ZONING BOARD OF ADJUSTMENT
May 27, 2010
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 (arrived 7:10 p. m.); Joyce Ingerson; and James Allen, Alternate.
J. Allen was appointed as an alternate pending the arrival of R. Cole.
Minutes of March 25, 2010
It was noted that the date at the top of the minutes needed to be corrected, but the date in the bottom footer was correct.
J. Matthews moved, second by L. Ordway, to approve the minutes of the March 25, 2010, meeting. There was no discussion and the vote was 2-0-3 (Matthews, Ingerson and Allen abstaining).
Continued from April 29, 2010:
#10-04: A request from David Spero., for a variance from Article V, §220-32A to allow a commercial use, namely a martial arts studio, in an industrial district. The property is located 31 Westville Road, Tax Map 40, Lot 9 in the I District. The property owner of record is D & H Construction.
David Spero, 7 Coventry Road, Atkinson, NH was present for the application. It was noted that written permission had been received from the property owner for Mr. Spero to make the application.
D. Spero explained that he would like to open a martial arts studio at the 31 Westville Road location. He said that he had looked at several locations and this one was the best suited for him. Mr. Spero noted there would be plenty of available parking as his hours of operation where different from those of the occupants, mostly contractors. He said that his hours would be after 5:00 p.m., when most of the contractors would be closed.
L. Ordway noted that Mr. Spero has been informed that this is not a permitted use in the Industrial District.
R. Cole arrived at 7:10 p.m.
L. Ordway asked what the proposed hours of operation would be.
D. Spero replied that they would be 5:00 p.m. to 9:00 p.m. during the week and starting at 9:00 or 10:00 a.m. on Saturday.
L. Ordway questioned why not daytime (weekday) hours.
D. Spero answered that this would be his second job but martial arts was his first love.
R. Loeffler asked if Mr. Spero was currently doing martial arts elsewhere.
D. Spero responded that he was currently training with someone in Londonderry.
R. Loeffler inquired if Mr. Spero had any clientele.
D. Spero replied that he did and they were all very excited.
L. Ordway asked if there more 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 matter was closed.
L. Ordway explained the procedure for the hearing and deliberation process for this meeting.
Continued from April 29, 2010:
#10-05: A request from James Mosher for a special exception under Article X, all sections to permit a home occupation, namely and office for landscaping an excavation company. The property is located at 3 Carlton Path, Tax Map 18, Lot 5, in the LDR District. The applicant is the property owner.
James Mosher, 3 Carlton Path, was present for the application. He explained that he had moved to Plaistow from Kingston a few years previously. He said that he would like to have an office for his business in his home for convenience and the ability to register his business vehicles.
J. Mosher offered the following evidence in support of his special exception application:
- The use would be secondary to the residential use of the home
- The application qualifies under §220-66C – Contractors
- There would be no uses that are noxious, injurious, by reason of smoke, fumes or emissions or result in electrical fluctuations
- There would be no harmful chemicals, including fertilizers, stored on the property
J. Mosher noted that most of his landscaping work was limited to tree cutting and yard grading work.
- Residential use of the property was established before the business use
- The office would use 7% of the living space
- The residential character of the dwelling would not be changed
- There would be no outside or equipment storage
L. Ordway questioned if there would be any equipment stored on the property.
J. Mosher replied that there would be nothing at this time. He said he had a small trailer that he occasionally pulled with his pick-up truck.
L. Ordway asked where the equipment was currently being stored.
J. Mosher replied that he was storing it at the Busby Construction lot.
It was noted for Mr. Mosher that should he desire to store construction equipment on the property in the future he made need further permission and/or relief from this board.
- There would be no signage
- No one, not living in the home, would be working on the premises
- There will be no clients coming to the property and there is ample parking for the residential use
- There are no deliveries, other than normal residential ones, to the property
L. Ordway asked if loam and other such materials were delivered directly to the site.
J. Mosher confirmed that to be correct.
- There are no covenants or restrictions in the deed
- The property is not a condominium
R. Loeffler asked where Carlton Path is accessed.
J. Mosher explained that it was accessible from the end of Lynwood Street.
There was discussion of a photo said to be a picture of the parking area at the residence.
L. Ordway asked if there more 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 matter was closed.
#10-06: A request from Michael Gahn for a variance from Article V, §220-32I, to permit a garage to be located within 15 feet of the property line, where 25 feet is the minimum requirement. The property is located at 8 Upper Road, Tax Map 17, Lot 24, in the LDR District. The applicant is the property owner of record.
Michael Gahn, 8 Upper Road, was present for the application. He noted that he wanted to build a garage on the right side of his property and there wasn’t enough room to do so and meet the setbacks.
He presented pictures of the area that he would like to erect the garage.
R. Loeffler asked the size of the proposed garage.
M. Gahn replied that he would like it to be 26’ X 26’.
R. Loeffler, noting that was larger than a standard 2-car garage, asked why that particular size.
M. Gahn answered that he would like a place for his workbench and to have dry storage for his boats and cars.
L. Ordway asked if the garage would be attached to the dwelling.
M. Gahn replied that it would not.
L. Ordway, noting there was sixteen (16) feet indicated between the existing house and the proposed garage, asked why it couldn’t be moved closer.
M. Gahn responded that he would have to relocate his existing driveway as well as remove a good amount of landscaping walls that were there.
L. Ordway asked if the garage could be moved ten (10) feet closer.
M. Gahn said that it was only four (4) feet to the landscaping wall and it would be very costly for him to remove them.
L. Ordway asked how close the existing structure was on the abutter’s property.
M. Gahn noted there was a large group of trees and a good distance of lawn before getting to the closest structure on that abutter’s side. He estimated the distance to be about 100 feet.
L. Ordway asked how large Mr. Gahn’s property was.
The tax map was reviewed and it was noted that Mr. Gahn’s property is .74 acres, and the properties on either side of him were .78 and .73 acres.
L. Ordway asked if there more 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 matter was closed.
#10-07: A request from PEAM Realty LLC (Paul Sickle) for a special exception under Article III, §220-8C, to allow expansion of a building on a non-conforming lot. The property is located at 63-65 Plaistow Road, Tax Map 27, Lot 43, in the CI District. The applicant is the property owner of record.
Paul Sickle, 1 Partridge Lane, was present for the application.
R. Loeffler and J. Allen asked to be recused for this matter.
L. Ordway noted there would only be four (4) members available to hear this matter. He cautioned Mr. Sickle that three (3) voted to the affirmative of what ever motion is made would be required to pass that motion, so a split vote (2-2-0) would mean the defeat of the motion. He informed Mr. Sickle that he had the right to request that his matter be continued to such time as there are five (5) members available to hear his matter.
P. Sickle said that he would continue on with his application.
It was noted for the record that the four (4) member board could not be grounds for requesting a re-hearing should this application be denied.
P. Sickle explained that he would like to put a 12 foot addition for a walk-in cooler on the unit currently occupied by Signal Variety. He added that when the State of New Hampshire took part of his frontage to build the four-lane bridge, his lot became non-conforming and therefore requires a special exception for anything that he wants to do on his site.
L. Ordway offered that he thought it was intended just to be a loading dock.
P. Sickle said there would be a loading area and a walk-in cooler so that product could be offloaded into the cooler.
L. Ordway asked if it was in the rear of the building.
P. Sickle confirmed that it was.
L. Ordway questioned if this would be near the access road.
P. Sickle noted that access road was given back to him at Town Meeting a few years back making the entire area he owned approximately a seven (7) acre parcel. He added there was no setback issue to the rear.
There was discussion about current curb cuts and how customers navigate around the site.
P. Sickle offered he wasn’t proposing any new curb cuts, but it was difficult for him to control if people choose to navigate improperly around the site.
Mr. Sickle showed a plan to the Board the located the proposed addition for the walk-in cooler and loading area. He noted how delivery trucks would navigate the site and the loading area.
P. Sickle noted that he would be enclosing the existing loading dock and expanding out twelve (12) feet for the walk-in cooler and loading area so that product wouldn’t have to be brought through the store.
L. Ordway asked if there more 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 matter was closed.
R. Loeffler turns to be a voting member.
#10-08: A request from Patrick M. Connolly for a variance from Article III, §220-13B, to allow the parking of commercial vehicles (enclosed trailers) on a residential lot The property is located at 8 East Pine Street, Tax Map 38, Lot 122, in the MDR District. The applicant is the property owner of record.
L. Ordway asked if there was anyone representing the Patrick Connolly application, he asked a second time, then a third. There was no answer to any of the requests.
L. Ordway noted that the application could not be heard without representation and the applicant would have to re-apply for a future meeting.
The Chairman called for a break at 7:35 p.m. The meeting was brought back into session at 7:42 p.m.
DELIBERATIONS
Continued from April 29, 2010:
#10-04: A request from David Spero., for a variance from Article V, §220-32A to allow a commercial use, namely a martial arts studio, in an industrial district. The property is located 31 Westville Road, Tax Map 40, Lot 9 in the I District. The property owner of record is D & H Construction.
J. Matthews moved, second by R. Loeffler, to grant the variance and allow a martial arts studio at 31 Westville Road.
L. Ordway summarized the application noting the following:
- This is an industrial building, close to the railroad tracks
- Industrial uses do not include a martial arts studio
L. Ordway read the opening paragraph of Article V, §220-32A, which noted the public services uses, including recreational uses, were allowed. He suggested that this use could be considered recreational and therefore a permitted use in the district. L. Ordway noted that customers would be mostly school-aged children.
R. Loeffler said that he thought it would be a good situation as there would be ample parking. He added that he was under the impression that Mr. Spero would be purchasing the unit, which was not presented as part of the application.
D. Spero offered from the gallery that he would be purchasing the unit. He was reminded and cautioned that he could offer no additional evidence during deliberations.
There was no further discussion on the motion. The vote was 5-0-0 U/A.
Continued from April 29, 2010:
#10-05: A request from James Mosher for a special exception under Article X, all sections to permit a home occupation, namely and office for landscaping an excavation company. The property is located at 3 Carlton Path, Tax Map 18, Lot 5, in the LDR District. The applicant is the property owner.
R. Loeffler moved, second by R. Cole to grant the special exception for a home occupation at 3 Carlton Path.
L. Ordway summarized the application noting the following:
- No signage
- This is a single-family residence
- Heavy equipment is stored offsite
- There will be a utility trailer pulled with a pick-up truck
- No chemicals stored on the property
J. Matthews noted that in the words of Peter Bealo this was a “classic case.”
There was no further discussion on the motion. The vote was 5-0-0 U/A.
#10-06: A request from Michael Gahn for a variance from Article V, §220-32I, to permit a garage to be located within 15 feet of the property line, where 25 feet is the minimum requirement. The property is located at 8 Upper Road, Tax Map 17, Lot 24, in the LDR District. The applicant is the property owner of record.
R. Cole moved, second by J. Matthews, to grant the request for a variance to permit a garage within fifteen (15) feet of the property line at 8 Upper Road.
L. Ordway summarized the application noting the following:
- The subject parcel is approximately ¾ acre in size, surrounding by parcels of similar size
- Reason for requesting the variance is to preserve some well developed landscaped areas
- There is no abutting structures within 100 feet of the proposed garage
- The area between the two lots is well screened with trees
R. Loeffler noted that if he were asked to move the garage to meet the setback he would lose a whole bunch of landscaping
J. Matthews added there were a lot of rock walls
The Board reviewed the criteria for granting a variance, noting the following:
- There would be no diminishment of the surrounding property values, new structures tend to increase values
- Granting the request would not be contrary to the public’s interest, which is in separation of structures, since there will close to 100 feet it’s seen as sufficient separation
R. Loeffler said that it would be a nice replace for the vinyl tent (seen in the pictures).
- The public’s interests would be served by the increase there would be in property taxes for the new structure as well
- Hardship
J. Matthews said that this is where she “scratches her head” to see a clear hardship in the land.
L. Ordway reminded that the applicant did say that he would have to destroy valuable landscaping, which would be a financial hardship, but unfortunately the hardship must be in the land itself to be considered for a variance. He said that if there was a large boulder in the way that would be a clear hardship in the land.
J. Matthews suggested the rock walls could be looked at as now being permanent structures of the land, noting they were not like flowers and shrubs.
L. Ordway added the rock walls were not that easy to remove.
R. Loeffler noted that the structure was man-made and not of the land. He added there was approximately 16 feet between the dwelling and the proposed garage.
The Board reviewed the survey plan provided in the application.
L. Ordway suggested he could design a slightly smaller garage and then he wouldn’t have to disturb as much of his landscaping, but he just didn’t’ see the hardship in the land for the variance.
R. Cole offered he didn’t see the point in making him tear down existing landscaping that really looks nice.
J. Matthews agreed.
R. Loeffler recalled a recent application where the applicant was seeking a variance that would allow him to build a garage without cutting down some trees that he liked. He reminded that applicant was denied.
- There would be substantial justice in allowing the garage to be built, but the applicant will still be able to build his garage, perhaps smaller or in another position so as not to lose as much landscaping
- There is sufficient separation between structures so the applicant’s request is not contrary to the spirit and intent of the ordinance
There was no additional discussion on the motion. The vote was 0-5-0 and the motion was defeat, the request denied.
#10-07: A request from PEAM Realty LLC (Paul Sickle) for a special exception under Article III, §220-8C, to allow expansion of a building on a non-conforming lot. The property is located at 63-65 Plaistow Road, Tax Map 27, Lot 43, in the CI District. The applicant is the property owner of record.
J. Matthews moved, second by R. Cole, to grant the special exception to allow the expansion of the non-conforming lot at 63-65 Westville Road.
L. Ordway summarized the application noting the following:
- Tenant Signal Variety was looking to expand their building for a walk-in cooler and a better loading dock situation
- The former Westville Market building was only seven (7) feet from the property line due to a previous State taking of the land, which made the lot non-conforming
- The request is for a minor expansion, which will increase the traffic safety around the building
There was no additional discussion on the motion. The vote was 4-0-0 U/A. (Voting members were: L. Ordway, J Matthews, R. Cole and J. Ingerson – R. Loeffler recused)
Other Business
D. Voss requested that the Board consider cutting back the number of RSA Land Use books ordered each year, to a reference copy to be maintained in the office.
R. Loeffler suggested that there be two (2) copies, one kept in the office and one that would stay with the Chairman.
The consensus of the Board was that they would go with the two (2) copies.
R. Loeffler, noting the letter of resignation from D. Voss, requested that she re-consider her decision to leave the Board.
There was no further business before the Board and the meeting was adjourned at 8:06 p.m.
Respectfully Submitted,
Dee Voss
Administrative Assistant
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