TOWN OF SUNAPEE
ZONING BOARD OF ADJUSTMENT
MARCH 11, 2010
PRESENT: Peter Urbach, Chairman; Alex Kish, Vice-Chairman; Harry Gazelle; James Lyons; Ed Frothingham, Alternate; Charles Balyeat, Alternate; Roger Landry, Zoning Administrator.
ALSO PRESENT: George Pellettieri; Bernie Dunbar; Joan Pankhurst; Charlotte Brown; Donna Davis; Mary Hillier; Kay Yeagley; Mark Barselle; Steve Marshall; Ryan Crawford; Michael Mayo; William Larrow; Friedrich Moeckel; Rich Hamm; Chris Kessler.
ABSENT: Bennie Cooper, Alternate.
Chairman Urbach called the meeting to order at 7:00.
Minutes of Jan. 14: Motion by Mr. Gazelle, seconded by Mr. Balyeat, to approve the minutes as presented. The motion passed unanimously.
Administrative matters: Mr. Landry apprised the board on the most recent planning board meeting and reviewed the cases.
Chairman Urbach suggested the board appoint Mr. Gazelle and himself as alternates in order to serve in the event of a rehearing/appeal of case 10-01. They will resign as alternates in the event there is no rehearing or after the rehearing/appeal. Mr. Kish, Mr. Lyons, Mr. Balyeat and Mr. Frothingham will also serve, as they are current members or alternates who will continue to serve on the next board. Motion by Mr. Balyeat, seconded by Mr. Lyons, to appoint Chairman Urbach and Mr. Gazelle as alternates. The motion passed unanimously.
CASE 10-01 MAP 104 LOT 20 DONNA DAVIS, 15 PROSPECT HILL ROAD, SEEKING APPROVAL OF A SPECIAL EXCEPTION AS PROVIDED FOR IN ARTICLE IV SECTION 4.10 TO CONTINUE TO OPERATE AN AUTOMOBILE AND MARINE RECONDITIONING SERVICE AND WHOLESALE AUTO UNDER THE PROVISIONS OF A HOME BUSINESS.
Atty. Friedrich Moeckel, counsel for Ms. Davis and Mr. Larrow, presented the case. Mr. Moeckel presented the board with a letter which he had prepared on the case. Mr. Moeckel stated that Mr. Larrow first approached the town regarding his business in 1995 when he applied for and received a building permit for a detached garage. Mr. Moeckel stated Mr. Larrow then applied for and received a wholesale dealer license, for which Mr. Moeckel said the town was required to provide written documentation that a home occupation was permitted on the property. Mr. Moeckel said the use was permitted as a home occupation according to zoning ordinance of 1995 and cited the following: “All uses not expressly prohibited are permitted.” Mr. Moeckel said the documents he
has submitted to the board have been on file with the town. Consequently, Mr. Moeckel feels that a home occupation was established before the change in the zoning ordinance and is, in his opinion, grandfathered in as a home occupation.
Chairman Urbach wondered the relevance of the argument as the board has an application for a special exception to operate a home business before them and Mr. Moeckel is stating that an application for a home business should never have been filed in the first place.
Mr. Moeckel stated that the only reason Ms. Davis had to file for a special exception is that she was the recipient of a cease and desist order. He said there was no reason for the town to file a cease and desist order and feels this is simply a misunderstanding. He feels that the decisions made in 1995 should stand. Mr. Moeckel said that even if Ms. Davis and Mr. Larrow were applying to the town today for a home occupation, their business would be permitted under the current zoning ordinance.
Mr. Landry said Mr. Larrow’s business is not a home occupation, as he is not selling things made in the home, but rather constitutes a home business. Chairman Urbach pointed out that the application is coming in under the provisions for a home business and the board must deal with it as such. He added that the correctness of the cease and desist order is not before the board. Mr. Moeckel felt the correctness of the cease and desist order is before the board. Mr. Landry pointed out that the 30 day period for filing an appeal on the cease and desist order has passed. Mr. Moeckel said the town can take the property owners to court and risk dealing with a countersuit for malicious prosecution.
Mr. Gazelle reiterated that the application is a request for a special exception for a home business and should be dealt with as such. Mr. Moeckel said the board should not deal with a request for a special exception. Chairman Urbach pointed out that a home business is not permitted by right in a residential district. Mr. Moeckel insisted that Mr. Larrow’s business is a home occupation according to the 1996 zoning ordinance. Mr. Landry said that a statement of property usage was never filed. Mr. Moeckel said it was. Mr. Landry said Mr. Larrow never came back to file a statement of property usage; he said the paperwork shown by Mr. Moeckel is not a statement of property usage and that Mr. Larrow’s business has grown substantially since it began.
Mr. Landry explained that a written complaint was received regarding the property; the selectboard via the town manager requested Mr. Landry look into it. The cease and desist order was filed on January 14 with a 30 day appeal period. Mr. Larrow’s wholesale dealer license runs out in March so it was determined that the application would go to the planning board first in an effort to expedite the process. The planning board did not make a decision on the case.
Mr. Larrow asked Mr. Landry to speak to why the planning board would not make a decision. Mr. Landry said the planning board did not feel that the kind of business which Mr. Larrow operates belongs in the residential district and there was concern about Northeast Towing trucks parked in the yard. Chairman Urbach stated that he gathered from the minutes that the main question facing the planning board was whether Mr. Larrow’s business constitutes a home business.
Mr. Moeckel said that if a business is grandfathered it can also expand. Mr. Kish said that Mr. Moeckel’s argument is ill posed, as when the business does grow it must do so within the current zoning ordinance. Mr. Kish said a business is not grandfathered in perpetuity to do anything it wants. Mr. Moeckel feels that if a business expands within the same field it is a permitted expansion.
Addressing the issue of expansion, Mr. Larrow said that originally all he did was buy vehicles at auction, recondition and resell them. He said his business expanded by word of mouth. Mr. Frothingham asked how the business expanded into marine repair. Mr. Larrow said that also was by word of mouth. Mr. Landry asked if Ed Andersen works for Mr. Larrow. Mr. Larrow said Ed Andersen works at his shop as a contractor, not an employee, and receives a 1099. Chairman Urbach said that the definition of a home business permits an employee, so it is not an issue whether Mr. Larrow has an employee or not. Mr. Larrow said that a 1099 is not necessarily issued to an employee but can be issued to a contractor. Chairman Urbach said he does not see the relevance as Mr.
Larrow is applying for a special exception to operate a home business and a home business permits an employee.
Mr. Moeckel said there is no reason for his clients to request a special exception. He requested the board table the application until town counsel has reviewed his correspondence with the board. Chairman Urbach asked Mr. Moeckel what action he thinks the board could take other than table the application. Mr. Moeckel replied that the board should vote to determine the special exception as unnecessary. Chairman Urbach stated he was not prepared to go that route without the advice of town counsel. Chairman Urbach suggested the matter be tabled until town counsel had a chance to review it.
Motion by Mr. Lyons, seconded by Mr. Balyeat, to table the case until the April 8 zoning board meeting, subject to town counsel review. The motion passed unanimously.
CASE 10-02 MAP 129 LOT 29 CHARLES AND ELIZABETH D’AMOUR, SEEKING RELIEF IN THE FORM OF A VARIANCE OF ARTICLE III SECTION 3.40-J TO CONSTRUCT A WALL EXCEEDING 42 INCHES IN HEIGHT WITHIN THE 50 FOOT LAKEFRONT SETBACK.
George Pellettieri and Chris Kessler from Pelletieri Associates presented the case. Mr. Pelletieri said he has been working with owners to develop site. The homeowners have concerns about the stonewall, which has been repaired; the repairs have not resulted in a permanent fix. The plan should indicate a 6.75 foot retaining wall. The existing retaining wall is failing. Mr. Pelletieri said small repairs will not do the trick; the wall needs to be rebuilt. He also feels restructuring would be appropriate.
Mr. Pelletieri said that DES gave approval for work and he submitted that approval to that board. Mr. Kessler said they would like to reconstruct a single wall within the footprint of the old wall. The wall in its current shape is square with stairs going up the middle. The proposal is to rebuild the wall in a curved configuration with no break in the middle. The amount of coverage proposed is less than what currently exists. The wall currently covers 350 square feet; the proposed wall will be 320 square feet. They will use pervious material on the patio and walkway and introduce native ground cover and shrubs.
Mr. Kessler said the wall height will not change, only the configuration will. The reason for the change in configuration is to gain strength in the wall. Mr. Gazelle asked the terrace depth; Mr. Kessler said it is about 5.5 feet. Mr. Gazelle inquired about building an additional wall behind the existing one further from the lake. Mr. Kessler said more landform would have to be disturbed through that method. Mr. Pelletieri said from a structural standpoint two walls can be less stable than a single well-constructed wall. Mr. Kish said he thought there would be a safety concern with a wall of six or seven feet; Mr. Pelletieri said the owners are comfortable with the height as is.
Motion by Mr. Lyons, seconded by Mr. Balyeat, to approve the variance of Article III Section 3.40-J to construct a wall exceeding 42 inches in height (6.9 inches) within the 50 foot lakefront setback as per attached plans. The motion passed unanimously.
CASE 10-03 MAP 104 LOT 26-1 RAMON V. LARO, SEEKING A USE VARIANCE OF ARTICLE IV SECTION 4.10 TO ALLOW A CONTRACTOR YARD AT 57 PROSPECT HILL ROAD.
Chairman Urbach commented that there is a clarified definition of a contractor’s yard as a result of town meeting and read the newly approved definition.
Mike Mayo, who rents the property, is representing Mr. Laro and presented the case. He is the contractor and lives at 57 Prospect Hill Road. He said he is asking for a variance to park commercial vehicles; he keeps his personal vehicle and more than one company vehicle on the property. Mr. Mayo has a home office where he works. He has a brief company meeting each weekday at 7 a.m. with employees at his house. The number of vehicles to arrive in the morning are roughly 5. He is also asking for employee vehicles to be parked in his yard during the day. Overnight, there are two commercial vehicles on site and occasionally a construction trailer. Mr. Mayo said materials are stored elsewhere. He would like to ask for a variance to continue to park an
additional commercial vehicle overnight and allow employees to park in yard.
Chairman Urbach asked if there have been any comments from abutters. Mr. Landry said there have been no complaints from any abutters; all green cards were returned. Mary Hillier, 67 Prospect Hill Road, said they have no problem with Mr. Mayo. She asked if the variance goes with Mr. Mayo or the property. Chairman Urbach said it goes with property. Ms. Hillier expressed concern as to what a future property owner might bring in under such a variance. Chairman Urbach said the board can deal with her concerns by adding conditions to the variance. Rich Hamm, 1 Prospect Hill Road, agreed that conditions should apply.
Mr. Kish said he does not feel it is a contractor’s yard. Chairman Urbach said it is because Mr. Mayo is a builder/contractor who is storing equipment. Mr. Landry said there are times when there are four or five trucks parked in the driveway. Mr. Kish said because Mr. Mayo is not running a home business or home occupation he takes issue with the statement that he is running a contractor’s yard. Mr. Mayo said he is keeping equipment in his yard and the vehicle he keeps is owned by his business and is not his personal vehicle. Also, there is also traffic generated in the morning.
Mr. Kish reiterated that he feels it is not a contractor’s yard. He does not feel the definition applies. Mr. Landry said it does because there is more than one vehicle involved.
Chairman Urbach asked Mr. Mayo to specify what conditions he feels would be reasonable if the board grants the variance. Mr. Mayo said he would like a maximum of four cars and/or light trucks to be parked from 7 a.m. to 7 p.m., one company vehicle for 24 hours a day and one cargo trailer not to exceed 8x16 feet for 24 hours a day.
Mr. Mayo stated he is an exterior improvement contractor, dealing primarily in roofing.
Motion by Mr. Kish, seconded by Mr. Balyeat, to grant a use variance of Article IV Section 4.10 to allow a contractor’s yard at 57 Prospect Hill Road subject to the following conditions: to allow four cars or light trucks from 7 a.m. to 7 p.m., a maximum of one cargo trailer not to exceed 8x16 feet for 24 hours a day and one company pickup truck for 24 hours a day. The motion passed unanimously.
The meeting adjourned at 8:40.
Respectfully submitted,
Katie Richardson
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Peter Urbach, Chairman Alex Kish, Vice-Chairman
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Harry Gazelle James Lyons
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Charles Balyeat
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