Town of Plaistow Archive - ZBA Minutes 10-30-14

ZBA Minutes 10-30-14

ZONING BOARD OF ADJUSTMENT

October 30, 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, absent

Martha Sumner, Alternate

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

Minutes of the September 25, 2014 Meeting

L. Ordway moved, second by T. Fisher, to approve the minutes of the September 25, 2014 meeting. There was no discussion on the motion and the vote was 3-0-1 (Sumner abstaining).

L. Ordway noted that there were only four (4) voting members sitting on the Board for this meeting. He explained the significance of the voting in these matters in that a split vote would defeat the motion. He noted that all applicants had the right to request a continuance to a full Board.

D. Voss added that should an applicant move forward with their presentation at this meeting and are denied, they cannot use the lack of a five (5) member board as grounds to request a re-hearing.

REHEARING (Initial hearing 08/28/14, re-hearing request granted 09/25/14)

#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 was present representing Cumberland Farms.

C. Parker requested an explanation of why she was being brought back to the Board on this matter.

L. Ordway explained that there was a request filed by the Plaistow Board of Selectmen (BOS) requested that the matter be reheard. He noted that their letter was persuasive enough that the Board felt the rehearing should be granted.

C. Parker noted that she wanted to make a change to her application. She added that she got the sense at the first hearing that if she was requesting the sign to alternate prices that she would not be granted. Therefore, she was now requesting a static LED pump topper price sign.

C. Parker offered that following in support of the application:

The numbers would only change when there was a change in the price, which was usually no more than once a day
Having the ability to change the price from inside the store would improve safety for their employees
No lanes would have to be closed while prices were being changed
Traffic enters the lot from two directions and these signs will be more visible
Cumberland Farms does have records of cars and people being hit and injured under the current conditions
The current technology used for the pylon signs cannot be made small enough for the price topper signs
There would never be anything but price information shown on these signs
The signs would not be large enough or bright enough to impact traffic as they will be set 55’ to 75’ off the roadways
The signs will only be seen by people at the pumps

L. Ordway questioned if the intent was to also change the pylon signs.

C. Parker noted that the pylon signs would be staying as is.

The brightness of the signs can be set as high as a level 10, Cumberland Farms usually sets their signs at level 6. They can be set as low as level 2, but anything lower would make the light burn out
The State requires pricing information be posted on each pump. They do not require that it be LED, but they do require the information

L. Ordway asked if Cumberland Farms would be agreeable to limiting the number of price changes to once a day.

T. Fisher asked what time the prices are generally changed each day.

C. Parker replied that she did not know if there was a specific time each day.

L. Ordway asked for anyone representing the Board of Selectmen as they were the entity to request the re-hearing.

Steve Ranlett, Member Plaistow Board of Selectmen and Selectmen’s Representative to the Planning Board was present.

S. Ranlett read a letter from the Plaistow Planning Board which noted their objections and interpretations of the variance criteria:

The purpose and intent of the voters of Plaistow in 2002 was clear to prohibit digital signs
The variance is contrary to the public interest because it would unduly and to a marked degree violate the basic zoning objectives of the zoning ordinance
The variance is not consistent with the spirit and intent of the ordinance in that the Town’s ordinance contains a restriction against digital signs and the ZBA has no authority to change the Zoning Ordinance. The ZBA would be violating the spirit and intent of the ordinance by allowing this type of sign
The Planning Board feels that any loss to the Applicant that is not outweighed by a gain to the general public is an injustice
While there may be conflicting evidence and dueling experts on the point of whether or not the surrounding property values may be diminished it is the ZBA’s job to sift through that testimony and evidence
With reference to hardship, the Planning Board would argue that the restriction on this property is necessary in order to give full effect of the purpose of the ordinance. Furthermore, relief cannot be granted to this property without frustrating the purpose of the ordinance. The Applicant’s claim of a unique need to display two prices for gasoline is based on a goal of higher profits for Cumberland Farms, not on any special conditions of this particular property

S. Ranlett noted that the Board of Selectmen had additional concerns about the precedent that allowing these signs would create throughout the commercial district, perhaps opening the floodgates for digital signs.

C. Parker expressed frustration over not being given a copy of the Planning Board letter in advance to be able to prepare her rebuttal.

L. Ordway noted that the letter was directed to the Zoning Board.

C. Parker offered the following as evidence and rebuttal:

The restriction on digital signs was a reaction to a very large digital sign that was installed in Haverhill. The sign had messages that some may find silly, but that shouldn’t be the reason to restrict these types of signs
There would not be any decrease in surrounding property values because the use of the property as a gas station and convenience store will remain the same
Granting the variance will be beneficial to the public interest because using electronic signs helps eliminate human error and environmental hazards such as price sign placards blowing into the street
The property has a unique setting in that it is a gas station and needs to identify gas prices. The current price toppers are manual and need to be changed by employees on a daily basis. They need to shut down lanes in order to change the prices. The prices on the main pylon sign can be changed from inside the store and the same purpose will be accomplished with the LED signs. The stated purpose of the zoning ordinance is for the purpose of promoting the health, safety, morals, prosperity, convenience and general welfare of the Town, and to secure safety from fire, panic and other dangers, provide adequate areas between buildings and various rights-of-way, preserve the rural charm now attached to the town, and promote good civic design and arrangement, the wise and efficient expenditure of public funds, and the adequate provision of public utilities and other public requirements, and by other means
The proposal is the removal of the manual pump toppers advertising fuel pricing and the installation of LED pump (toppers). The installation of LED pump toppers is so that the price can be changed from inside the building and there will be no need to close down lanes, thus improving safety. The relief in no way derogates from the purpose or intent of the ordinance. The installation of the LED pump toppers is merely a change in the means by which fuel prices are advertised
There would be no injury to the rights of the public as we are only modifying site signage, the size and location stays the same
Granting the variance would do substantial justice because the LED pump toppers would have minimal impact to the site and surrounding properties based on their size and intensity. The location and size of the pump toppers will remain the same, they will just replace the existing manual pump toppers
If the variance were granted the spirit and intent of the ordinance would be observed because the current use, a gas station/convenience store is a permitted use. Manual changeable copy signs, which are permitted within Plaistow, require personnel to physically change their copy, in rainy, icy or windy conditions, which can be dangerous. Lanes also need to be closed and there have been reports of accidents associated with the price changing process as it currently is. The installation of an LED pump topper reduces liability as they can be changed from inside the business. The ordinance is meant to not allow bright flashing signs, these signs are not what the ordinance intends to restrict

C. Parker noted that other businesses have methods to draw attention to their business, noting the red LED stripe on the Irving canopy.

C. Parker expressed concern that because the opposition was coming from the Planning Board and the Board of Selectmen that she wouldn’t be given a chance.

L. Ordway noted that her case would be given the same weight as any other case that come before the Board.

L. Ordway also noted for the Board of Selectmen that while the Board frequently steps through each of the five (5) variance criteria in a formal manner, there is no legal requirement that they do so.

S. Ranlett offered that they Board of Selectmen and Planning Board were not here to just say no, you can’t give them a variance. They have brought forth their objections for the Board to consider.

C. Parker added that she brought evidence in the first time they were before the Board and was approved. She suggested that the hardship was that the inability to move forward with new technology

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

L. Ordway noted that procedurally all matters before the Board would be heard, then the Board may/not take a short break before going into deliberations. He added that all were welcome to stay for that process, but once a matter was closed no further input was allowed.

#14-17: A request from Blue Diamond Real Estate Group, LLC for a variance from Article V, Table 220-32B to allow self storage facility in the Commercial I District, which is not a permitted use. The property is located at 95A Plaistow Rd, Tax Map 28, Lot 23-2 in the CI District. The property owner of record is Scott Building Twenty, LLC

Steve Vazza and Derek Holt, Blue Diamond Real Estate Group, LLC, were present for the application.

It was noted for the record that there was a letter of authorization from the property owners for the application to proceed.

S. Vazza offered that they would like to use part of the building located at 95A Plaistow Road to provide climate-controlled self storage units.

There was discussion of the layout of the building, the existing tenants and which unit would be used for the self storage business. It was noted that the intent was to have a two-tiered set up in part of the building and three-tiered in another part. Both areas would be serviced via an elevator. It was also noted that there would be no exterior changes to the building other than cosmetic.

L. Ordway asked for the history of the building.

S. Vazza noted that there used to be a moving and storage business located in the unit and that the parcel was formerly zoned as Industrial, which allowed for self storage use. He added that this was a complimentary product in the market and a lesser use than many of the permitted commercial uses such as retail.

L. Ordway asked what the hours of operation would be.

S. Vazza replied that there would be personnel on duty from 7:00 a.m. to 7:00 p.m., but renters would have 24 hour card access. He noted that people liked these climate controlled units for the security that they offer. Mr. Vazza added that the trips per day were far less than a retail use.

T. Fisher asked where the access to the building would be.

S. Vazza noted that the office would be from the front and the loading area would be on the side.

T. Fisher asked if there would be additional lighting.

J. Allen asked if there would be any fencing around the area.

S. Vazza noted that he had not talked with the owner of the other portion of the building about fencing yet.

T. Fisher asked if there would be any outside storage.

S. Vazza answered that there hadn’t been any decisions made about outside storage.

L. Ordway asked if they could live with a restriction in the variance prohibiting outside storage.

S. Vazza questioned why the Board would want to restrict outside storage. He added that he didn’t want to be precluded from outside storage if there was a need.

L. Ordway offered that some storage businesses store boats and RVs in the winter time.

S. Vazza replied they didn’t think they would be storage boats and RVs, but he would like the option to store PODS if that’s the way they decided to go.

There was discussion on what PODS are, which they were noted to be mobile storage containers, and where they might be placed on the parcel.

L. Ordway asked if the Board had any additional questions, 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.

Ted Cropper, Car Parts Distributors, 95A Plaistow Rd, noted that this was the first time he had heard anything about the possibility of PODS being stored on the property. He noted that his employees made use of the parking and that they had trucks moving in and out all the time. He wanted to make sure that the PODS would not impede any aspect of his business, his employee parking or truck maneuverability. Mr. Cropper noted that his business currently employs about 50 people.

Mike Baron, representing the other condo owner (with written permission) noted that he had similar concerns regarding the PODS and whether or not they would take up parking spaces used by other businesses. He noted that a car parked that blocked another car, or a truck, could easily be moved, but a POD was more difficult.

L. Ordway asked how long PODS would remain on the site.

S. Vazza noted that it could be as little as a day or as long as a month depending on the needs of the renter.

There was additional discussion about the possibility of PODS. It was noted for all that if and where PODS could be placed was a matter that should be addressed by the Planning Board. The Zoning Board was only to review the request for to allow a self-storage use.

Joe Mendola, president of the self storage business looking to use the building, noted that this property was once zoned Industrial, which allowed of self storage use. He added that the tax card still shows the property zoned that way. Mr. Mendoza noted that nearly all the permitted commercial uses currently allowed were a higher use of the property that what they were proposing. He added that there would be minimal traffic impact and that a POD would use the same amount of space as a car that might be parked there.

S. Vazza added that he wasn’t here asking the Board to approve the PODS but only to allow the self storage use. He didn’t want the application to be hung up on the PODS.

It was once again noted that all who had concerns over the PODS and related parking issues would have their chance to address them to the Planning Board as the applicant still has to go back there to amend the site plan.

There was no additional input and the matter was closed.

#14-18: A request from Lori Buswell for a variance from Article V, Table 220-32I to allow a structure to be built within 24 feet of the property line, where 30 feet is the minimum required. The property is located at 163 Main St, Tax Map 41, Lot 28 in the VC District. The applicant is the property owner of record.

Tom Parker, contractor, was present for the application.

It was noted that there was a letter of authorization from the property owner allowing Mr. Parker to represent her.

T. Parker noted that following in support of the application:

The intent was to put a small front porch on the house that would replace one that had been taken down a 7-8 years ago
The original setback is no longer grandfathered because the porch has been down for more than a year
The house itself does not meet the front setback
The size of the porch would be 4’ x 8’

L. Ordway asked if the Board had any questions, there were none. He asked if there was anyone speaking in favor of the application.

Dennis Marcotte, 165 Main Street, noted that he was probably the person who would be most affected by the porch and he had no objections.

L. Ordway asked if there was anyone speaking in opposition. There was no one and the matter was closed.

DELIBERATIONS

REHEARING (Initial hearing 08/28/14, re-hearing request granted 09/25/14)

L. Ordway read the legal notice

T. Fisher moved, second by M. Sumner, to grant the variance to allow 8 LED pump toppers at 142 Plaistow Road as stated in the legal notice.

L. Ordway summarized the application noting the following:

This was a re-hearing of a matter previously decided by the Board
The request is for 8 LED pump topper signs which are not currently permitted in the zoning ordinances

J. Allen noted that the pump toppers are double sided and that there were 3 prices on each pump. He questioned if this would actually be a request for 48 signs (3 per each of 8 pumps, double-sided). It was noted that the prices were all contained on the same sign and the double-sided nature of the sign only counted as a single sign.

The Board stepped through the variance criteria noting the following:

The public is only interested in knowing what the price of the gasoline is. It is a State requirement that the price be posted on the top of the pump. The public is interested in not having huge digital signs like the one in Haverhill (Mortgage Specialist)

T. Fisher noted that these signs would only have numbers on them.

L. Ordway related the change in sign technology to the change from manual cash registers and wind-up alarm clocks to electronic cash registers and digital clocks.

The spirit of the ordinance is to prevent the spread of digital signs. These signs would have price information only, no advertising which shouldn’t cause the spread of digital signs. It was noted that WalMart shouldn’t be coming in for an application to allow a digital sign based on this decision, but Irving might
The ability for Cumberland Farms to change the price quickly and easily might be a benefit to the public, not an injustice
The pump toppers were not seen as something that would decrease surrounding property values
The hardship is what was in the mind of the voters in voting to prohibit digital sign to prevent large intrusive digital signage, which also prevented this type of signage

T. Fisher noted that if you look at a gas pump, nearly the entire operations of it are digitized from the price, to the gallons, to the card reader for payment.

M. Sumner agreed noting it was all part of the pump itself.

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

L. Ordway read the legal notice

T. Fisher moved, second by L. Ordway, to grant the variance to allow self storage use at 95A Plaistow Road as stated in the legal notice.

L. Ordway summarized the application noting the following:

50% of the now vacant building would be used for self-storage
The discussion got a little off track with the question of the PODS, which is a matter that abutters can address with the Planning Board
The property was formerly zoned Industrial which allowed for storage units
There was formerly a moving and storage company located on the parcel

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

There would be benefit to the public interest because this would be a less intensive use than other permitted commercial uses
The application is not contrary to the spirit and intent of the ordinance as this was a lesser use than some commercial uses and it was better to have the building occupied
There would definitely be an injustice in not granting the variance and leaving the building unoccupied. The public also benefits from the availability of additional storage units
The building being occupied could increase property values, not diminish them
The hardship is in the building owners trying to find compatible tenants, this will put the building to good use

M. Sumner noted that building had been empty a long time.

T. Fisher expressed concern that there might be detrimental impact to the existing business that currently provides 50 jobs. He noted that wasn’t something that could be considered in the variance criteria.

M. Sumner offered that she wished she had asked about the security that would be provided with the 24/7 access to the units.

J. Allen noted that a good truck driver will know the site and know how to maneuver around it.

T. Fisher added that would have to be considered by the Planning Board.

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

L. Ordway read the legal notice

J. Allen moved, second by T. Fisher, to grant the variance to allow a structure to be built within 24 feet of the front property line as stated in the legal notice.

L. Ordway summarized the application noting the following:

The proposal was for a new porch to replace one that had been taken down years ago
Most properties in this area have a setback issue with the location of the house
24 feet is greater than many existing properties have for a current setback

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

The application is not contrary to the public interest which would be noise and heavy traffic or accidents in the area, a 6 foot variance is not a big deal
The request is to replace something that previously existed so it is not contrary to the spirit and intent of the ordinance
There would be an injustice in not granting the request as it is only replacing something that previously existed
The porch will improve the property value of this house, which may improve the property values of other houses, but it will not diminish their value
The hardship is there is no access to the front of this house without the porch

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

There was no additional business before the Board.

The meeting was adjourned at 8:32 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant