in such a way as to insure customer security, therefore supporting the nature of the ordinance.
- The nature of the retail business is not injurious to others as something such as a manufacturing business might be
- There would be substantial justice in allowing the property owner to secure a tenant in the now vacant building, as well as provide the public with another retail option and another open business open for the security of the area
- The application is not contrary to the spirit and intent of the ordinance, which is assumed to be public safety on parcels with motor vehicle dealerships, as the retail location will be restricted from the auto sales area
Examples of Asia Auto and the Hot Tub Shop (Danville Road) were offered as to where other retail ventures combined with motor vehicle dealerships.
D. Lloyd asked if it was intended for the curb cuts to Route 125 to be the same.
Elias Chaya, property owner, offered that it was his intention to keep all those features the same and eventually operate the motor vehicle sales again. He added that what made this property so difficult to rent for so long was the Route 125 construction. Mr. Chaya added that of the 3600 sq ft of the building, only 1400 sq. ft. was dedicated to the motor vehicle sales.
L. Ordway asked if there was a motor vehicle dealer currently at this location.
Staff confirmed that there was a valid certificate of occupancy for a motor vehicle dealer at 195 Plaistow Road.
There was a brief discussion regarding potential traffic flow patterns and signage. It was noted that details of the layout of the property would be under the purview of the Planning Board.
L. Ordway asked if the Board had any questions, 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.
#08-35: A request from Barlo Signs for Bed, Bath & Beyond, for a variance from Article IX, § 220-59A to permit a 400 sq. ft sign, which is greater than 10% of the building façade, which is the maximum allowed. The property located at 58 Plaistow Road, Tax Map 26, Lot 1 in the CI district. The owner of record is LDVFII Plaistow, LLC.
Timothy Sullivan, Barlo Signs, was present for the application. He explained that this business was located up on a hill and was set back from Route 125, meaning the only real visibility was if one is traveling south to north on Route 125. Mr. Sullivan added that Bed, Bath and Beyond took pride in their attractive, classy, un-box like store fronts, unlike Staples and Home Depot who draw attention with their bright red and orange colors. He noted this storefront included a lot of glass which didn’t offer them a large façade on which to calculate for a larger sign.
L. Ordway asked Mr. Sullivan to show the Board exactly where the roofline to foundation calculations were determined as the diagram provided was not clear. He suggested that Mr. Sullivan may wish to request a continuance in order to provide the Board with clearer evidence as to how the calculations were derived and insure that any false facades or parapets are not included in those calculations.
T. Sullivan requested that the Board continue this application in order to provide the Board with the requested information.
J. Matthews moved, second by L. Ordway, to grant the request for continuance for case #08-35. There was no discussion on the motion. The vote was 5-0-0 U/A,
#08-36: A request from Robert J. Heil for a special exception under Article X, all sections, to permit a home occupation, namely an office for a painting business. The property is located at 11 Davis Park, Tax Map 40, Lot 62, in the MDR district. The owners of record are Robert J. and Anna K. Heil.
Robert Heil, 11 Davis Park was present for the application. He explained that he would just like to have an office in his home for his business.
L. Ordway asked if this was intended to be an office only.
R. Heil replied that he was not making a request for any storage at this time.
The Board reviewed the criteria for the granting of a special exception with the following evidence:
- The business use would be secondary to the residential use of the property
- The business is permitted under §220-66C
- There are no noxious uses by way of noise, odor, dust, fumes or electrical fluctuations, painting equipment is not to be cleaned on the property
- The use of the building has always been residential, Mr. Heil purchased the property in 2001 and while he has been painting for approximately 20 years, the business was never his primary employment
- The business will be conducted within the residential dwelling using +/- 3% of the living space
- There will be no indoor storage of paints. There are a few ladders, which the applicant already owns, and there is no staging
- The business will not change the residential character of the dwelling
- There is no current request for a sign, but the applicant is allowed up to three (3) sq. ft.
- Mr. Heil will be the only employee (Mrs. Heil occasionally does some bookkeeping for the business)
- There will be no exterior merchandize displays
- There is sufficient off-street parking, no customers come to the home
- There would be no storage of flammable materials in the home
- There are no covenants in the deed that would prevent there from being a home occupation
L. Ordway asked if the Board had any questions, 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.
CONTINUED FROM SEPTEMBER 25, 2008 and OCTOBER 30, 2008
#08-29: A request from Town Fair Tire Centers, Inc., for a special exception under Article III, §220-8C, to permit the expansion of a building on a non-conforming lot. The property is located at 42 Plaistow Road, Tax Map 25, Lot 6 in the CI district. The property owner of record is MCM Realty, LLC.
