Town of Plaistow Archive - ZBA Minutes 08-28-14

ZBA Minutes 08-28-14

ZONING BOARD OF ADJUSTMENT

August 28, 2014

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

Roll Call: Larry Ordway, Chair

Timothy Fisher, Vice Chair

James Allen,

Paul Boniface, excused

Martha Sumner, Alternate

M. Sumner was appointed as a voting member for this meeting.

Minutes of May 29, 2014 and July 31, 2014 Meetings

L. Ordway noted that the reason that these minutes had not yet been voted on was because there were no applications for the June meeting and there was not a quorum for the July meeting.

T. Fisher moved, second by M. Sumner, to approve the minutes of the May 29, 2014 meeting. There was no discussion on the motion and the vote was 3-0-1 (Sumner abstaining).

T. Fisher moved, second by J. Allen, to approve the minutes of the July 31, 2014 meeting. There was no discussion on the motion and the vote was 1-0-3 (Ordway, Allen and Sumner abstaining).

#14-08: A request from Cliff and Sue Taylor for a variance from Article V, §220-32I to allow a structure to be built 17.3 feet from the rear property line where 25 feet is the minimum required. The property is located at 102 Newton Rd, Tax Map 69, Lot 43 in the ICR District. The applicants are the property owners of record.

Cliff and Sue Taylor, property owners 102 Newton Rd, were present for the application.

S. Taylor explained that they had been before the Board back in December for a 22 foot variance for this same project. She noted that when they laid out the project it just didn’t look right. They were unable to find the pins for the property lines so they decided to get a survey done. The survey revealed that they were 17.3 feet from the rear property line, not the 22 they had originally thought. Ms. Taylor offered that once they discovered the error they re-applied for the correct variance amount based upon the survey.

M. Sumner noted that she remembered the original variance request and the new garage was to be built on the same footprint at the existing garage, but was just a little larger.

L. Ordway recalled that there was a fifteen (15) acre wooded parcel behind this property that belongs to an apartment complex. He noted that it was part of their minimum lot sizing requirements and therefore would never be built out.

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.

L. Ordway noted that there were only four (4) voting members sitting for this meeting. He explained that any motion would require three (3) votes to the affirmative to pass, meaning any tie votes and that motion would be defeated. He explained that the RSAs give any applicant the right to request a continuance until such time as there is a five (5) member board and could do so when their application was called.

It was noted for all present that should they decide to continue with their application and they are unsuccessful the lack of a five (5) member board could not be used as grounds to request a re-hearing.

There was no additional input for this application and the matter was closed.

#14-09: A request from Mario DeNicola for a variance from Article III, §220-9.1 to allow a driveway extension to be built 4 feet from the property line where 15 feet is the minimum required. The property is located at 108 Old County Rd, Tax Map 20, Lot 44 in the MDR District. The applicant is the property owner of record.

Tim Lavelle, Lavelle Associates, was present for the application. It was noted there was a letter of authorization from the property owner in the file, but that property owner Mario DeNicola, was also present.

T. Lavelle explained that following regarding their variance application:

The property owner was rebuilding a house that had been destroyed by fire
The existing driveway was already four (4) feet from the property line and this application was for the part that would be extended to the garage under of the new house
They will be able to re-grade the property for better drainage control and decrease the runoff to the neighbors property

L. Ordway noted that he had visited the property and there was no sign of the existing driveway.

T. Lavelle explained that he located it when he was drawing up the plans for this application. He offered that it had probably been removed to begin re-grading the yard.

L. Ordway asked where the former driveway was in relation to the house the burned.

T. Lavelle replied that it went straight in from the street to the front of the house. He added that many of the existing driveways in the neighborhood were pre-existing this ordinance and do not meet the setback from property lines.

There was discussion regarding the location of the existing driveway and other driveways in the neighborhood.

L. Ordway suggested that there was no way to definitively know where the previous driveway was, since it had been removed.

T. Lavelle reminded that he had provided the Board with a plan that located the existing driveway and was stamped by a licensed land surveyor. He reiterated that the location of the driveway was in keeping with others in the neighborhood.

L. Ordway asked if the new house was constructed on the same footprint as the house that burned.

T. Lavelle noted that they had shifted it away from this property line and made it more parallel to the road for better esthetics. He noted that there had been water problems as this property was somewhat of a “bowl” and collected water. That’s why they were re-grading the property.

