Minutes
NEWMARKET ZONING BOARD OF ADJUSTMENT
MAY 11, 2015
MINUTES
Present: Chris Hawkins (Chairman), Vice Chairman Rosa (Vice Chairman), Bob Daigle, Richard Shelton (Alternate), Mike Hoffman, Building Official, and Diane Hardy, Zoning Administrator.
Jonathan Kiper (arrived at 7:34 p.m.)
Called to order: 7:01 p.m.
Adjourned: 7:41 p.m.
Agenda Item #1 – Pledge of Allegiance
Agenda Item #2 – Review & approval of minutes: 05/04/15
Action
Motion: Bob Daigle made a motion to accept the minutes as transmitted
Second: Vice Chairman Rosa
Vote: All in favor
Agenda Item #3 – Regular Business
Newmarket Mills, LLC/Harry Wesson – Continuation of public hearing for an application for Variances from Section 4.05(B)2 of the Newmarket Zoning Ordinance, for a roof mounted sign and Section 4.05(B)(3) to allow two signs for both “Butcher’s Choice” and “Newberry Farms”, at 66 Main Street, Tax Map U2, Lot 57, M2A. (Note: The only sign requiring a variance is the roof mounted sign. It was determined after the public notice had gone out the other variance was not necessary, as those signs were permitted.)
Diane Hardy recused herself.
Chairman Hawkins stated they had four Board members present, where they normally have five. They need three affirmative votes for a variance. Statistically, the applicant’s chances are better with five members. It was up to the applicant whether they wanted to go forward with four members or wait until they have five. The applicant asked when the next meeting would be. Chairman Hawkins stated they would probably meet next Monday, because the next application may have to be continued. He apologized, as he did not know they were going to be short a Board member this evening. The applicant decided to go forward with a four member Board.
Chairman Hawkins explained the hearing procedure.
Doug MacDonald, from the law firm of Keene & MacDonald, represented the applicant. He stated the purpose of the variance request was for a roof sign at that location. The roof sign is necessary, because it is the only viable option to identify the business in a way that would serve both the business and the traveling public.
He handed out a narrative to the Board. He highlighted the points in the narrative.
For the criteria, he stated he relied mostly on the case law of Harborside Associates, which has nice cross references with this case.
On the first criteria, he stated the variance is not contrary to the public interest. The Harborside case directs you to look at whether the variance, if granted, would result in an alteration of the essential character of the neighborhood or threaten the public health, safety or welfare. This would not alter the essential character of the neighborhood. It is a commercial district, with a fair amount of signage. The signage in the area is consistent with the proposed sign. The unique aspect is the roof sign. The Zoning Ordinance does not contemplate roof signs and that is why they are before the Board.
As far as the aesthetics of the sign, it is a very classy sign. It is subtle and appropriate. There is a sign located in front of it for Weaver’s Row and it would play nicely off that sign. The designs are complementary. It fits into the essential character of the neighborhood. With respect to public safety, health or welfare, the health and welfare don’t really apply that much. The safety aspect is important. An appropriate sign, as contemplated by the Zoning Ordinance, allows the public to direct itself when it is looking for a place of business and allows the business to identify itself to the public, as they are traveling. It is appropriate, from a safety perspective, in that it will allow a traveler on Route 108 heading north to identify the building, with enough time to turn in prior to passing the building and having to turn around.
It is unique, as you travel into town on Route 108, you are coming up that hill and you will see the Weaver’s Row sign first. The building is partly obscured by the hill and the Weaver’s Row sign, then as you come up the Weaver’s Row sign kind of passes in front of the building as you go by. That safety element is important.
This sign will be located on one side on the front of the building facing the north. Someone heading south would see it. Vice Chairman Rosa stated there will be one sign on the side facing Main Street and one on the roof facing north. The old sign is being utilized by “Aroma Joe’s”.
Harry Wesson stated there are three different businesses operating and each is permitted a sign. A street corner allowance was given and allows two signs per business. The newly adopted Weaver’s Row is being construed as a street. The issue is the sign cannot be above the roofline.
Chairman Hawkins stated the variance request is only for the roof sign. The other signs are permitted.
Attorney MacDonald stated the prong of the test where the spirit of the ordinance is observed overlaps the initial prong of the test. The sign section of the ordinance directs that the balance between the business’s need for identification and the public’s need for direction be weighed against one another. In order to properly to see and have an identity for the business, as you travel on Route 108, they need a sign that is visible. For identification purposes and safe travel, they believe the spirit of the ordinance will be met.
Also, with respect to the M2-A zone, one of its purposes is to protect, enhance and expand the commercial, social, civic and residential functions of the downtown. By allowing the proposed sign, you will allow another building to prosper in the downtown.