CONTINUED FROM OCTOBER 30, 2008
#08-32: A request from Town Fair Tire Centers, Inc., for a variance Article IV, §220-21A/B, to permit the continuance of pavement, building, existing disturbance within the no-cut, no disturb buffer and twenty-five (25) foot/fifty (50) foot no construction buffer. Also to allow for reclaiming of existing pavement, drainage and general site improvement of approximately 400 more sq. ft. of proposed building with the aforementioned areas. The property is located at 42 Plaistow Road, Tax Map 25, Lot 6 in the CI district. The property owner of record is MCM Realty, LLC.
Jennifer Viarengo, Appledore Engineering, Inc., and John Wypychoski, Town Fair Tire, were present for the application.
J. Viarengo gave an overview of the project noting the following:
Non-Conforming Lot:
- 42 Plaistow Road, Midas is to the right and the Market Basket Plaza is to the left and rear
- There are two buildings on the property, it is the rear building that makes the lot non-conforming
- Town Fair Tire would be taking down the existing from 5800 sq. ft. building and proposing a 7100 sq. ft. building, increase the greenspace, provide catch basins and many other improvements, nothing is planned for the rear building at this time
- The rear setback and edge of pavement on the Market Basket side will remain unchanged
- The existing wetlands buffers will remain the same
Wetlands Variance:
- Letter from Conservation Commission (ConCom) supporting the application as it will be an improvement to the wetlands and the drainage on the site
L. Ordway asked if the wetlands were manmade.
J. Viarengo replied that the area is forested and there may be some manmade wetlands overtime. She added that Little River ran through the back as well and she would be making an application for a Shoreland Protection Act permit. Ms. Viarengo offered that the wetlands were already disturbed this would be improving the situation.
R. Loeffler questioned that they would be staying within areas already disturbed.
J. Viarengo answered that they would be, but making improvements.
L. Ordway asked if there would be any issues with meeting setback requirements.
J. Viarengo explained that they would be meeting all setback requirements with the new building.
The following evidence was offered in support of the variance application:
- There would be no decrease in the surrounding property values as this is a commercial property and the improvements will enhance the property and potentially increase values
- Improvements to the drainage and cleaning of the wetlands are in the public interest, Best Management Practices (BMPs) will be employed during construction
- The areas to be disturbed have already been disturbed and the only disturbance will be to improve the situation
- There is substantial justice in allowing the wetlands to be disturbed to improve the drainage and improve the function of the wetlands
- It is in keeping with the spirit of the ordinance since there will be no negative impact to the health, safety and welfare of the community.
A letter of support from the Plaistow ConCom was read into the record.
L. Ordway asked if the Board had any questions, 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.
L. Ordway called for a break in the meeting at 8:30 p.m. The meeting was called back to order at 8:40 p.m.
DELIBERATIONS:
#08-33: A request from Foods Plus for a variance from Article IX, § 220-59A to permit a 105 sq. ft sign, which is greater than 10% of the building façade, which is the maximum allowed. The property located at 5 Plaistow Road, Tax Map 24, Lot 38 in the CI district. The owner of record is Taurus Plaistow Investments Limited.
R. Loeffler moved, second by J. Matthews, to grant a variance for an oversized sign, at the reduced size (~30sq. ft.), as discussed in the hearing, for Food’s Plus at 5 Plaistow Road.
L. Ordway summarized the application noting the following:
- The original application was for a sign of 105 sq. ft., which was amended to approximately 75 sq. ft., by moving the logos in closer to the lettering, as part of the discussion
- There is somewhat of a hardship in the vegetation, required in the Town’s site plan regulations, that inhibits visibility from Route 125
The Board reviewed the criteria for a granting of a variance with the following findings:
- There would be no decrease in the surrounding property values in that this would be in keeping with other signage in the plaza
- The public’s interest is in not having “miles of air filled with signage” and while this is a larger than allowable sign it is not out of character with the concept of the plaza
- Hardship is somewhat being caused by the Town in enforcing the landscaping ordinance and the slope of the land
R. Loeffler asked, noting the Town mandates the landscaping, who was charged with enforcing the maintenance of that landscaping.
It was noted that there is a Commercial/Industrial Property Maintenance Ordinance (§220-17.2) which mandates the maintenance of landscaping of the properties.
- There would be substantial justice to both the individual business as they would gain visibility and the public would be able to easily find the business
- It is not within the spirit and intent of the ordinance to have Las Vegas style lighting up and down Route 125, but since Food’s Plus was willing to compromise and since this will be a sign in keeping with the rest of the plaza and therefore is not contrary
There was no further discussion on the motion. The vote was 4-0-1 (Lloyd abstaining).