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

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

Donald McPheters, 110 Old County Rd offered the following:

He remembered that existing pavement being about four (4) feet from the property line
Mr. DeNicola has always been a good neighbor
As long as the water problem is corrected he has no objection to the variance

T. Lavelle noted that the re-grading of the property would resolve the water issue for Mr. McPheters.

There was a letter of support from Barbara Kirsch, 106 Old County Rd, noted that neither she or her husband had any objection to Mr. DeNicola’s request.

L. Ordway called twice for anyone who may have an objection to the application. There was no one and the matter was closed.

#14-10: A request from Todd Talarico for a variance from Article V, §220-32I to allow a structure to be built 27 feet from the front property line, where 35 feet is the minimum required. The property is located at 29 West Pine St, Tax Map 38, Lot 60 in the MDR District. The applicant is the property owner of record.

Todd Talarico, property owner 29 West Pine Street, was present for the application.

T. Talarico offered that following in support of his variance application:

He would like to construct a new porch, with steps to the street and a ramp off to the side
The proposed porch would be 17.6’ off the front property line
There is an existing set of steps that are falling apart
The new porch wouldn’t extend any closer to the front property line than they existing steps, but the side-to-side footprint was larger

L. Ordway asked if the porch would be constructed of pressure treated wood. It was confirmed that it would be.

L. Ordway asked if the Board had any questions.

T. Fisher questioned a “proposed addition” note on the plans.

T. Talarico explained that these same plans had been used for a former addition building permit application. He noted that addition had already been built.

L. Ordway asked if there was anyone speaking in favor of, or in opposition to the application. There was no one and the matter was closed.

#14-11: A request from Cumberland Farms for a variance from Article IX, §220-61 to allow eight digital/LED fuel pump topper signs. The property is located at 142 Plaistow Rd, Tax Map 29, Lot 21 in the CI District. The applicants are the property owners of record.

Carolyn Parker, Carolyn A. Parker Consulting, was present for the application. It was noted there was a letter of authorization from Cumberland Farms in the file.

C. Parker offered the following in support of the Cumberland Farms variance application:

In May of 2013 Cumberland Farms started the “Smart Pay” program that offers members a $0.10/gallon discount of gas
Most stores have an LED main (pylon) sign that alternates between the regular price and the Smart Pay discounted price. This store does not have that type of main sign
The request was to have an LED sign on top each pump that would alternate every eight (8) seconds between the two prices, which could be operated from within the store
Remote operation of the sign would prevent having to shut down the lanes, one at a time, so the manual signs can be changed by hand.
Employees would not have to leave the store in inclement weather to manually change the signs
The store would be safer as there would always be at least two employees in the store at all times
The pump topper signs would not be a distraction to drivers because they are at least 50 feet from the road
The “scroller” type of sign, which are operated from inside the store and are on the pylon cannot be made small enough to be pump toppers

L. Ordway noted that the concept of an LED sign means television screen to him.

C. Parker explained that LED signs are not TV screens but are made up of individual lights. She noted they can be dimmed using the example of ten (10) being the brightest and that some towns have set a maximum brightness level. Ms. Parker noted that level cannot be set below a two (2) as the LED lights burn out.

L. Ordway asked why this wouldn’t be considered a flashing sign.

C. Parker offered to show a video that was on her phone.

There was a discussion of whether or not that would be acceptable. It was noted that the phone would not be able to be retained for the record. C. Parker offered to forward a DVD of the video to the Board to be retained in the file. It was determined that if the evidence was not available to be placed in the file at the meeting it was not admissible.

C. Parker offered that she wasn’t debating that this was s digital sign, she was just suggesting that this two (2) square foot sign was not the type of sign that the ordinance was intended to prohibit.

J. Allen asked how many signs there would be.

C. Parker noted there are eight (8) pumps and they would like to put one on each pump.

J. Allen added that this not just a two (2) square foot sign, but a two (2) square foot sign times eight (8).

L. Ordway questioned why the alternation would be set at eight (8) seconds instead of a set number of minutes.

C. Parker replied that it would defeat the purpose, which was to get those non-members into the store to question the difference in the pricing. She added the following:

The application does not diminish the surrounding property values
Cheaper prices are in the public’s interest
They have a unique need to display two prices and the existing antiquated technology does not address that need

L. Ordway asked if the Board decided to not allow the sign to alternate was there an alternative.

C. Parker noted that they would just have the sign be stationary with the regular price.

M. Sumner offered that she knew why this ordinance was in place, it was to prevent such atrocities like on the Haverhill line. She added that she didn’t see this application as being in the same category. M. Sumner likened this to the Powerball sign, which is inside the glass.

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.

#14-12: A request from Joni Boggiatto for a special exception under Article X, all sections, to allow a home occupation, namely an esthetics and skincare business. The property is located at 42 Newton Rd, Tax Map 67, Lot 2 in the ICR District. John Boggiatto is the property owner of record.

Joni Boggiatto, applicant, and John Boggiatto, property owner, were present for the application.

Joni Boggiatto explained that she was a licensed skin care and make-up consultant and would like to have a small home studio.

The criteria for the granting of a home occupation were reviewed noting the following:

The applicant is applying as a personal services business
There is nothing that would emit any noise, fumes, dust or other noxious or injurious problems
The property is being used with the owner’s written permission
The home studio would occupy 4% of the living space
There is no exterior storage
No sign is planned at this time
The business would be a sole proprietorship and there are no other employees
There is sufficient off-street parking for 4-6 vehicles but the intent is for clients to be there one at a time
No deliveries, other than normal household deliveries are anticipated
There are no restrictions in the deed
This is not a condo, therefore permission from a condo association is not needed
This will be the only home occupation at this residence

L. Ordway noted that the business was subject to periodic inspections by the Building Inspector and the home occupation needed to be renewed every three (3) years.

#14-13: A request from Ty Vitale for a variance from Article V, §220-32I to allow a structure to be built 12.6 feet from the front property line where 30 feet is the minimum required. The property is located at 8 Park Ave, Tax Map 41, Lot 59 in the VC District. The applicant is the property owner of record.

Ty Vitale, property owner 8 Park Ave, was present for the application.

L. Ordway noted he had trouble figuring out which building this was because there is no number on the house.

Ty Vitale offered the following in support of his variance application:

He would like to put a garage on the front of his building that would be in the same line as the existing structure
The building currently was a five-family building
He offered pictures of his property

L. Ordway asked if this would be a one (1) or two (2) car garage.

T. Vitale replied that construction details were not yet finalized and he was having someone look into the possibilities.

T. Fisher asked if this would be a multi-story structure.

T. Vitale answered that was still part of the discussion of possibilities. He said he was remaining flexible and weighing out all options. Mr. Vitale noted that he was looking at the possibility of expanding the second floor apartment and much of the decisions would depend on costs.

T. Fisher asked about the door on the third floor.

T. Vitale said he wasn’t sure how that came about as it was there when he purchased the house. He suggested it may have been a second means of egress or it may have been a window that was just expanded over time. He noted that the house was built in the 1930’s and chopped up over time to its current configuration.

The chairman called for a break at 8:05 p.m. The meeting was called back to order at 8:10 p.m.

DELIBERATIONS

L. Ordway read the legal notice in case number #14-08.

T. Fisher moved, second by L. Ordway, to grant the variance request for 102 Newton Road as stated in the legal notice.

L. Ordway summarized the application noting the following:

This was the applicants second attempt to build this garage after finding an error in their measurements
The previous variance in December was granted and the application has not really changed, the numbers were just slightly off
The applicant spent the money to have a survey done because they were uncertain of their measurements
There is ~15 acres of woods behind the property that will never be built out at long as the apartment buildings are there

There was no additional discussion on the application. The vote was 4-0-0 U/A.

L. Ordway read the legal notice for case #14-09.

J. Allen moved, second by M. Sumner, to grant the variance request for 108 Old County Rd as stated in the legal notice.

L. Ordway summarized the application noting the following:

The new house was being constructed to replace one that had burned
The previous driveway was ~4 feet from the property line, though it wasn’t proven
The additional pavement was needed to be able to turn into the three-car garage under of the new house

T. Fisher noted that this request for the extension of the existing driveway to allow access to the garage under.

L. Ordway added that he didn’t see this as a major loss and the closest abutter at 110 Old County Rd didn’t’ have any issues.

J. Allen noted the only issue the abutter had was with water runoff.

The Board stepped through the criteria for the granting of a variance noting the following:

This application is not contrary to the public interest as the public doesn’t have an interest in a private driveway
The spirit of the ordinance is separation, since this was a preexisting driveway there is no change
There is substantial justice in granting the variance to allow for better access
The surrounding property values will not be affected
Literal enforcement of the ordinance would result in a hardship as it would make it more difficult to turn into the garages

There was no additional discussion on the motion. The vote was 4-0-0 U/A.

L. Ordway read the legal notice for case #14-10.

T. Fisher moved, second by J. Allen, to grant the variance request for 29 West Pine St as stated in the legal notice.

L. Ordway summarized the application noting the following:

The key point is that this new structure will be the at the same frontage as the existing steps, which is 27 feet from the property line

The Board stepped through the criteria for the granting of a variance noting the following:

There is no public interest in the location of a residential porch, there is more interest in the fact that the frontage doesn’t change
The spirit of the ordinance isn’t violated. The ramp on the side could be, though it wasn’t specifically stated, for elderly access which is a benefit to the Town
There is substantial justice in allowing the property owner to make good use of the property
There is no diminishment of surrounding property values, it could even be said that there may be a marginal increased with this improvement
The hardship is that the building is already located where it is and can’t be pushed back the seven feet to have the porch meet the setback

There was no additional discussion on the motion. The vote was 4-0-0 U/A.

L. Ordway read the legal notice for case #14-11.

M. Sumner moved, second by T. Fisher, to grant the variance request for 142 Plaistow Rd as stated in the legal notice.

L. Ordway summarized the application noting the following:

The application is for 8 LED pump topper sign
The digital signs would display the regular price and change every eight (8) seconds to display the Smart Pay program price
The digital sign would replace the need for manual changing of the signs

L. Ordway offered a suggestion that the motion be amended to include the condition that they not be allowed to alternate. He noted that many in town are still against of digital signage for fear they will downgrade the quality of life

M. Sumner amended her motion to include the condition prohibiting the sign from alternating. T. Fisher seconds the amended motion.

J. Allen suggested that additional restrictions be made to keep the intensity of the lighting to a level 2.

There was a discussion as to how this would be enforceable. It was suggested that the Building Inspector would have to make periodic checks on the settings.

L. Ordway suggested that brighter might be better as the price would be visible from a distance before approaching the pumps. It was noted that there are two (2) pylon signs on the property that display the price.

T. Fisher agreed with setting a lower intensity level because it is a digital sign and a little light can go a long way on a sign.

There was additional discussion regarding how the intensity of the light could be monitored. There was concern that the lights could be set at a 10 but reported to be at a 2 level. It was suggested that it was time to allow for some digital signage in Plaistow.

T. Fisher questioned the precedent that would be set with the granting of this sign.

M. Sumner noted that the Building Inspector had enough on his plate without having to monitor these levels. She added that she wouldn’t know what a level 2 looked like.

T. Fisher noted that there was no intensity with the signage as it is today.

M. Sumner amended her motion again to include an additional condition that the brightness level of the LED signs be maintained at level 2. T. Fisher seconds the amended motion.

There is no additional discussion on the twice amended motion. The vote was 4-0-0 U/A.

L. Ordway read the legal notice for case #14-12.

T. Fisher moved, second by M. Sumner, to grant the special exception request for 42 Newton Rd as stated in the legal notice.

L. Ordway summarized the application noting the following:

The proposed use is an esthetics/skin care business
The applicant would be the sole proprietor and there would be no employees
The business use would occupy 4% of the living space
There is no sign planned for
All other requirements appear to be met

There was no additional discussion on the motion. The vote was 4-0-0 U/A.

L. Ordway read the legal notice for case #14-13.

J. Allen moved, second by M. Sumner, to grant the variance request for 8 Park Ave as stated in the legal notice.

L. Ordway summarized the application noting the following:

The proposed garage would be built at the same line as the house
It has not yet been determined if the garage will be one (1) or two (2) car; or single or multi-storied
The existing structure is 12.6 feet from the property line

J. Allen questioned if a new garage would be more esthetically appealing than the existing siding

L. Ordway noted that the building is not a real beauty.

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

There is a public interest in that this is an historic area of the town and this will enhance the look of this building and possibly improve the neighborhood
The spirit of the ordinance is not violated as the neighborhood would be improved with this garage. Additionally the building is only being squared off
There is substantial justice in granting the variance with the enhancement of the property
The values of surrounding properties should not be diminished by this improvement. Values may minimally increase with this improvement
The hardship is that the building is existing and cannot be moved back to meet the set back

There was discussion as to whether or not to restrict the building to a single story. It was noted that there is currently a car parked in the intended location of the garage so there wouldn’t be much of a difference putting this structure there.

There was no additional discussion on the motion. The vote was 3-1-0 (Allen dissenting) and the motion passed.

Other Business

Law Lecture Series training opportunity, information to be emailed to members
Next meeting review of Zoning Board of Adjustment By-Laws and possible changes in application form

The meeting was adjourned at 8:43 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant