Town of Plaistow Archive - ZBA Minutes 01-08-09

ZBA Minutes 01-08-09

ZONING BOARD OF ADJUSTMENT

January 8, 2009

The meeting was called to order at 7:02 p.m.

Roll Call: Present were Larry Ordway, Chairman; Julie Matthews, Vice-Chairman; Robert Loeffler; Peter Bealo; Roderic Cole, Alternate; Dan Lloyd (arrived 7:05 p.m.), Alternate; and Paul Boniface, Alternate.

R. Cole was appointed as voting member for this meeting.

Minutes of December 04, 2008

J. Matthews moved, second by L. Ordway, to approve the minutes of the December 4, 2008, meeting. There was no discussion and the vote was 4-0-1 (Bealo abstaining).

D. Lloyd arrived at 7:05 p.m.

#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.

A request from Barlo Signs to withdraw this application was read for the record.

R. Loeffler moved, second by J. Matthews, to grant the request from Barlo Signs to withdraw application #08-35. There was no discussion on the motion. The vote was 5-0-0 U/A.

New Town Manager, Sean Fitzgerald, was introduced to the Board. He offered that he would like to have the opportunity in the near future to get together with the Board and talk about his vision for the town.

#08-37: A request from Ronald Brown Investments/Sweet Hill Investments, LLC, and in accordance with Court Order in the case of Ronald Brown Investments v. Plaistow Planning Board, Rockingham Superior Court, Docket No. 08-E-0036 for appeal of the administrative decision of the Plaistow Planning Board on January 7, 2008 in its application of the ZBA instruction regarding the deduction of units in the since repealed Article VII §220-55 (Elderly Housing Ordinance). Alleged are erroneous violations of NHRSA 676:4 and 676:12 and due process. Mr. Brown is the owner of the property located at 62/64 Sweet Hill Road, Tax Map 62, Lots 40 and Lot 41-1 through Lot 41-15

P. Bealo, noting that he now served on both the Planning Board and this board, offered to recuse himself from this matter.

L. Ordway accepted P. Bealo recusal.

P. Bealo left the table and was seated in the audience.

D. Lloyd was appointed as a voting members for all discussion, deliberation and voting in this matter.

Thomas MacMillan, MacMillan Law Offices, 145 South Main Street, Bradford, and Ron Brown, Ronald Brown Investments/Sweet Hill Investments, LLC, were present for the application.

L. Ordway noted for all present that it was his understanding that it was an order of the New Hampshire Superior Court (Court) that brought this matter, decided by the Board over one year ago, to reconsider the matter of the Board of Selectmen’s (BOS) appeal of the administrative decision of the Planning Board (PB). He noted that there was to be no discussion about any specific property.

T. MacMillan offered that the Court’s decision does ask the Board to reconsider their decision about how units are deducted from the unit cap of the (since repealed) Elderly Housing Ordinance. He explained that Mr. Brown filed a number of applications with the PB. After the ZBA’s decision regarding the BOS’s appeal of the PB’s decision, Mr. Brown was sent a letter (copy presented as evidence) from the Planning Office that noted, based on the ZBA decision, there were five applications (two of which were Mr. Brown’s) with a specific order and a specific number of lots available to each applicant, based upon the order of receipt of the specific applications. Mr. MacMillan offered that the second application from Mr. Brown, despite being filed on May 16, 2007, prior to the BOS’s filing with the ZBA on May 23, 2007, was not allowed to proceed, even after other projects ahead of it line were eliminated from the process, because under the ZBA’s decision as to when the units were to be deducted from the unit cap, exceeded that cap. Attorney MacMillan further noted that the BOS failed to list Mr. Brown as an interested applicant and therefore he was not notified for the original hearing.

L. Ordway asked why Mr. Brown should have been notified.

T. MacMillan replied because Mr. Brown is a land owner who would have been impacted by the Board’s decision.

T. MacMillan noted the letter from PB Attorney, Craig Donais, which supported his applicant’s position that all applicants are entitled to preliminary and design review without anything being considered as final approval. He added that it was his client’s position that he should not have been precluded from having his plan move forward with in the PB review process.

L. Ordway interrupted, noting the discussion was getting far of field of the ZBA decision.

T. MacMillan noted that but strictly adhering to the ZBA’s decision was in violation of NHRSA 676:4 and 676:12. He added that the Harriman Road plan, one place ahead of the second R. Brown application, never filed for a final approval, making those 132 units, under the ZBA decision, unavailable to other applicants such as Mr. Brown. T. MacMillan offered that it was there request that the Board vacate their former decision.

L. Ordway noted that the number of units was not going to be decided by this board but by the PB.

L. Ordway asked if the Board had any additional questions. There were none.

L. Ordway asked of there was anyone speaking in favor of the application.

Tim Moore, Planning Board Chairman, offered that the Planning Board’s position, as stated in their counsel’s (Craig Donais) letter of October 19, 2007, (which supports the position stated by this current applicant) was unchanged as to when the units should be calculated and deducted from the cap.

L. Ordway asked if there was anyone speaking in opposition to the application.

Dennis Donovan, 39 Greenfield Drive, and representing the Greenfield Homeowner’s Association (GHA) noted there had been a letter submitted by their attorney (Sharon Cuddy-Somers) which represented their position and that remained unchanged.

L. Ordway closed the hearing.

L. Ordway explained the process for the meeting, noting that the Board would hear all applications, take a short break and then conduct their deliberations. He noted that once a hearing is closed there can be no additional public input in that matter.

P. Bealo asked if people would have the right to appeal the Board’s decision, despite the fact that this matter was sent by the Court.

L. Ordway noted that all regular procedures applied.

#08-38: A request from Bed, Bath & Beyond, for a variance from Article IX, § 220-59A to permit 2 signs, totaling 221.8 sq. ft., which is greater than 10% of the building façade, said to be calculated at 178 sq. ft. 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.

P. Bealo returned to the table for this matter. D. Lloyd was not a voting member for this matter.

Jennifer Viarengo, Appledore Engineers, Inc., representing Bed, Bath & Beyond, was present for the application.

J. Viarengo reminded that the original application, made by other representation, was for a 400 sq. ft. sign, not the 221.8 sq. ft. that they were now requesting.

L. Ordway questioned why this was being considered as two signs.

J. Viarengo replied that was how she was told by the Building Department that she could calculate the sign since there was such a space between the lines of lettering.

L. Ordway noted that calculating the sign that way would be asking the Board to allow that 256 sq. ft. of building façade be covered by signage. He suggested that since the name of the business was “Bed, Bath & Beyond” it didn’t make sense to calculate the lettering that make up the full title as two separate signs simply because they occupied two lines of text.

P. Bealo added that the drawings showed the power supply was shared for both lines of the sign.

L. Ordway offered Ms. Viarengo a few minutes to recalculate her sign or to request a postponement to discuss the matter with her client.

J. Viarengo noted that even considering this to be a single sign of 256 sq. ft. it was far less than the 400 sq. ft. initially requested.

L. Ordway suggested the larger the sign was the less likely it would be that he would be able to vote in favor of it.

There was a brief discussion about how the sign could be modified.

J. Viarengo offered that the sign could be modified to a single sign to measure 7’ X 28’ for a total of 196 sq. ft.

L. Ordway noted that he would probably nit be in favor of a 256 sq. ft. sign, he could perhaps be agreeable to a 221 sq. ft. (single) sign, and he thought the chances were pretty good with a 196 sq. ft. sign.

J. Viarengo asked if the Board would be amenable to allowing Bed, Bath & Beyond, at their own risk, to erect the sign prior to the expiration of the thirty (30) day appeal period, with the understanding that should an appeal be filed the sign would have to come down pending the outcome of the appeal.

L. Ordway offered he didn’t think that to be a problem provided they were willing to put it in writing.

J. Viarengo requested to amend the application for Bed, bath and Beyond to a 7’ X 28’, 196 sq. ft. sign.

L. Ordway moved, second by R. Cole, to grant the request to amend the application to a 196 sq. ft. sign. There was no discussion on the motion. The vote was 5-0-0 U/A.