With respect to substantial justice, the Harborside case directs that the inquiry be any loss to the individual that is not outweighed by a gain to the general public is an injustice. Without the sign, there is a potential substantial adverse effect on the applicant’s business and his ability to identify himself to the traveling public. With respect to the general public, there is no real harm there. They benefit from appropriate signage and the ability to travel safely and find the destination, make a turn at the right driveway, etc.
With respect to the property values being diminished by the variance, by developing this lot, it is a nice, clean looking building. It is a renovation of an automotive facility. It is a nice building, the sign is attractive and the surrounding property values will be increased, if anything. They certainly will not be diminished.
With respect to hardship, if you look at both of the tests, they believe they have satisfied both of those tests. They look to the Harborside case for some guidance, as they explained in their submitted narrative. With respect to no fair and substantial relationship, from the get-go, the zoning ordinance does not have a roof sign section, so there is a struggle to come up with a fair and substantial relationship from that perspective. This is a new concept with respect to what the ordinance contemplates. It is a renovated automotive business. Given the garage bays and configuration of the building, when it was converted, it did not leave a lot of wall space for a sign on the wall and wall signs are contemplated by the ordinance. The positioning of the building, with the front of it perpendicular to Route 108, presents a challenge and it is unique in that regard. It creates a situation where, in order to get into the front of the building, people would have to recognize the building and make a turn before it, as you come up the hill on Route 108, which is unique, as is the geography as you approach it in order to be able to identify the business.
As you approach the building, there is limited wall space, there is the Weaver’s Row sign, which as you travel kind of passes in front of your field of vision as you look toward the business. To have an effective sign, it would have to be above that sign.
With respect to the location of the sign on the roof, it is a reasonable use of the property. Under the first part of the hardship test, they believe it satisfies those elements and is an effective sign that would allow travelers to identify the business and meet all of the prongs of the test.
With respect to the second test, they believe the special conditions of the property allow the business to meet that test and satisfy it.
They believe they satisfy all five criteria for granting a variance.
Richard Shelton asked what the square footage of the sign was. Michael Hoffman, Building Official, stated it was 97 sq. ft.
Bob Daigle asked how the size was determined. Michael Hoffman stated there is a formula in the ordinance for wall signs. It says it cannot exceed 10% of the elevation. They scaled this sign off and found it to be under 10% of the wall area of the front elevation.
Attorney MacDonald stated, when they looked at the wall sign criteria, it meets those. Regarding the requirement not to exceed the height of the wall, this does not exceed the height of the ridge of the roof.
Vice Chairman Rosa asked if there would be any direct lighting on the sign. Harry Wesson stated they have goosenecks going onto the sign that will shine down. No bulb will be seen.
Chairman Hawkins stated this was an unusual situation, because the building is perpendicular to the road.
Chairman Hawkins opened the public hearing.
None.
Chairman Hawkins closed the public hearing.
Richard Shelton stated he thought the placement of the sign was a good thing. It is less than 10% of the area. As long as the roof is inspected by our Building Official prior to installation, he is comfortable with it. It will have to be below the peak of the roof.
Chairman Hawkins asked if the Board was comfortable adopting the application as their findings and granting the application subject to the top of the sign being below the ridgeline and otherwise in compliance, subject to final approval by the Building Inspector. He is proposing a motion to adopt the application as the findings of the Board and approve the application subject to the top of the sign being below the ridge of the roof and subject to the approval of the Building Inspector for the final placement of the sign.
Action
Motion: Bob Daigle made a motion to adopt the application as the findings of the Board and approve the application subject to the top of the sign being below the ridge of the roof and subject to the approval of the Building Inspector for the final placement of the sign
Second: Vice Chairman Rosa
Vote: All in favor
Waterway Realty LLC - Public hearing for an application for a Variance from Section 1.05(C)(1) of the Newmarket Zoning Ordinance to permit existing duplexes to remain on a subdivided lot, which is a nonconforming use on a nonconforming lot, and a Variance from Section 2.09(B) to permit two existing duplexes to remain in the R1 Zone on a smaller lot than presently exists, thereby increasing the nonconformity of the use and the lot. The lot is located at 310 Wadleigh Falls Road, Tax Map R5, Lot 85, R-1 Zone.
Tim Lavalle, James Lavalle Associates, represented Waterway Realty, LLC, the owners of 310 Wadleigh Falls Road, aka the “Walker Farm”. Diane Hardy returned.
He stated this is a unique property. There are twenty acres there. It is a narrow property and goes quite a ways back. The Walker farmhouse exists there now, which is a duplex. He did not know how long it had been a duplex. To the left of it, on the other side of the driveway, there is another duplex. Part of it is an old structure and the other part is a somewhat new ranch home. They will leave those there in that configuration. They have Town water and septic systems. They would like to cut (subdivide) those off onto a four acre lot. They are close together now. Four acres encompasses them easily and leaves plenty of room for septic systems. The ultimate goal is to do some sort of development on the back portion of this property. They have been in front of the Planning Board for discussion purposes only. Before they can do anything, they have to straighten out the area with the two duplexes.
Mr. Lavalle stated he understood the Board wanted to do a site walk. Chairman Hawkins stated he did not have to read his responses to the criteria, as the Board had read them. If he wanted to add anything or bring something to the Board’s attention, so they can have that in mind for the site walk, now was the time to present that.
Chairman Hawkins asked for the total acreage of the lot. Mr. Lavalle stated it was 19.96 acres.
Chairman Hawkins asked if he was planning to move the existing septic systems. Mr. Lavalle stated no.
Chairman Hawkins asked if there would be a new curb cut for the future 16 acre lot. Mr. Lavalle stated there would be. He indicated where that would be on the plan. He stated they have had the wetlands mapped on the property. They will not need any permits.
Mr. Lavalle stated it is not contrary to the public interest. It is a continued use. The two duplexes are there. They are off in the corner of the property and not utilizing a large portion of it. It would not injure the public in any way.
He stated, for the spirit and intent of the ordinance, it was to make sure things are not too densely packed. These buildings will (remain) exist where they are. They would not be going against the spirit of the ordinance.
He stated it would do substantial justice, because it would allow for the continued use enjoyed by the Walker Farm.
He stated, as far as property values being diminished, it is there already. The values should remain the same. It would be allowing what is there to continue, just on a smaller lot.
He stated owing to the special conditions of the property, which are the property itself and the fact everything is in the southwest corner.
He stated regarding the criteria stating no fair and substantial relationship exists, they exist, there is plenty of room and this use would be allowed to continue. It would be unreasonable not to allow that.
He stated this is a unique property. Farms, in the old days, would have multiple families living on them. In this case, they just split the house up.
Chairman Hawkins asked if, to make it conforming, they would need an eight acre lot. Mr. Lavalle stated the zoning ordinance stated you need two acres per unit. That would be four acres for a duplex, eight for two duplexes. There are two duplexes already on the property and that is one issue. The other issue is, in order to make them conform, they would need eight acres. Chairman Hawkins asked if that was to make the existing structures conforming. Mr. Lavalle stated they would be partly conforming, as two units on one lot are not currently allowed.
Mr. Lavalle stated they looked at various lot line adjustments. Some would create setback and access issues. The barn is in okay shape, they do not want to get rid of it.
(Jonathan Kiper arrived at the meeting at 7:34 p.m.)
Richard Shelton asked if the main house was a duplex or owned by two different. Mr. Lavalle stated it was owned by one person. They rent out both sides.
Chairman Hawkins opened the public hearing.
Rose-Anne Kwaks, 332 Wadleigh Falls Road, stated she knew the older building, the Walker homestead, was a two family structure. She has occasion to speak to the prior Code Enforcement Officer, when the former owner was building his addition onto the lean-to, basically. That was built as an addition. It was not built as a duplex. She had asked the Code Enforcement Officer about it and she had occasion to speak to David Walker after his father had passed. He had explained to her that it was put on as an addition. If he had intended this to be a duplex, he would have had to come before the Zoning Board to get a variance approved and she did not believe he had done that. It was not built as a legal duplex. Wayne Rosa stated he thought she was correct, as he had been in that house many times and there is an actual passageway between the old shed and the ranch house. It is not just a door, it is open. Rose-Anne Kwaks stated that was why David Walker was allowed to build it as such. It was because it was not distinguished as a duplex. It was a single family with an addition. He has no prior approval for a duplex. Diane Hardy stated there is nothing in the record saying he has approval for two duplexes on that lot. Rose-Anne Kwaks stated she has concerns, because he did come in for a conceptual before the Planning Board for a development in the back. She wanted the Board to know this was a single family addition. It was not built as a duplex.
Chairman Hawkins stated there are a lot of “moving parts” here. He would like to schedule a site walk for Saturday morning.
Action
Motion: Bob Daigle made a motion that they have a site walk on May 16, 2015 at 8:30 a.m. and continue the meeting to May 18, 2-15 at 7:00 p.m.
Chairman Hawkins stated they would do the site walk and give the applicant an opportunity to make any additional presentation, public comment will remain open. The public is invited to the site walk. He prefers to have limited discussion on the merits of the application on the site walk, so all of the public comment is at the meeting.
Second: Wayne Rosa
Vote: All in favor
Agenda Item #4 – New/Old Business
None.
Chairman Hawkins wanted to clarify that Richard Shelton has served as an appointed Alternate for the purposes of both applications tonight.
Agenda Item #5 – Adjourn
Action
Motion: Bob Daigle made a motion to adjourn at 7:41 p.m.
Second: Wayne Rosa
Vote: All in favor