Town of Plaistow Archive - ZBA Minutes 05-31-12

ZBA Minutes 05-31-12

ZONING BOARD OF ADJUSTMENT MINUTES

May 31, 2012

Call to Order: 7:00 P.M.

Item One:

ROLL CALL: Present were – Larry Ordway; Chairman, Joyce Ingerson, James Allen, Paul Boniface and Tim Fisher; Alternate. Roderick Cole was excused.

L. Ordway appointed Alternate member T. Fisher to be a voting member for the meeting.

Minutes of October 27, 2011, February 23, 2012 and April 26, 2012

October 27, 2011

J. Allen motioned to accept the minutes of the October 27, 2012 meeting, second by J. Ingerson.

There was no discussion on the motion and the vote was 3/0/2; P. Boniface and T. Fisher abstained.

February 23, 2012

P. Boniface motioned to approve the minutes of the February 23, 2012 meeting, second by J. Allen.

There was no discussion on the motion and the vote was 4-0-1; T. Fisher abstained.

April 26, 2012

J. Ingerson motioned to accept the meeting minutes for April 26, 2012; second by T. Fisher.

There was no discussion on the motion and the vote was 3-0-2; P. Boniface and J. Allen abstained.

CONTINUED FROM MARCH 29, 2012 and APRIL 26, 2012

#12-04: A request from Patrick M. Connolly, LLC, for an appeal of an administrative decision of the Planning Board that deemed a proposed use to be a Contractor’s Yard and therefore not a permitted use in the ICR District under Article V, §220-35.G. The property is located at 15 Newton Road, Tax Map 66, Lot 28, in the ICR District. The applicant is the property owner of record.

Present for the hearing was Tim Lavelle, James Lavelle Associates; Michael Gerstein, Phillips, Gerstein & Channen; Donald Connolly and Patrick Connolly.

M. Gerstein noted for the record that on the petition it is stated as Article V, §220-32.G and not 35.G.

The Board will hear the case under Article V, §220-32.G.

M. Gerstein noted there is no definition for a contractor’s yard in the Town’s ordinance. He researched the Town’s minutes using February 21, 2009 and July 28, 2011 as examples of decisions made without a definition of a contractor’s yard. He found a definition from another town; “an area of open storage for materials used for construction and for construction equipment which is typically not licensed to travel on the public highway”. He noted that Absolute Roofing does/ does not do the following:

No storage or warehousing
They have material delivered and it is taken to jobs sites; not left on the site
They have a truck or bobcat; vehicles that are registered to go on a highway

M. Gerstein added that it is hard to say it is a contractor’s yard without a definition.

T. Lavalle, P. Connolly and D. Connolly offered the following information about Absolute Roofing to the Board:

Four enclosed trailers, 7’x14’; typically never get unloaded
Materials are delivered directly to the job site
Most of the storage is for the trucks and trailers
Ladders are on trucks or in trailers; about 20 ladders
They own 2 dump trucks
If allowed they would like to have the bobcat on site for snow removal
The trailers would be parked behind the building
They plan to put a screen up on the residential side to block the view of trailers; Arbor Vitae; evergreens
Pick-up trucks are personal vehicles and will not be stored on site
They do not buy materials in volume
They do membrane and metal roofing, siding, decks and windows; home improvement
They access the back yard by driving alongside of the garage
They typically dump the waste at the end of every day, occasionally one is left full until the next morning
They use Bestway in Raymond NH for waste removal
They have no plans to store waste on site
The lot size is 105’wide x almost 400’in depth
They have never had big trailers out back; just a flat bed trailer, back hoe and bobcat
They are able to leave their equipment at the New England Dragway if they need to
They have discussed the proposed plan with abutter Dick Haynes
They own a D3 excavator; it was used to build houses on their land in Ossippee, NH. They keep it at the New England Dragway and will not bring it into Plaistow when lease is up
They have no plans to build houses now
Their backhoe is also kept at the New England Dragway

There was no one to speak in favor of the application.

Ralph Scovotti, 14 Newton Road, was present to speak in opposition to the application. He gave the Board pictures of the site to review. The pictures show vehicles the applicants stated were not on the site but have actually been on site in previous times. He added that the applicants had cut down the trees that screened the yard. His concern is not the garage but the storage out back; it is what he sees from every window on that side of his house; the applicants will not be able to build a high enough screen to shield the view from his property.

D. Connolly refuted, noting that the vehicles were there when the applicants were building the garage and working on the site itself.

L.Ordway asked about the list of items on the Absolute Roofing website that was not mentioned in the hearing included garages, additions and bathroom and kitchen remodeling.

D. Connolly replied that they have not done those things yet, but they are trying to. They did build a building at the Dragway to house a generator.

P. Connolly refuted, stating that if they did build additions the framing would be contracted out; none of the materials would be brought to their site but instead they would be delivered to the job site.

M. Gerstein suggested to the Board that they might add restrictions to the site stating no cranes, etc… whatever the Board wants excluded.

J. Ingeson asked if the second case pending the approval of the first case.

T. Lavelle replied that they are two separate issues.

There were no further questions from the Board. There was no one else to speak in favor of or in opposition to the application and the case was closed.

L. Ordway explained that they will hear the other cases and then go into deliberative sessions later in the meeting when the decision will be made. There can be no further input for the case. The applicant can wait to hear the decision but the written decision will be mailed to them within 14 business days. If granted the applicant cannot proceed until 30 days has passed to allow time for an appeal of the decision.

CONTINUED FROM MARCH 29, 2012 and APRIL 26, 2012

#12-05: A request from Patrick M. Connolly Contracting, LLC, for a variance from Article V, § 220-32I and allow the use of an existing garage for commercial purposes. The garage exists 25.10’ from a residentially used parcel, which requires a 50’ setback. The property is located at 15 Newton Road, Tax Map 66, Lot 28, in the ICR District. The applicant is the property owner of record.

L. Ordway read to the Board a letter from J. Ingerson. The letter stated that J. Ingerson would be voting on both Connolly cases as after careful review of the conflict of interest ordinances it is apparent that there is no conflict. Her decisions will be based on what is presented to the Board as evidence as well as the requirements to meet all five criteria set forth in the ZBA guidelines. Information she has knowledge of by serving on the Planning Board is a matter of public record that everyone has access to.

Present for the hearing was Tim Lavelle, James Lavelle Associates; Michael Gerstein, Phillips, Gerstein & Channen; Donald Connolly and Patrick Connolly.

T. Lavelle offered the following information to the Board:

The property is residential and is in the ICR Zone
They have gone before the Planning Board to start the process of converting it to a commercial site
There is an existing dwelling and an existing new garage
They want to utilize both buildings for commercial purposes
The dwelling would be a showroom for displays of shingles, siding, and such
The garage would be used to park equipment, vehicles and store shingle displays
They would like to use this property to increase the business
The existing garage is not 50’ from the sideline and they will need a variance
They propose to park their trailers in the back of the garage on a paved parking area for motorized vehicles and a gravel area for non-motorized trailers
They may pave the whole area to avoid any issues
The scope of the plan has been tapered down to avoid any issues; in terms of the equipment and such
The property is not occupied right now; they do want a full commercial property
They cannot access the backyard from the other side as there is only 13’ from the lot line, there is an existing well, a septic area near the deck and a large oak tree in the way

D. Connolly stated that they had originally set it up as a residential hoping his son would own it and have an in home business. As that did not pan out they would now like to change it to full commercial.

There was no one to speak in favor of the application.

Ralph Scovotti, 14 Newton Road, was present to speak in opposition to the application. R. Scovotti expressed the following concerns to the Board:

The applicant has run a business out of the site for five years
The first building has been remodeled into offices
The applicant has put up displays and signs
The applicant built the garage without a site plan or proper permit; as residential
They do not have the proper setbacks
The way into the backyard is 55’ from R. Scovotti’s bedroom window
They have many trailers and trucks they bring in every night

Also present was Dan Johnson, Land Surveyor representing R. Scovotti. He asked for clarification of the zone for this site because there are different regulations for residential and commercial.

L. Ordway replied that it is in the ICR zone; integrated commercial and residential.

D. Johnson expressed the following concerns:

The garage was built last November as residential; have the plans have changed quickly that now they want commercial
The setback is only 25’ where 50’ is required; the buffer is not there
The trees are no longer there to buffer the sound of the vehicles
What will the hours of operation be
Why has the applicant not come for a site plan before; he has been using the site commercially for five years
The lot lines he found differ from the lot lines in the applicant’s survey

T. Lavelle refuted, stating the following:

D. Connolly has address the lot lines and not himself; D. Johnsons lot lines are correct, the frontages are 100’ and the back of the lot is 100’
Plans can change quickly; the garage was intended to be an in-home business
The garage went up legally as residential
The dwelling is 13’ from the lot line; most lots in the area are smaller and do not meet the 50’ setback
The property is now looking better
The applicant has owned the property for four years, not five

P. Boniface asked if the house is finished.

D. Connolly replied that it a showroom with a kitchen; no bedrooms. He added that it has been in a state of uncertainty for three years. He has the business office out of his home with a permit.

There were no further questions from the Board. There was no one else to speak in favor of or in opposition to the application and the case was closed.

The Board took a break at 8:20pm and reconvened at 8:30pm.

DELIBERATIONS

CONTINUED FROM MARCH 29, 2012 and APRIL 26, 2012

P. Boniface motioned to grant the request from Patrick M. Connolly, LLC, for an appeal of an administrative decision of the Planning Board that deemed a proposed use to be a Contractor’s Yard and therefore not a permitted use in the ICR District under Article V, §220-32 or 35.G. The property is located at 15 Newton Road, Tax Map 66, Lot 28, in the ICR District. The applicant is the property owner of record; second by J. Ingerson.

The case was opened for discussion.

L. Ordway summarized the case noting the following:

The Planning Board deemed the proposed use by Absolute Roofing to be a contractor’s yard
Pick-up trucks will not be kept on-site; they are for personal use
7’x14’ size trailers
Two dump trucks on site
Waste is usually removed daily; occasionally held over until the next morning
Applicants own D3 excavator, backhoe and a bobcat
D3 and backhoe will be stored at the New England Dragway; only the bobcat will be stored on-site for snow removal
Attorney Gerstein researched other towns contractor’s yard definitions and eluded that equipment would not be registered; most of the applicants equipment is registered

The Board discussed the case further going through the five criteria for a variance:

Granting the variance is not contrary to the public interest: It would not be contrary as there are other commercial businesses in the area.

The spirit of the ordinance is observed: The neighbor’s property is 50’ from the property line; 75’ from house to house. The proposed access road will give the neighbor no privacy; the spirit is not observed.

Substantial justice is done: There is no space between the two properties; it would be harming to the neighbor.

The values of surrounding properties will not be diminished: It would not diminish property values in this area.

Literal enforcement of the ordinance would result in unnecessary hardship: There are no special conditions in this property.

There was no further discussion on the motion and the vote was 0-5-0; denied.

The Board gave the following reasons for the denial:

The spirit of the ordinance would not be observed
There is no hardship in the property

CONTINUED FROM MARCH 29, 2012 and APRIL 26, 2012

T. Fisher motioned to grant the request from Patrick M. Connolly Contracting, LLC, for a variance from Article V, § 220-32I and allow the use of an existing garage for commercial purposes. The garage exists 25.10’ from a residentially used parcel, which requires a 50’ setback. The property is located at 15 Newton Road, Tax Map 66, Lot 28, in the ICR District. The applicant is the property owner of record, second by J. Ingerson.

The case was opened for discussion.

L. Ordway summarized the case noting the following:

The garage permit was obtained for a residential unit
The garage is currently used for business purposes
The proposed use is for a sales office and for displays
R. Scovotti is losing his setback from the property with the proposed use and driveway; 50’ from his bedroom to the proposed driveway

The Board stepped through the requirements for the granting of a variance:

Granting the variance is not contrary to the public interest: The area is ICR; another business would not be contrary to public interest.

The spirit of the ordinance is observed: Without the 50’ setback they would be depriving the neighbor of enjoyment of his property.

Substantial justice is done: By granting the variance they would be damaging R. Scovotti’s way of life.

The values of surrounding properties will not be diminished: There is no evidence that property values would be diminished.

Literal enforcement of the ordinance would result in unnecessary hardship: There is no hardship.

There was no further discussion on the motion and the vote was 1-4-0; L. Ordway, P. Boniface, T. Fisher and J. Allen voted against the variance.

The Board gave the following reasons for the denial:

The variance is contrary to the public interest; taking away the neighbors rights of lawful enjoyment of his property. There is no 50’ buffer
Substantial justice is not done
No hardship in the land

REQUEST FOR REHEARING-NO PUBLIC DISCUSSION-DELIBERATIONS ONLY

#12-07: A request from Jeffrey & Sandra Peabody for a variance from Article III, §220-13B to permit a commercial vehicle, greater than 1-ton capacity, to be parked at a residential parcel. The property is located at 37 Forrest Street, Tax Map 49, Lot 2 in the LDR District. The applicants are the property owners of record.

The Board members reviewed the letter received from Jeffrey and Sandra Peabody.

L. Ordway noted that he may have made an error in judgment in regards to the tractor’s size. He stated that the Board needed to consider the abutting neighbor’s and the fact that the variance goes with the property. He felt the applicants may have misunderstood this point. The applicants also commented in the letter that the last 4 or 5 ZBA meetings have not had a full board present.

The Board reviewed pictures of the tractor trailer and garage sent in by the applicants.

L. Ordway motioned to grant a rehearing, second by J. Allen.

There was no further discussion on the motion and the vote was 4-1-0; T. Fisher voted against the petition.

Other Business/Updates: Misc. Notices, letters, and other Correspondence from Dept. of Building Safety, Planning Department and ZBA

Vote for Officers

J. Ingerson motioned to appoint Larry Ordway as the Chairman for the ZBA, second by J. Allen.

There was no discussion on the motion and the vote was 5-0-0 U/A.

L. Ordway motioned to appoint Joyce Ingerson as vice-chairman of the ZBA.

There was no discussion on the motion and the vote was 5-0-0 U/A.

There is no other business before the Board; the meeting was adjourned at 8:55 P.M.

Respectfully submitted as recorded by Laurie Pagnottaro.

Approved by the Zoning Board of Adjustment on ______________________________________

_______________________________________

Larry Ordway, Chairman