ZONING BOARD OF ADJUSTMENT
June 25, 2009
The meeting was called to order at 7:03 p.m.
Roll Call: Present were Larry Ordway, Chairman; Julie Matthews, Vice-Chairman; Robert Loeffler; Peter Bealo; Roderic Cole and Paul Boniface, Alternate.
Minutes of May 28, 2009
J. Matthews moved, second by L. Ordway, to approve the minutes of the May 28, 2009, meeting.
L. Ordway offered a spelling correction.
There was no discussion and the vote was 4-0-1 (P. Bealo abstaining).
#09-15: A request from Bodies By Borges Colonial, Inc., for a special exception under Article III, §220-8.C, to expand a structure on a non-conforming lot. The property is located at 231 Main Street, Tax Map 31, Lot 22, in the MDR District. The applicant is the property owner of record.
Steve and Donna Borges, property owners, were present for the application.
S. Borges noted that he had operated his business successfully in Plaistow for a number of years and he would like to put an 24’ X 60’ (1440 sq. ft.) addition on his building. He offered that they have always been respectful of the fact that they have residences around them and they do not work Saturdays and Sundays.
L. Ordway noted that the notes from SEC Associates (the applicant’s engineers) noted there would be no additional work/man hours.
D. Borges explained that business was going well the addition would mean that cars wouldn’t have to be shuffled around as they were going through different phases of the repair process. He added that it would also mean that he wouldn’t have to store half finished cars outside.
R. Cole noted that this addition would make the business run more efficiently.
There was a brief discussion on the non-conformity of this location. It was noted that the property was originally zoned as Commercial I (CI) and was later rezoned to Low Density Residential (LDR) which made the business a non-conforming use.
Pictures of the property and the business were present to the Board for review.
S. Borges explained where the current parking was for the business as well as where the addition was proposed to be located.
P. Bealo noted that where the addition was intended to go was already a paved area.
L. Ordway asked of lot coverage was an issue.
S. Borges answered it was not since they were not going to be significantly expanding the lot coverage.
L. Ordway asked if there were any more questions from the Board; there were none. He asked if there was anyone speaking in favor of the application. There was no one. He asked if there was anyone speaking in opposition to the application.
Tim Lewis, 4 Kelley Road, noted that he had not yet seen a plan for this expansion and asked if there was a fence indicated on the plan.
S. Borges indicated that he had tried to talk to the neighbors and had corrected a lighting issue that was brought to his attention at the Planning Board meeting. He offered that he didn’t have a problem adding a fence to the plan.
T. Lewis asked if there would still be three (3) dumpsters on the property.
D. Borges noted that there were not three (3) dumpsters now and they weren’t planning to change that unless the Planning Board told them they needed to.
L. Ordway asked if there were any additional question or comment. There was no one and the hearing was closed.
DELIBERATION:
P. Bealo moved, second by J. Matthews, to grant the special exception to allow expansion on the non-conforming lot at 231 Main Street.
L. Ordway summarized the testimony offered noting the following:
- The commercial use was conforming when it started
- The property had been re-zoned to LDR
- The business has been in continual operation
- The addition was proposed to be 24’ X 60’
- The business has been successful in Plaistow
- Cars in the process of being repaired could be stored inside thus keeping the site clean
P. Bealo reminded that they were not significantly increasing the lot coverage.
There was no further discussion on the motion. The vote was 5-0-9 U/A.
#09-16: A request from Bodies By Borges Colonial, Inc., for a variance from Article V, §220-32I, for an addition that is said to be constructed within the minimum 50’ rear property set back. The property is located at 231 Main Street, Tax Map 31, Lot 22, in the MDR District. The applicant is the property owner of record.
Steve and Donna Borges, property owners, were present for the application.
S. Borges explained that they would like to add on to the exiting building following the same building line, matching the roofline, but they would be within 23.7 feet of the side property line.
Note: the legal notice states that it is the rear property line but the setback issue is with the side property line. All the same abutters would have been noticed in either case.
It was noted that a lot of the earlier discussion would be applicable for this application.
L. Ordway asked if Mr. Borges had any additional information he would like to offer.
L. Ordway asked if there were anymore 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.
DELIBERATION:
L. Ordway moved, second by P. Bealo, to grant the variance request to allow an addition to an existing building to be built within 23.7 feet of the side property line at 231 Main Street.
L. Ordway summarized the application noting the following:
- The Board was being asked to vary the side line set back and allow a building to be constructed within 23.7’ of the side property line
- The building was compliant when initially built when the property was zoned CI
- The rezoning of the district increased the setback (from a residential use) to 50 feet.
The Board considered the criteria for the granting of a variance with the following results:
- There would be no decrease in the surrounding property values as the business use itself was not expanding, just the existing building, to allow that more could be stored inside keeping the lot cleaner
- It is in the public’s interest to have the partially repaired vehicles stored inside the building
- The hardship was that the town rezoned the property after the building was built and the business was operating, this was not the property owners fault
- There is no other place to put this addition that would make sense for the business operations. Any other placement of the addition on the lot would also require variance
- There is no loss to the public by placing this addition in the proposed location; if the owner needed to increase his hours of operation in order to keep up with business that would be a loss to the public
- The spirit and intent of the ordinance is to maintain separation of structures, a there is still adequate separation between structures
There was no additional discussion on the motion. The vote was 5-0-0 U/A.
#09-17: A request from Nicholas Pichowicz, II, for an equitable waiver from Article IV, §220-21.A.(1), to allow an existing deck, built by a previous owner within the 50’ minimum wetlands setback, to remain. The property is located at 3 Duston Ave, Tax Map 41, Lot 53, in the CII District, and within the Village District Overlay. The applicant is the property owner of record.
Charlie Zilch, SEC and Associates, Inc., and Nicholas Pichowicz, II, property owner, were present for the application.
C. Zilch explained they were requesting an equitable waiver for a condition that was in place at the time the applicant purchased the property, which is the location of the pool and pool deck within the wetlands buffer, 33 feet at the closest point.
L. Ordway asked how long Mr. Pichowicz has owned the property.
N. Pichowicz replied he purchased the house in 1995.
L. Ordway asked who built the pool and pool deck.
It was noted that the previous owner with proper permits had erected the pool and pool deck. It was further noted that the wetlands ordinance did not call for the same setback when the structures were built.
R. Loeffler offered that it was an inherited condition.
L. Ordway asked if there were anymore 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.
DELIBERATIONS:
P. Bealo moved, second by R. Loeffler, to grant the equitable waiver for the location of the pool and pool deck in the wetlands buffer at 3 Duston Avenue.
L. Ordway summarized the application noting the following:
- The construction was done, with a building permit, by the previous owner
- The structure has been there longer than ten (10) years
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#09-18: A request from Nicholas Pichowicz, II, for a variance from Article V, §220-32.C, to allow an automotive garage, currently not permitted as a use in the District. The property is located at 3 Duston Ave, Tax Map 41, Lot 53, in the CII District, and within the Village District Overlay. The applicant is the property owner of record.
Charlie Zilch, SEC and Associates, Inc., and Nicholas Pichowicz, II, property owner, were present for the application.
C. Zilch explained the application noting the following:
- The applicant seeks to construct an automotive repair garage to be able to work from his home
- The property was originally split in two (2) districts, Commercial II and the Medium Density Residential District (MDR)
- The property was zoned completely MDR in 2007 and rezoned to CII in 2008
- The property is completely in the Village Center District (VCD) overlay, which allows for owner-occupied combined residential commercial use
- The proposed garage would by 1,920 sq. ft.
- The applicant met with the Planning Board on April 1 for discussion
- There are a fair amount of compatible uses in the same neighborhood
- Mr. Pichowicz has an established business in town with a good reputation for doing quality work and well maintaining the appearance of the property
A set of pictures, from varying perspectives and including other commercial uses in the area, were present to and reviewed by the Board.
- The intent was to construct the garage in such a fashion that it still resembled a residential garage and is a blend between the residential and commercial uses in the area
L. Ordway asked how big the site was.
C. Zilch replied that it was 1.9 acres. He added that there was a metal fabrication shop across the street from this property. C. Zilch reminded that should the variance be granted they would still have to go back to the Planning Board for a complete site plan review, which would include a review of such things are traffic, landscaping, lighting and drainage.
C. Zilch offered the following evidence in support of the variance application:
- The proposed use would not diminish the surrounding property values because the owner plans to built the garage and conduct his business on the property where he and his family reside and in such a way as to maintain his own property value. The garage will have a residential garage appearance. The business will be run to the strictest standards regarding storage noise and the like.
P. Bealo suggested that should the variance be granted they might want to include a condition that the architectural design of the building must be the same as what has been shown to the Board at this meeting.
- Granting of the variance would be beneficial to the public interest because it would allow the applicant to reside and work in an area already established with a mix of commercial and residential uses. Customers to the business would be within walking distance of other businesses and services they could use while their vehicle was being repaired.
- The property has a unique setting in its environment which would cause a strict application of the zoning ordinance to interfere with its reasonable use because the property is located in a CII zone with established CI uses directly across the street. The owner has the opportunity to have a CI use while keeping the appearance of the business the same as a CII use as well as blend in with the residential uses.
- A fair and substantial relationship does not exist between the general purpose of the zoning ordinance and the specific restrictions on the property for which the variance is being requested because the zoning ordinance does not consider established uses, nor does it make for allowances for new CI type uses that mirror existing uses.
- The variance would not injure the public rights of others because the business shall be operated and maintained to protect the rights of others already established, giving consideration to building appearance, screening, noise control, traffic control, hours of operation and disposal of waste materials.
- Granting of the variance would do substantial justice because not only full productive use of the property, it would allow the owner to occupy and operate his business at his residence as is intended by the VCD overlay. It would also allow the owner the opportunity to create a business that is in keeping with the existing, and established mixed uses of the neighborhood.
- The application is not contrary to the spirit and intent of the ordinance in that the business can be maintained as intended by the ordinance without disrupting or detracting from the various already established uses.
There was a discussion about the existing commercial uses in the area including a welding shop, retail shop and hairdresser.
C. Zilch reiterated that this propose CI use would mirror other CI uses already existing as close as across the street.
L. Ordway asked if there were any further questions from the Board, there were none.
L. Ordway asked if there was anyone speaking in favor of the application.
Three letters of support were read into the record. Those letters were from:
- Daniel J. Poliquin, property owner 4 Duston Avenue
- Michelle and Steven Curran, property owners 151 Main Street
- H&H Custom Metal Fabricating, Inc., 6 Duston Avenue
All the letters supported Mr. Pichowicz as a good neighbor and businessman.
L. Ordway asked if there was anyone speaking in opposition:
William Hallahan, 7 Duston Avenue (and 5 Duston Avenue) noted he bought his property in 1951 and never intended to live next to a business. He noted the following objections:
- The use is not a permitted one
- His swimming pool is located on that side of his property and he was concerned about being able to continue to enjoy the pool with a business operating next to it
- Potential ground water contamination from cars waiting to be repaired and possibly leaking onto the ground
- Traffic and speeding concerns
Frances Hallahan, 7 Duston Avenue, echoed all the same concerns as her husband reiterating that they did not want to live next door to an automotive repair garage.
R. Loeffler, noting that the Hallahans have seen a lot of changes in the area since 1951, asked how close their pool was to the property line.
C. Zilch answered that from the Hallahan’s house to the proposed garage was approximately 180 feet.
W. Hallahan added that the pool was approximately 25 to 30 feet from the Pichowicz property line.
There was a discussion of the relationship of all the structures (Hallahan house, pool and Pichowicz proposed garage) and the distances between them.
C. Zilch noted there was some wooded area and that it could be bolstered to protect the Hallahan’s privacy.
P. Bealo asked if it were possible to move the garage farther away from the property line.
C. Zilch offered that there was some room available to move the garage a little farther away from the Hallahan’s property.
F. Hallahan suggested that the street was too small and that there were plenty of other places in town for people to conduct their business.
Jacquie Allison, 149 Main Street, noted concerns about wetland areas surrounding the property, noting that there were many water and drainage problems in the area. She also expressed concerns about what would happen if Mr. Pichowicz were to sell the property and the next owner wasn’t as conscientious as Mr. Pichowicz. Ms. Allison agreed with Ms. Hallahan that there were many other locations where this type of business would be allowable. She added there was no benefit to the Town just to a single person.
C. Zilch noted that all the wetlands have been mapped by a soil scientist; he reminded that wetlands can change over time, usually getting wetter, but in this case they got drier.
There was a discussion regarding the subdivision map that Ms. Allison had brought to the meeting to show where the wetlands had been designated at the time of the subdivision of the neighborhood.
C. Zilch expressed confidence is the soil scientist noting he was not likely to risk his State stamp for this (or any other) applicant.
L. Ordway noted that additional drainage structures had been added to the street to solve the drainage issues that Ms. Allison described and perhaps they were working so well that they had contributed to the change in the wetlands. He suggested that the change in the wetlands of the area made the properties more usable and perhaps increased their value.
There was another discussion about the wetlands in the area and whether or not runoff from this site would affect surrounding wells and septics.
C. Zilch noted that site plan regulations did not allow them to increase any runoff from the site. He noted that the septic design for the property would go through a number of reviews and approval steps both with the Town and the State of New Hampshire.
L. Ordway asked if there were any additional comments or questions there were none and the matter was closed.
The Chairman called for a break at 8:37 p.m. and the meeting was called back to order at 8:40 p.m.
DELIBERATIONS:
P. Bealo moved, second by R. Cole, to grant the variance request to permit an automotive repair garage at 3 Duston Avenue with the following condition:
- The appearance of the automotive repair garage shall match the design that was submitted to the Board at this meeting, including roofing and siding to match the appearance of the single-family dwelling, and in keeping with the residential appearance of the building.
L. Ordway summarized the application noting the following:
- Proposal is for a 1,920 sq. ft. automotive repair garage on the same site as the owners single-family dwelling, which is a CI use and there not permitted
- Other CI uses currently operating across the street were noted as justification for the granting of the variance
- Three (3) property owners, all non-residential wrote letters of support for the application
- Owners of two (2) abutting residential properties expressed opposition to the CI use
R. Loeffler suggested that the concerns expressed by the residential abutters were more Planning Board issue that issue relevant to this application. He reminded that it was a conceptual plan and not in concrete.
L. Ordway reminded that the vote was to grant a CI use in the CII District.
P. Bealo offered that the abutters do not what to see the CI uses continue to creep into the CII District.
R. Loeffler offered that this is what the VC District was created for, to bring low volume business uses into the center of town. He added this was a low profile business already established in town and wouldn’t be hurting anyone while allowing the owner the best use of his property.
J. Matthews suggested there was a reason why there were CI and CII uses and why they weren’t the same uses. She expressed concern that allowing this use would set a precedent that would make it difficult to deny other CI uses in the CII District.
R. Loeffler noted that this Board did not know the reason why that was so.
L. Ordway offered that they didn’t need to know why there were two different lists of permitted uses they just needed to know that there are two different lists.
R. Cole suggested there was concern about one side of a particular street over another.
P. Bealo disagreed, offering the concern was about the expansion of non-permitted uses.
The Board reviewed the criteria for the granting of a variance noting the following:
- If based solely on the fact that there are already CI uses in the area and given the proximity to Main Street there may not be a decrease in the surround property values. A argument could be made that the current intended location of the garage could have an adverse affect on the directly abutting residential property values
- The public voted to establish the list of uses for the CII District as well as the VC District and allowing a CI use flies in the face of that vote
- Thought there may be a financial hardship for the owner not to be able to operate his business from this location that is not a hardship that a variance can be based upon
- The abutters expressed that they would suffer if the garage were so close to their property and the quality of their live would decline, therefore the is no justice in granting this application.
- The ordinance clearly states the types of uses that are permitted in the CII area and leaving off an automotive repair garage was not done by accident; therefore granting the variance would be contrary to the spirit and intent of the ordinance.
There was no additional discussion of the motion. The vote was 1-4-0 (Ordway, Matthews, Bealo and Cole dissenting) and the motion was defeated.
There was no further business before the Board and the meeting was adjourned at 8:55 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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