ZONING BOARD OF ADJUSTMENT
April 24, 2008
The meeting was called to order at 7:00 p.m.
Roll Call: Larry Ordway, Chairman; Julie Matthews, Vice Chairman; Robert Loeffler; Peter Bealo and Dan Lloyd, Alternate (arrived 7:10 p.m.).
Minutes of March 27, 2008
P. Bealo moved, second by J. Matthews, to approve the minutes of the March 27, 2008, meeting. The vote was 4-0-0 U/A.
L. Ordway noted the there were only four members present on the Board and he noted what the significance of a decision where there was less than 3 affirmative votes to the motion. The applicants were advised that they could request a continuance until such time that there was a five-member board. It was noted that Dan Lloyd was anticipated to shortly arrive at which time there would be five voting members again.
#08-03: A request from Paul Narkus, for a special exception under Article VIII, all sections, to permit an in-law apartment. The property is located at 60 Main Street, Tax Map 38, Lot 93 in the CII district.
Paul Narkus, 60 Main Street, was present for the application. He explained that he would like to convert the second floor of his 2,000 sq. ft. home to an in-law apartment for his mother, who is currently staying with his sister in Lawrence, MA.
L. Ordway asked if Mr. Narkus’ mother would be a full time resident.
P. Narkus replied that it would depend on how it goes. He added that his sister is a nurse and is better qualified to take her to doctor’s appointments and the like.
The Board reviewed the criteria for the granting of a special exception for an in-law apartment noting the following:
- The appearance of a single-family dwelling would be maintain and the entrance for the in-law apartment would be on the side of the building
- The dwelling it not a mobile home or a condo unit
- The size of the in-law apartment is approximately 500 sq. ft.
- Mr. Narkus has owned the property since 1990
- There will be one bedroom
- Mr. Narkus’ mother will be the resident with occasional visits from his sister
- The unit will never be converted to a separate form of ownership
- A new septic design has been submitted to and approved by the State of New Hampshire
- Floor plan for the in-law apartment was submitted with the application
- There is adequate parking
- All utilities will remain on the existing house meters and can never be separated off
- If the property is sold the special exception for the in-law apartment ceases and any new owner would be required to obtain their own special exception
It was noted that as Mr. Narkus is permitted to rent the unit on the occasion that his mother is no longer living there, but once it the property is sold the special exception ceases. It was further noted that it was the fact that it was only one-bedroom and that all utilities were connected to the single-family dwelling that limited it as a rental unit.
D. Lloyd arrives at 7:10 p.m. (It was noted that D. Lloyd would not be part of deciding this matter.)
R. Loeffler noted that there were currently two bedrooms located on the second floor. He asked what would be happening with those.
P. Narkus replied that they were being relocated to other parts of the dwelling.
L. Ordway asked if there were any other questions from the Board, there were none. He asked if anyone wished to speak in favor or in opposition to the plan. There was no one and the hearing was closed
#08-04: A request from Catherine O’Brien, for a special exception under Article X, all sections, to permit a home occupation, namely as A Mary Kay Cosmetics business. The property is located 120 Newton Road, Unit 7C, Tax Map 69, Lot 49--27 in the ICR district.
Catherine O’Brien, 120 Newton Road, Unit 7C, was present for the application. She explained that she would be purchasing product from Mary Kay for resale. Ms. O’Brien noted that all her sales would be at home parties, open houses and skin care classes.
L. Ordway asked if this business would be mostly home parties and not an open store front.
C. O’Brien noted that Mary Kay did not permit straight retail sales.
The Board reviewed the requirements for the granting of a special exception to permit a home occupation under Article X noting the following:
- The applicant qualifies for a home occupation under §220-66A – Consultant
- There would be no used considered noxious or injurious
- Ms. O’Brien has owned the property for seven years prior to starting the business
- The office space occupies +/- 1% of the dwelling unit
- There will be no exterior storage
- Mary Kay does not allow for exterior signage
- Ms. O’Brien is the only employee
- There will be no outside display
- There is no need for off-street customer parking as there will be no customers to at the home
- There is nothing in the deed that precludes a home occupation
- A letter of authorization from the condo association was submitted as part of the application along with a copy of the condo documents
R. Loeffler asked how the product will be shipped to Ms. O’Brien.
C. O’Brien replied that deliveries were made to her via UPS.
R. Loeffler questioned if this would be a full or part time operation.
C. O’Brien answered that it was currently a part time business and that she didn’t anticipate more than two deliveries a month.
P. Bealo noted that it wouldn’t be a violation if there were more than two deliveries a month.
L. Ordway asked if there were any other questions from the Board, there were none. He asked if anyone wished to speak in favor or in opposition to the plan. There was no one and the hearing was closed
It was noted for the record that Ms. O’Brien had questioned whether or not the condo association was notified. It was noted that the legal notice for the condo association was signed for by a Gerard Duquette.
#08-05: A request from Patricia Bennett, for a variance from Article IX, §220-63 to permit a roof sign. The property is located at 3 Garden Road, Tax Map 25, Lot 28 in the CI district. The owner of record is Bennett Family Realty Trust.
Patricia Bennett, property owner 3 Garden Road, was present for the application. She explained that she would like to put a sign on the roof of her commercial building at 3 Garden Road. Ms. Bennett noted that she would like to reuse the sign that is currently being used at her location of 9 Plaistow Road, which was also located in the Commercial I District and was not far from the 3 Garden Road location.
P. Bennett distributed pictures that showed examples of other existing roof signs in Plaistow. She offered that allowing her to put up a roof top sign would not be uncharacteristic of the Commercial I District.
It was noted that there was at one time a roof sign for a barbershop (Frank’s Hairlines) in the building.
P. Bennett explained that this would be the new location of her real estate business along with her real estate school.
There was a brief discussion of some of the photo examples that Ms. Bennett had submitted. Some were noted to be mansard signs, which were permitted, and not roof signs. It was also noted that these were examples of grandfathered signs.
R. Loeffler asked what the advantage would be of a roof sign.
P. Bennett noted that the sign she had was very expensive sign and she felt it would look better on the roof as there was no other good place to put it.
L. Ordway suggested that it could be put on the peak over the window.
P. Bennett replied that she didn’t think that would be attractive as it would extend out past the peak on each side.
R. Loeffler asked if the sign is lighted.
P. Bennett answered that it was.
R. Loeffler noted that not many of the roof signs that Ms. Bennett had provided as examples were lighted signs.
L. Ordway offered that despite the fact that roof signs were not permitted there were plenty of them around town. He said that he understood why Ms. Bennett would like to save money by reusing the sign, but he didn’t see why with some carpentry it wouldn’t fit on the peak over the window, which he felt would look better than sticking the sign on the roof.
There was discussion regarding potential alternatives to putting the sign on the roof, including on the peak over the window and off-center attached to the building.
P. Bennett reiterated that both locations (3 Garden Road and 9 Plaistow Road) were in the Commercial I location and were in close proximity to each other and it would be within the character with other commercial buildings.
J. Matthews asked if Ms. Bennett would be using the right side of the building.
P. Bennett said that she wouldn’t be using the room, but would be using the entrance.
L. Ordway asked if there were any other questions from the Board, there were none. He asked if anyone wished to speak in favor or in opposition to the plan. There was no one and the hearing was closed
#08-02: ~A request from Barlo Signs, for Baron’s, for a variance from Article IX, §220-61F, to permit the installation of an electronic changeable copy sign. ~The property is located at 12 Plaistow Road, Tax Map 24, Lot 31 in the CI district. ~~The owner of record is Raymond N. Baron.
Randy Bartlett, Barlo Signs, was present for the application. He started by explained that he understood that some electronic signs, such as the one at Mortgage Specialist, had been abrasive to the Town and he added that he had respect for the intent of the Town’s by-laws. Mr. Bartlett related experiences that he has in other towns that he had worked in such as Gilford and Laconia, New Hampshire helping them to incorporate electronic signage. He offered that he had driven around the town and noted the commercial district, where he found examples of signage all over the town, including 20 flags at one of the car dealerships, which he said created more action that this proposed electronic sign, which would change every five minutes and become static for those five minutes.
R. Bartlett explained the mechanics of the signs, which is LED and does not flash or scroll. He offered that digital signage is a misnomer and even a print taken with a digital camera and made into a sign could be considered a digital sign. Mr. Bartlett noted that the sign would not be in the residential district, there was a lot of neon in the Commercial district with lots of action. He added that they were not looking for anything on the scale of the Mortgage Specialist sign.
R. Bartlett asked the Board to keep in mind that this was the wave of the future in signage and was happening all over the country. He noted that gas pricing signs would soon all be LED lights and would be electronically changed. R. Bartlett noted that the State of NH uses a digital changing road-side sign in its construction areas, including those in Plaistow. He noted that many states now had digital signs to post “Amber Alerts.” R. Bartlett related other examples of where digital and electronic signs were being used to illustrate his point that this was the coming wave in advertising. He suggested that when larger chains come to a town it’s the local businesses that suffer and having this type of signage available to them would even the advertising playing field for them. He added that being
able to electronically change a sign to show what specials are available would allow them to catch the impulse buyer. Mr. Bartlett noted that the median in front of the business added an extra impediment to sales for the business. R. Bartlett noted that the business was prepared to submit an agreement with the Town in which they would pledge to not change the message on the sign any more than every 5 minutes.
R. Loeffler asked if the same message would fade in and out every five minutes or if the message would be different.
R. Bartlett explained that it would be up to the customer, but it was his advice that there are not too many different messages, as that becomes ineffective. He suggested that the Board not take a vote at this meeting, but take the time to think about it and decide at a future date.
There was discussion regarding decision procedures.
R. Bartlett asked the Board to consider the advantage that the larger chains have over the smaller local stores.
P. Bealo, noting that Mr. Bartlett had made that point a number of times, offered that he always tried to patronize the local businesses first and that even the bigger chains would be treated the same with regard to their signage.
R. Bartlett recognized that this board would give equally treatment, adding that the larger chains had other means of advertising available to them.
P. Bealo suggested that it was a slippery slope and there would be other businesses coming in to get these signs. He expressed additional concern regarding how the time limits on the sign would be enforced and if the Building Inspector would have to carry a stopwatch to monitor the changing of the sign.
R. Bartlett offered that adherence to the signed agreements regarding the time the message changed was not a problem in other towns he dealt with. He added that this was designed for retail businesses and was an effective way to deliver a message, not scrolling, like the sign at PetroKing.
L. Ordway asked what the difference was between the digital and LED signage was.
R. Bartlett noted that a digital sign could be a digital picture taken and mounted as a sign.
P. Bealo expressed that he wouldn’t consider a digital image mounted on a Mylar and posted as a sign as a digital sign.
R. Bartlett suggested that it was open to broad interpretation.
P. Bealo offered that he considered the ability to change the message under computer control would make this a digital sign.
R. Bartlett offered the following answers to the criteria for granting of a variance:
- It would not be detrimental to the surrounding businesses and would bring life to the district
- Would not be detrimental to the Public Interest as people would benefit from knowing when there was a special and this technology would provide and advanced way do that
- There is a unique setting of the property in that there is the median strip going up Route 125, he added that a motorist would see the advertised special on the sign and would seek out the flyer once they got home
P. Bealo offered that he disagreed that this was a unique situation as there were many stores along Route 125 in the same predicament.
R. Bartlett said that the entire strip did not have a median that inhibited left/right turns on impulse.
- A complete ban of all digital signs unfairly restricts Baron’s ability to advertise
- This sign would be an updated version of the hand changeable reader board and would so there would be substantial justice in the granting of the variance. If the variance is not granted the only choice would be to erect the old reader board
L. Ordway asked if he heard a threat in stating that the reader board would be erected.
R. Bartlett said that he was not threatening but that it would be sad if they had no choice but to put up the reader board. He added that Baron’s was the guinea pig for the hundreds yet to come. He questioned what the town would do once all the gas stations started using the changeable numbers for gas pricing.
L. Ordway asked what the price of the proposed sign was.
R. Bartlett noted that the amber gas pricing signs could ring between $10,000.00 and $40,000.00 and digital signs could start from $20,000.00 and go up as far as in the millions. “The sky is the limit.”
L. Ordway offered that was part of the problem with signage, the town allows 200 sq ft. they get applications for 300 sq. ft.
R. Bartlett suggested that one way to stop that would be to restrict the signs so that no more than 50% of any sign can be digital.
L. Ordway reminded that Baron’s has been in for signage applications before.
R. Bartlett noted that he was aware of that case and added that this sign was not larger than the allowable.
D. Lloyd asked if the sign would only be operational during business hours.
R. Bartlett offered that the sign could be shut off at 11:00 p.m.
R. Loeffler asked if there was a difference in operational costs of the new sign versus and existing sign.
R. Bartlett said that it would be 30% to 40% higher to operate the sign.
D. Lloyd asked if there would be colored letters.
R. Bartlett replied that the sign had the potential for multi-colors.
L. Ordway asked if there were any other questions from the Board, there were none. He asked if anyone wished to speak in favor or in opposition to the plan. There was no one and the hearing was closed
The chairman called for a break at 8:05 p.m. The meeting was called back to order at 8:12 p.m.
DELIBERATIONS
D. Lloyd was appointed as a voting member.
#08-03: A request from Paul Narkus, for a special exception under Article VIII, all sections, to permit an in-law apartment. The property is located at 60 Main Street, Tax Map 38, Lot 93 in the CII district.
R. Loeffler moved, second by J. Matthews, to approve he request for a special exception from Article VIII to permit an in-law apartment at 60 Main Street.
L. Ordway recapped the evidence submitted as part of the application. He noted that it was a cut and dried application, nothing out of the ordinary. There was a septic plan submitted; utilities would remain on one meter; entrance will be by a side door.
There was no further discussion on the motion. The vote was 4-0-1 (Lloyd abstaining).
#08-04: A request from Catherine O’Brien, for a special exception under Article X, all sections, to permit a home occupation, namely as A Mary Kay Cosmetics business. The property is located 120 Newton Road, Unit 7C, Tax Map 69, Lot 49--27 in the ICR district.
P. Bealo moved, second by R. Loeffler, to approve he request for a special exception from Article X to permit a home occupation for a Mary Kay Cosmetics business at 120 Newton Road, Unit 7C.
L. Ordway recapped the evidence presented as part of the application. He noted that this was a classic home occupation application. There were many things that Mary Kay doe not allow their consultants to do; there would not be a sign; all deliveries would be consistent with what would be normal for a residential use.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#08-05: A request from Patricia Bennett, for a variance from Article IX, §220-63 to permit a roof sign. The property is located at 3 Garden Road, Tax Map 25, Lot 28 in the CI district. The owner of record is Bennett Family Realty Trust.
J. Matthews moved, second by P. Bealo, to grant the request for a variance to permit a roof sign at 3 Garden Road.
L. Ordway offered that he was surprised to see the number of roof signs that there were around town.
R. Loeffler said that he didn’t see the advantage of a roof sign as it still won’t be seen from Route 125.
J. Matthews noted that it might be seen from Chandler Ave.
R. Loeffler added that he had driven down Garden Road and there are no other roof signs and there would be just as much exposure from a free standing sign. He noted that if the sign was reconfigured and put on the façade it might not be as tacky as on the roof.
L. Ordway noted that this application was as much to save the expense of a new sign as it was to gain exposure.
The Board reviewed the criteria for the granting of a variance with the following findings:
- Granting the variance would not diminish the value of the surround properties as this is already a commercial area
- It could be considered in the public’s interest to better identify the business from the street
R. Loeffler noted that he didn’t see what made it better seen from the street.
P. Bealo said that he didn’t see that alternatives were presented to prove that a roof sign was the best option.
L. Ordway noted that this was presented as a use variance.
R. Loeffler reminded that a variance does go with the property forever.
P. Bealo questioned why roof signs were prohibited.
L. Ordway suggested it made have had something to do with the wind factor or perhaps with the increase in the height of a sign that was on a roof past the twenty-five foot limitation of a free standing sign.
P. Bealo noted that some small changes to the front of the building would allow the sign to be almost as high as the roof and be allowed.
J. Matthews added that she didn’t want to see Plaistow turning into a Salem or Las Vegas.
D. Lloyd offered that they could lose the peak on the front of the building and add an awning and it would look very nice.
L. Ordway noted the application was predicated on being able to use the existing sign.
There was no further discussion on the motion. The vote was 0-5-0 and the motion was defeated.
The reasons for denial of the variance were stated to be:
- Contrary to the spirit and intent of the ordinance
- There is no hardship in the land, it is not a unique setting
- There are other alternatives available for signage other than on the roof
- Re-use of the expensive sign cannot be considered as a hardship for granting the variance
#08-02: ~A request from Barlo Signs, for Baron’s, for a variance from Article IX, §220-61F, to permit the installation of an electronic changeable copy sign. ~The property is located at 12 Plaistow Road, Tax Map 24,~Lot 31 in the CI district. ~~The owner of record is Raymond N. Baron.
P. Bealo moved, second by R. Loeffler, to grant the request for a variance to permit a electronic changeable copy sign at 12 Plaistow Road.
L. Ordway offered that the issue with this matter is that digital signs are not permitted by ordinance. It was explained to be the wave of the future. The digital nature of the sign would allow it to be changed every five (5) minutes and would be a lesser intrusive digital sign. He noted a CVS sign in Haverhill with moveable messages and offered that his eyes were drawn to it enough to make him remember it. L. Ordway suggested that was not the intent of the ordinance and granting a variance for one would open a Pandora’s Box. He suggested that if businesses wanted the Town to consider digital signage then they should petition the Planning Board for an ordinance change.
P. Bealo noted that they may well be the wave of the future but that didn’t mean that every town had to allow them. He pointed to Freeport ME where even McDonald’s had to comply with their ordinance and were not allowed to put up their “golden arches.” P. Bealo added that the base sign was pretty innocuous but would be capable of so much more and there was an enforcement concern. He said that he didn’t want to set the Building Inspector up to have to be out timing sign changes. P. Bealo also noted there was a State Supreme Court case (Naser Jewelers v. City of Concord, NH) where bans on digital signage were upheld.
The Board reviewed the criteria for the granting of a variance with the following findings:
- There would be no diminishment of the surrounding property values this is all a commercial area
- It could be said that there is a public interest benefit in being able to find a destination
P. Bealo suggested that any sign that varies and changes is a road hazard and therefore not in the public’s interest
R. Loeffler offered that the clown at the local Dunkin Donuts over the weekend was also a traffic hazard.
- The location is a busy street and could benefit from a electronic copy change sign
J. Matthews reminded that the whole section of the street was had the same issue.
D. Lloyd asked what would prevent White Street Paints from coming in and asking for a digital sign.
R. Loeffler questioned if that would be a bad thing.
J. Matthews replied that she thought it would be.
R. Loeffler added that with the number of empty storefronts along Route 125 it might not be a bad thing to permit this type of signage.
There was a brief discussion about why there were empty store fronts along Route 125.
L. Ordway stated that he didn’t think it was because they couldn’t have digital signage but had more to do with the high price of real estate and the lack of mid-sized businesses to fill these types of units.
D. Lloyd offered that Baron’s didn’t have any real competition on Route 125.
L. Ordway noted that Home Depot sold appliances.
D. Lloyd replied that it wasn’t their main sales thrust. He added that buying appliances wasn’t an impulse buy as suggested by Mr. Bartlett. He said that when people are shopping for high ticket items they do there homework, shop around, investigate online.
- Substantial Justice, the applicant stated that the ordinance unfairly restricts Baron’s ability to advertise
P. Bealo reiterated the recent court decisions had upheld a Town’s ability to not allow a certain type of sign and some have tried to restrict certain color, such as no red or blue lights that could be confused with emergency vehicles and flashing lights that could cause epileptic seizures, but not the content of the sign. He noted that they could also petition the Town to consider changing the zoning.
L. Ordway added that it was not unfair for Baron’s to have the same sign as was allowed for every other business. There was no discrimination.
- The application is contrary to the spirit and intent of the ordinance even though the proposal if for a minimally invasive electronic sign. It’s the rate of change that becomes the issue.
R. Loeffler asked if these signs would be okay if they were changed only once a month.
L. Ordway questioned who would be responsible for enforcing the rate of change for the message.
D. Lloyd added it would not be worth the expense of the sign to only have it change once a month.
There was no further discussion on the motion. The vote was 0-5-0 and the motion was defeated.
The reasons for denial of the variance were stated to be:
- Contrary to the spirit and intent of the ordinance
- There is no hardship in the land, it is not a unique setting
- Granting the variance was not in the public interest as a electronically changing sign is a traffic distraction
It was also noted that this decision is consistent with other decisions made by this Board such as the application by Westville Motors on Blossom Road.
The chairman adjourned the meeting at 8:47 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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