#08-34: A request from Mark Biladeau & Shawn Flanders, R&D Fireplace and Pool Center, for a variance from Article III, §220-16D, to permit a retail business, not related to automobile sales, on the same lot as a retail auto sales business. The property is located at 195 Plaistow Road, Tax Map 44, Lot 19, in the CI district. The owner of record is Chaya Brothers Realty Plaistow NH.
R. Cole moved, second by R. Loeffler, to grant the variance to allow a non-automotive related retail business on the same site as a motor vehicle dealer at 195 Plaistow Road.
L. Ordway offered that there was nothing in the ordinance that explained why there was such a restriction so it could only be guessed as to why. He suggested that common sense would be that there are safety concerns with a motor vehicle dealership that assume it to be incompatible with other retail businesses. L. Ordway added that it took away certain rights of the owner for the use of the property.
The Board reviewed the criteria for the granting of a variance with the following findings:
- There will be no decrease in surrounding property values, having an active business in the area should increase the property values
- It’s not clear to this board what would be the public’s interest in not allowing retail with a motor vehicle dealership, but the public would have an interest in a jobs being offered.
- The hardship is that the lot has been vacant for over a year and needs attention. Allowing the owner to get a tenant in there in these economic times benefits the entire community. It would also be rejuvenating a commercial area in town
- The general public will be gaining in the some employment opportunity as well as the business bringing alternate fuel to the area as well
- It is difficult to determine whether or not this is contrary to the spirit and intent of the ordinance, since it is not clear from reading the ordinance why this restriction is being imposed. It is assumed that it has something to do with safety issues. It was noted during the hearing that there would be clear separation between the two business entities. It was further noted there were other places in town where there were combined retail-motor vehicle dealership uses so it wasn’t thought to be contrary to the spirit and intent of the ordinance
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#08-36: A request from Robert J. Heil for a special exception under Article X, all sections, to permit a home occupation, namely an office for a painting business. The property is located at 11 Davis Park, Tax Map 40, Lot 62, in the MDR district. The owners of record are Robert J. and Anna K. Heil.
R. Cole moved, second by D. Lloyd, to grant a special exception for a home occupation at 11 Davis Park.
J. Matthews offered that this was a classic home occupation application.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
CONTINUED FROM SEPTEMBER 25, 2008 and OCTOBER 30, 2008
#08-29: A request from Town Fair Tire Centers, Inc., for a special exception under Article III, §220-8C, to permit the expansion of a building on a non-conforming lot. The property is located at 42 Plaistow Road, Tax Map 25, Lot 6 in the CI district. The property owner of record is MCM Realty, LLC.
J. Matthews moved, second by D. Lloyd, to grant the special exception for the expansion of a building on a non-conforming lot at 42 Plaistow Road.
L. Ordway noted that it was the building in the rear of the parcel that was where the non-conformity is and there were no changes proposed for that part of the property.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
CONTINUED FROM OCTOBER 30, 2008
#08-32: A request from Town Fair Tire Centers, Inc., for a variance Article IV, §220-21A/B, to permit the continuance of pavement, building, existing disturbance within the no-cut, no disturb buffer and twenty-five (25) foot/fifty (50) foot no construction buffer. Also to allow for reclaiming of existing pavement, drainage and general site improvement of approximately 400 more sq. ft. of proposed building with the aforementioned areas. The property is located at 42 Plaistow Road, Tax Map 25, Lot 6 in the CI district. The property owner of record is MCM Realty, LLC.
R. Loeffler moved, second by D. Lloyd, to grant the request for a wetlands variance at 42 Plaistow Road.
L. Ordway summarized the earlier discussion noting the following:
- The area to be disturbed has already been disturbed and the intent it to improve the existing situation
- ConCom has given the application their blessing
- Allowing the variance would allow the project to move forward and would make good use of a commercial property now deteriorating
The Board reviewed the criteria for the granting of a variance with the following findings:
- There would be no decrease to the surrounding property values, enhancing the property would most likely increase property values
- The public has an interest in maintaining the wetlands, this application would only disturb areas that have already been disturbed in an effort to improve drainage and thus further protect the wetlands
- The hardship would be taking away the ability to improve the wetlands and the property and potentially the owner’s use of the property
- Both the individual and the public gain substantial justice by improving the wetlands
- The application is in keeping with the spirit and intent of the ordinance in that improving the drainage will protect and improve the wetlands
There was no further discussion on the motion. The vote was 5-0-0 U/A
D. Voss reported that she had received a letter of resignation from C. Clark.
L. Ordway offered that it was with deep regret that he accepted the resignation of Mr. Clark.
There was no other business before the Board and the meeting was adjourned at 9:09 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
| 