J. Viarengo offered the following evidence in support of the application:

There would be no decrease in surrounding property values since this signage would be similar with other signs within the plaza
There is an interest for the public to be able to easily identify services that are available and this sign would help in that function
There is a hardship in the location of this building and the lack of visibility to Route 125. It was noted that the sign will only be briefly visible to motorists heading north on Route 125. It was also noted that the height of the building cannot be changed to allow for more visibility so this was the best way to identify the location of the store
There would be substantial justice in that Bed, Bath & Beyond would be able to identify their location while maintaining an attractive storefront in relation to the surrounding area
The application is not contrary to the spirit and intent of the ordinance because the proposed dimension identifies the business but respects the scale of the building and the proportion to the surrounding signage

There was additional discussion regarding the visibility of the sign from Route 125. It was again noted that it was only visible brief to those heading north on Route 125.

L. Ordway, noting this to be a national chain, asked if this was their standard sign.

J. Viarengo replied that it was their only sign. She added that it would be internally lit, with no moving parts or blinking of any kind and would only be illuminated the same times as other signs in the plaza.

P. Bealo noted the plan showed the sign to be energy efficient.

L. Ordway asked if the Board had any additional 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 matter was closed.

The chairman called for a break at 7:47 p.m. The meeting was called back to order at 8:00 p.m.

DELIBERATIONS:

R. Loeffler moved, second by J. Matthews, to grant the request to reconsider the decision made regarding the deduction of units under the elderly housing ordinance.

L. Ordway summarized the discussion, noting that the Court has put this matter back into the Board’s lap to review the decision of a year ago, which was to move back as far as possible the point at which units are to be deducted from the unit cap under the elderly housing ordinance. He offered the Board was being asked again to decide on the fairest of procedures.

L. Ordway suggested that the members review the letter submitted by Attorney Sharon Cuddy-Somers and a few minutes was given for that purpose.

L. Ordway offered that the reason he came to his original conclusion was when applicants #1,# 2, and #3 came in (with plans for elder housing developments) applicant #4 would get whatever was left over. If #2 decided not to move forward then those units would become available to the next applicant in line, which seemed fair enough to everyone. He suggested that what would prevent a developer from making an application for 1,000 units, locking all others out, would be whether or not they had enough land for such an applications, and the sophistication of the Planning staff to weed out such malfeasance. L. Ordway said the he didn’t see how NHRSA 676:4 and 676:12 were applicable in this matter and the Board was right in deciding that first come, first served, was the best and fairest way to determine the number of units. He added that allowing developers to be held up until the PB worked out the nuts and bolts of an application didn’t seem fair to the next application in line.

There was no further discussion in this matter. The vote was 0-5-0 and the motion was defeated. (NOTE: Members voting on this matter: L. Ordway, J. Matthews, R. Loeffler, R. Cole and D. Lloyd)

L. Ordway noted the following reason for denial:

Fairness to all applicants is to prioritize applicants based upon the initial abutter notification and there is a detriment to other applicants to ask them to wait until an application has been accepted as complete by the Planning Board.

R. Cole moved, second by J. Matthews, to grant the request for a sign for Bed, Bath & Beyond at 58 Plaistow Road, as amended to 196 sq. ft.

L. Ordway summarized the discussion noting the following:

The original application was for 400 sq. ft.
This application was for 221.8 sq. ft, as two signs
After discussion with the Board about this needing to be considered as a single sign the application was amended to be 196 sq. ft.
The criteria for the granting of a variance were discussed as part of the hearing
There was almost no visibility for this sign except as one heads north on Route 125 and perhaps from the Westville Road/Route 125 intersection

There was no additional discussion on the motion. The vote was 5-0-0 U/A. (NOTE: Members voting on this matter: L. Ordway, J. Matthews, R. Loeffler, P. Bealo, and R. Cole)

Staff noted a letter from Attorney Sumner Kalman regarding a recent court decision and the implication it could have on future ZBA decisions.

There was no other business before the Board and the meeting was adjourned at 8.22 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant