Town of Plaistow Archive - ZBA Minutes 02-26-09

ZBA Minutes 02-26-09

ZONING BOARD OF ADJUSTMENT

February 26, 2009

The meeting was called to order at 7:07 p.m.

Roll Call: Present were Larry Ordway, Chairman; Julie Matthews, Vice-Chairman; Roderic Cole, Alternate; Dan Lloyd, Alternate; and Paul Boniface, Alternate. Robert Loeffler and Peter Bealo were excused.

R. Cole, D. Lloyd and P. Boniface were appointed as voting members for this meeting.

Minutes of January 08, 2009

J. Matthews moved, second by L. Ordway, to approve the minutes of the January 08, 2009, meeting. There was no discussion and the vote was 5-0-0 U/A.

#09-01: A request from Andrey Romanov for a variance from Article III, §220-9.1 to permit a driveway, and ground for temporary plastic garage, 17.8’ from the property line, where 25’ is the minimum required. The property is located at 8 Newton Road, Tax Map 65, Lot 6, in the LDR District.

Andrey Romanov was present for the application.

It was noted that the legal notice reported this property to be located in the LDR (Low Density Residential) instead of the ICR (Integrated Commercial Residential) district, where the property is actually located, but the set back requirements are the same in both districts.

A. Romanov noted that he would like to install a temporary garage next to his existing garage to allow extra covered parking for him and his wife.

L. Ordway offered that he had driven past the property and questioned why Mr. Romanov would not put the structure to the left of the existing garage, where it appeared from the Pictometry picture submitted by the Department of Building Safety, there was plenty of room and would meet the setback requirements.

A. Romanov explained that on the left side of the existing garage there was a fence and the land slopes downward 2-3 feet. He added that on the right side of the existing garage the land was level and there were no trees or other obstructions.

L. Ordway asked if the land sloped three (3) feet below the foundation of the existing garage.

A. Romanov replied that would correct and it was the same for the house foundation as well.

L. Ordway asked how temporary the temporary garage would be.

A. Romanov noted that he and his wife were “getting on in years” and he wasn’t sure how long either of them would still be driving but he would like to have the structure for as long as they both had cars.

L. Ordway suggested that could be as much as fifteen years.

A. Romanov said it could be as much as that or it could be less if they decided to move. He added that he had no children and wouldn’t need the house (or that temporary garage) forever.

Mr. Romanov offered the following evidence for the granting of a variance:

Granting the variance would not adversely affect the surrounding property values because there is adequate separation between the proposed structure and existing structures on the abutting property. The approximate distance between structures is 29.8 feet. The space will still allow for adequate access by fire apparatus.
There is benefit to the public interest in that a wider driveway would offer people the opportunity to turn around if they needed to. The paved area would also be beneficial to pedestrian traffic.
There is a hardship because there is a need for a temporary garage as both Mr. and Mrs. Romanov are getting older. This is the only place the (temporary) garage can be placed as the property significantly slopes at the other side of the existing garage.
Allowing the variance would do substantial justice because it would offer pedestrians a larger and safer area. The total paved area would be 391 sq. ft.
It is not contrary to the spirit and intent of the ordinance because there would still be adequate separation between structures and there would be plenty of room for fire apparatus to navigate to the back of the lot.

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

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

John Daggett, 10 Newton Road, offered that he had lived next door to Mr. Romanov for a number of years and he (Mr. Romanov) had always been a good neighbor and maintained his property well. He added that Mr. Romanov does many things to enhance and beautiful his property and he had no reason to believe that he would make these improvements in a responsible manner. Mr. Daggett added that he had no fear that allowing this variance would in any way adversely affect his property value.

A. Romanov added that he and Mr. Daggett had always used the space between their properties together.

L. Ordway asked if there was anyone else speaking in favor of the application. There was no one else. He asked if there was anyone speaking in opposition. There was no one and the hearing was closed.

L. Ordway explained the process for how decisions would be made at this meeting as well as the thirty-day appeal period before applications can take action.

#09-02: A request from Frank DeLucia & Son, for a variance from Article V, Table 220-32G to permit a contractor’s yard, which is currently not a permitted use. The property is located at 101 Sweet Hill Road, Tax Map 68, Lot 8C in the ICR District. The owner of record is St. Matthews United Methodist Church.

Phil Christiansen, Christian and Sergi, and Rocci DeLucia, Applicant, were present for the application.

It was noted for the record that written authorization for the application had been received from the property owner.

R. DeLucia explained that his family business was currently located in Methuen, Massachusetts and they would like to relocate it to Plaistow. He said that it was his understanding that they were here to get clarification on the zoning ordinances and whether or not this use would be considered a contractor’s yard. Mr. DeLucia offered that his family had been in this business for more than thirty (30) years and they would like to preserve the business for future generations. He explained that their plan was to construct a 60’ X 80’ steel garage to do general maintenance and repairs on their own equipment. They would also like to park equipment both inside and outside of the building as well as store materials that might be left over from a job until it could be used at another job site. Mr. DeLucia noted that materials that might be temporarily stored on the property would be things such as drainage pipe. He added that number of vehicles that would be stored on the property would be minimal and that most of the equipment stayed on the job site, adding that they weren’t being productive if the equipment was in the yard. Mr. DeLucia noted other contractors in the area including some local contractor condos (Red Oak Drive) as well as Brady Brow Salvage nearly right across the street.

L. Ordway asked for them to describe this contractor’s yard.

P. Christiansen offered that was part of the issue; there was no written definition for a contractor’s yard in the ordinances. He continued that a number of aspects of the business were permitted if considered as separate uses. He listed these uses to be:

Office use
Vehicle service repair facility
Accessory use
Storage of equipment/vehicles used to service a product

P. Christiansen noted they had been to the Planning Board who made the determination that the total use was as a contractor’s yard and that they were here to get clarification on whether or not it would be considered a contractor’s yard and if so to ask for a variance.

L. Ordway noted that the letter from the Planning Board clearly stated that it was a contractor’s yard and therefore not a permitted use so a variance would be needed to go forward.

L. Ordway asked what would be the worst case scenario, for example, if he went by the property on New Year’s Day and all the vehicles were in the yard how many would there be and what type.

R. DeLucia answered outside the garage one would probably see the following:

Dump trailer (2)
Storage trailer
Low bed trailer
10-Wheeler (2)
Dozer (2)
Excavator (2) (1- 70,000 and 1 – 20,000 capacity)

L. Ordway asked for a description of the property in Methuen where the business is currently located.

R. DeLucia answered that the acreage was nearly the same but was used in a much different fashion. He said there were two (2) offices; a single-family home; four (4) out buildings, all scattered about the property with no efficiency of use. Mr. DeLucia said that the new location would have one larger garage where more equipment would fit inside and be neater.

L. Ordway noted that over the years he had seen piles of loam and other landscaping materials at the Methuen site. He asked if that would be the same at the Plaistow location.

R. DeLucia responded that the nature of their business had changed over the years. He noted that the piles of landscaping materials was not on their property (in Methuen), but was next door on a vacant lot that they used as a staging area. Mr. DeLucia added that they no longer do that kind of work.

L. Ordway asked where parking would be on the lot.

R. DeLucia replied that they would like to put the garage closer to Sweet Hill Road, with the bay doors to the left of the building. He said that parking was intended to be around the back of the building, adding that they did not like to see the equipment back at the shop because that meant it wasn’t out at a working job site.

D. Lloyd asked if the equipment would be taken off the property via Sweet Hill Road.

R. DeLucia reminded that Sweet Hill Road was a State road and the driveway was intended to be on the side of the parcel nearer the craft barn.

P. Christiansen offered that following evidence in support of their variance application:

There would be no diminishment of the surrounding property values as similar uses currently exist on Route 108 and many of the coincidental uses (of the applicant’s company) are permitted in the district.
Granting the variance is in the public’s interest because it was increase tax revenue.
The property does not have a unique setting in its environment which would cause a strict application of the zoning ordinance to interfere with its reasonable use because the uses of the business office and storage of equipment and vehicles used to service a product are allowed within the district and are analogous to the applicant’s proposal
A fair and substantial relationship existing between the propose of the zoning ordinance and the specific restriction for which the variance is requested because the proposal has been deemed a contractor’s yard, which is not defined in the zoning ordinances. The intended use is substantially related to the permitted business office and equipment/vehicle storage uses.
The variance requested would not injure the public rights of others because the applicant meets all setback and screening requirements and similar uses exist within the ICR district along the Route 108 corridor.
There would be substantial justice in granting the application again as there are similar uses in the ICR district
Since similar uses already exist in the district and many of the individual functions of the business are permitted uses in the district this application is not contrary to the spirit and intent of the ordinance.

L. Ordway asked what kinds of materials would be stored on the site.

R. DeLucia answered that they might have some overstock from one job that would be stored temporarily on the site, adding there would not be large stock piles of materials.

L. Ordway inquired if the variance were granted with the restriction that there be no construction materials be stored on the property would the applicants be agreeable to that.

Jeff DeLucia, DeLucia and Son, explained that they would need at least some temporary storage for overstocks from a finished job until it can be moved to the next job. He added that they tried to purchase only enough to do a particular job as it was not cost efficient for them to stock pile materials any longer. He added they no longer stock pile loam.

L. Ordway noted that he had seen a lot of junk and materials being stored at the Methuen site over time.

J. DeLucia responded that was being kept for sentimental value by older members of the family and would not be happening at the Plaistow site. He asked if there was a way to designate the storage as temporary with a time limit for storage.

R. DeLucia reiterated that the storage would be temporary and if complaints were received they would be forced into action and he was not afraid of that.

J. DeLucia noted that the folks at the church supported their application. He added that they didn’t want to make the move from Methuen they were being forced to make this move. He added that they didn’t want to move to this site just to have problems with the neighbors.

R. Cole noted a concern with traffic in that area noting it to be a tight corner.

J. DeLucia offered there was already a NHDOT (New Hampshire Department of Transportation) driveway permit in place, which included a deceleration lane. He added that there was an intention to include a landscaping berm of elevated earth and plantings to make the property presentable and offer screening for the abutters.

L. Ordway asked if there were any additional question from the Board, there were none. He asked if there was anyone speaking in favor or in opposition of the application.

Jim Sexton, 19 Timberlane Road, offered that he was neither in favor of, nor in opposition to, the application, noting that it sounded like the intent was to run a clean operation. He said that his concern was for what he might see looking out his window, adding the right now there was a mobile home in disrepair.

L. Ordway offered that if Mr. Sexton had a problem with an existing condition in his neighborhood he should address them with the building inspector.

It was noted that should the variance be granted the applicant would still have to go before the Planning Board for approval of their site plan and that would involve additional public hearing(s) where abutters could express their concerns about the particular features of the site.

The chairman called for a break at 7:50 p.m. The meeting was called back to order at 8:02 p.m.

DELIBERATIONS:

J. Matthews moved, second by R. Cole, to grant the setback variance application at 8 Newton Road.

L. Ordway summarized the application noting the following:

Request it for a paving of space next to the existing garage to allow for a temporary plastic garage which in speaking to the applicant is more permanent that temporary in nature
The applicant wants to pave to the right of the existing garage as there are slopes, trees and fencing to the left of the existing garage
There was input from the closest abutter in support of the application noting the Mr. Romanov does a nice job maintaining his property and who has no reason to believe that he will not continue to do the same

The Board reviewed the criteria necessary for the granting of a variance noting the following:

The applicant if looking for an approximate seven (7) foot variance and would be twenty-six (26) feet from the closest structure on the abutting lot the variance going with the property in perpetuity had to be considered. It was thought that the paved area would not adversely affect the property values but what was placed on that pad i.e. the plastic garage structure might, but this application was for the pad not the proposed plastic garage.
The applicant suggested the additional paving would be beneficial to the public interest by offering additional pedestrian walking area as well as a place for motorists to turn around if needed.
There was question whether or not the area to the left of the existing garage could be used for the plastic garage or whether the drop was a severe as reported. It was noted as a potential, albeit more expensive, alternative. The Pictometry picture submitted by the Department of Building Safety showed there to be adequate spacing to place the plastic garage to the left of the existing garage but did not show the slope of the property.

J. Matthews asked if L. Ordway could tell the severity of the drop off when he was looking at the property.

L. Ordway replied that it was not severe enough to catch his eye from the street.

The question of substantial justice was not as relevant as if there was any benefit to the general public it was marginal at best
The spirit and intent of the ordinance is to provide separation between structures and distance to the property lines the plastic garage on the right side of the property could crowd the right property line and how superior a job the property owner does maintaining his properties appearance is not relevant to the question.

D. Lloyd asked if the pad were gravel would that make a difference.

It was noted that the ordinance called for any driveway, no matter what material it is make from, conform to the setback requirements.

L. Ordway added that the current neighbors could be as close and a “hot dog and a bun” today but it was the board’s responsibility to look at what might happen in the future if one or the other should sell their property.

There was no additional discussion on the motion. The vote was 3-2-0 (Ordway and Matthews dissenting) and the motion is passed.

J. Matthews moved, second by L. Ordway, to grant the use variance at 101 Sweet Hill Road.

L. Ordway summarized the application noting the following:

The applicant would like to relocate their Methuen business to Plaistow and erect a steel building to maintain, repair and store their equipment when not on the job site.
A considerable amount of excess materials could be stored on the property between jobs

J. Matthews expressed concern that the company had a lot of equipment that could be potentially stored on the property.

L. Ordway recalled that when there was a variance request for a landscaping company, located near Red Oak Drive, the request was for smaller equipment such as a Kubota tractor, not equipment of the size and number listed by this applicant.

The applicant listed similar contractor’s yards in the area as well as the Brandy Brow Salvage yard.

The Board reviewed the criteria required for the granting of a variance noting the following:

The scale of the business and size and number of pieces of equipment may affect the surrounding property values, particularly the residential uses on Sweet Hill Road already being depressed by Brandy Brow.
The increase in tax revenue said to be the interest of the public may not be significant enough to offset the drop in other property values.
It’s a very nice piece of property and could have a residential use or a less intense commercial use.
Despite some of the individual functions of the business being the permitted used the totality of the uses as a contractor’s yard are not permitted. The comparisons to Brandy Brow were not seen as valid and only distantly related to the proposed use.
Substantial justice is in protecting the value of the residential uses, should there be other similar uses in the immediate area it would be relevant but there are none.
The spirit and intent of the ordinance is to allow some commercial uses to be in the same district as some residential uses but not to the intensity of a contractor’s yard.

There was no further discussion on the motion. The vote was 0-5-0 and the motion was defeated.

Reasons for denial:

Granting the variance would have an adverse affect on the surrounding property values
Contrary to the spirit and intend of the ordinance. Brandy Brow was not seen as a similar type of business and no others were listed in the immediate area.

REQUEST FOR RE-HEARING

#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.

It was noted that all members of the Board had received a copy of the request for re-hearing submitted by counsel for Ron Brown.

L. Ordway suggested that the request restated many of the items that were part of the original application and were heard at that hearing. He offered that he didn’t see any alleged errors in the submission, nor did he read that there was any new evidence to justify the request for a re-hearing.

L. Ordway moved, second by J. Matthews, to grant Ron Brown’s request for a re-hearing.

L. Ordway reiterated that he didn’t see anything in the submitted request that would justify the granting of a re-hearing.

There was no further discussion on the motion. The vote was 0-5-0 and the motion is defeated.

Other Business

It was noted that date for the Spring Planning and Zoning Conference was approaching and the new members should be attending to fulfill their educational requirements.

L. Ordway suggested that the entire Board goes as a group.

There was no further business before the Board and the meeting was adjourned at 8:31 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant