Minutes WS
NEWMARKET PLANNING BOARD WORKSHOP
JANUARY 10, 2017
MINUTES
Present: Eric Botterman (Chairman), Val Shelton (Vice Chairman), Diane Hardy (Town Planner), Mike Hoffman (Building Official), Rose-Anne Kwaks, Peter Nelson (Alternate), Amy Burns (Town Council ex officio), Dale Pike (Town Council ex officio alternate), Janice Rosa (arrived late)
Absent: Jane Ford, Ezra Temko, Glen Wilkinson (Alternate)
Called to order: 4:40 p.m.
Adjourned: 6:26 p.m.
The people present recited the Pledge of Allegiance.
Mike Hoffman, Building Official/Code Enforcement Officer, went over proposed sign ordinance revisions. Eric Botterman stated there had been a Supreme Court ruling regarding electronic signs. Diane Hardy stated the section to refer to in the Zoning Ordinance is Section 4.00. She included material from that section with the suggested changes in the packet the Board had received. She also included the court decision for reference.
Mike Hoffman stated the court decision states the content of signage cannot be regulated and they also cannot treat one type of business differently than another. In the Newmarket Zoning Ordinance, there were a number of instances where one entity was being treated differently than another, for example, real estate signs had specific sizes vs. those for fraternal and social organizations. The Town can regulate the size and design of a sign in the zoning ordinance.
He stated a sign company had mentioned to him there were some sizes of signs allowed that that Town may not have intended to have. One was a projecting sign that could be 32 sq. ft. in the downtown area, which would be huge. Most of the existing signs are a lot smaller than that.
He stated illuminated signs are allowed in all districts except for the M2 and M2-A zones. It was not the intention to have illuminated signs in the R1 district. This is an opportunity to clean up some of these items in the ordinance.
He stated regarding neon signs, neon has kind of gone out of style and there are now a lot of LED signs. The intent is for a bulb style lamp. They cannot regulate the content, but they can regulate the size and design and he thought they might want to do something with that. They could call it neon-style or illuminated lamp style lighting or something similar.
Another item was they had a situation with someone having a sale in their garage every weekend all summer long. They would attach their signs to stop signs, which is another issue, and it would interfere with sight distances at intersections. He stated they worry about the line in the sand between a yard sale that happens every single weekend and a commercial occupation in a residential neighborhood. Some communities will say how many yard sales you can have in one year. Some require you to get a permit. It might be good to come up with a number. He is putting this out there for the Board to consider. Eric Botterman stated this would only affect signage. They could still have a yard sale every weekend, but they could only put signs up, for example, four times a year. Mike Hoffman stated that is the way it is written. This would not restrict the use, just the signage. Eric Botterman stated four times a year was reasonable. The other Board members agreed.
Mike Hoffman stated they cannot allow signs in the public right of way without creating a Pandora’s Box. It is often done with real estate signs, but if they allow the real estate signs, they have to allow every other business to advertise in those same locations. He has a collection of signs in his office for mattress sales, paving, etc. They are almost always at intersections where they are often block sight distances. They do not allow any commercial speech signs in the public way. The State of NH has an exception to that and that is their “blue sign” program. NH DOT puts those up and they meet their traffic codes. They should not be allowing any signage in the public way. The State permits political free speech signs on all State rights of way, which creates some confusion here, because of Grant Road, a local road a portion of which under the State’s jurisdiction . He pulls the signs up when he sees them or if he gets a complaint. He calls the owners to tell them he has their signs. He lets them know, if this happens again, there is a $100 fine every time they do this, per day, per occurrence, and they don’t usually repeat it.
Val Shelton stated there is a line in Section 4.02 (9) stating “signs may not be located in the public right of way”. There are signs downtown that protrude out, like the sandwich boards and projecting from the building, that are in the public right of way. Mike Hoffman stated the ordinance does speak to that. Val Shelton stated they should clarify this. Diane Hardy stated on page 13 at the top, Section 4.05 (3) it says projecting signs may be substituted for free standing signs. Val Shelton suggested stating non-projecting signs may not be located in the public right of way. Dale Pike stated the sandwich board signs would also be an exception. Val Shelton stated the language should say, “…unless otherwise permitted”.
Mike Hoffman stated the directional signs for persons with disabilities will be changed from four sq. ft. to two sq. ft. Four sq. ft. is really designed for someone traveling at roadway speeds of 45 mph.
He stated announcement board/message boards are a little problematic, because, if they are allowed, they would be allowing people to write anything they want on them and there are a number of cases that have occurred in the state, where there is fairly vulgar speech or undesirable free speech. If you look at Willow Street in Manchester, there is one as you come off the ramp that says things about former governors and senators that are very offensive and there is nothing the City can do about it, because they allow message board signs. Somersworth is also having this issue, as well as other towns in the state. Once they allow message boards, they cannot regulate what they say. He recommends eliminating message board signs altogether. These don’t apply to Town property as it is exempted from its own zoning. Prices at a gas station are considered to be a commercial message. If you don’t allow any message board signs, you are not allowing them to change their prices with a digital message center. Even the time/temperature clock is an example. Once you have regulations on these, you open yourself up to having to regulate all message centers. Dale Pike asked if they could define that as a different type of sign. It is not a commercial message. That is not a customizable message. Eric Botterman stated that a message is a message. The gas station could put a nasty message on their price sign. Mike Hoffman stated anyone who currently has these types of signs are grandfathered in. Eric Botterman stated he was okay leaving it as is. He felt they should allow message boards for civic organizations. They currently use them. They are exempt.
Mike Hoffman stated, even churches, if they are doing something commercial such as operating a thrift shop and utilizing a sign for that use, would come under commercial speech. A non-profit or civic organization advertising services is different. These are not commercial activities. He is recommending considering taking out signs for fraternal social clubs, local service agencies and philanthropic associations. It creates a different group. The Board members decided to leave it in.
Mike Hoffman stated the next subject is awnings. There have been issues in the past with having an awning made of translucent awning material with back lighting and whether it creates an internally illuminated sign effect. That has been a bone of contention for some. It is probably something the Board does not want to replicate. It is an internally illuminated sign shaped like an awning. Diane Hardy stated Aroma Joe’s has one, but they had asked them not to light it and they complied. Everyone was okay with not allowing translucent awnings.
Mike Hoffman stated the next was sandwich board signs. It would be more comfortable having actual rules in our regulations for these. Different towns have different requirements. Exeter seems to have the nicest of these signs and they require them to be a chalkboard style. Some use liquid crayon, so it doesn’t wash off in the rain. They limit the height and size and whether they can attach anything, like balloons. Nothing can be hanging off of it. The Board was fine with the proposed wording presented.
Val Shelton stated a business could have the sidewalk café tables and chairs out, along with the stairs leading into the business, they could also have a sandwich board sign, but there would have to be at least 48” between the sandwich board sign and the back of a chair on the sidewalk, that is okay. Mike Hoffman stated that would be the minimum he would recommend. If they go six feet, they would prohibit some businesses from doing it. Jonny Boston’s and The Joinery could not do it. The Joinery currently keeps their sign kind of tucked in to keep the 36” path open. He felt it should be 48”. These signs are very important to businesses. It is worth allowing something similar to what Exeter allows. The business could also do 36” with a variance.
He was recommending the signs be wooden. Val Shelton stated that would mean it could be two pieces of plywood and asked if that was what they wanted. Dale Pike asked about someone illuminating the sandwich board sign. Val Shelton stated they do that in Portsmouth. Mike Hoffman stated there wouldn’t be any vesting or grandfathering, because when they started having these signs, they were not technically legal. Exeter’s regulation does state no balloons, flags, illumination or other decorations may be placed upon a sandwich board sign. Eric Botterman stated he was okay with that language. He was not sure about making them all be a chalkboard style. Val Shelton asked if Exeter’s sandwich board signs required a permit. Mike Hoffman stated they do require a permit. Val Shelton stated to have these require a permit and then all of these other items would fall under that, as far as no neon, etc.
Amy Burns asked if they should be taken in when it got dark. Eric Botterman stated the sidewalks are well lit. Val Shelton stated they are under the downtown’s street lighting. Mike Hoffman stated the illumination can’t be on the sign, but there is illumination all over downtown. Val Shelton stated you wouldn’t want to require a business owner to take the sign in at dusk, because it is lit. Amy Burns stated she was walking downtown last night and it is lit, but it is still surprising. Eric Botterman stated the street lights were turned down. He stated he understood the suggestion about having 48” clearance, but he doesn’t want to have that go into effect and then have a couple of businesses who can’t put signs out, because they do not have the room. Val Shelton asked why they can’t just say they have to have a clear travel path and cannot obstruct the sidewalk. Mike Hoffman stated it could say 48” where possible and 36” is the minimum. Eric Botterman agreed. He did not want to exclude any businesses.
(Janice Rosa arrived at 5:19 p.m.)
Rose-Anne Kwaks asked what other towns were getting for permit fees. Mike Hoffman stated the $50 fee was pretty common. They ranged mainly $25-$50.
Eric Botterman stated Section 4.04 General Design Standards was next. Mike Hoffman stated this is where they had inadvertently allowed for internally illuminated signs in all districts, except M2 and M2-A. The Board should decide where they really wanted it. Val Shelton stated it should only be in B1. Mike Hoffman stated the gas station on North Main Street and the athletic club on Exeter Road each have internally illuminated signs. The hardware store has one and Marelli’s is vested downtown. Eric Botterman stated he was fine with it restricted to B1.
Mike Hoffman stated it was desirable to not allow a message board and interchangeable letters are message boards. You can’t regulate the speech. There was no opposition.
Rose-Anne Kwaks stated they should add a definition for message board.
Peter Nelson stated it should specify between manual or analog and digital message boards. It was agreed that the language should read “Message boards (digital or electronic) or with interchangeable letters are not permitted. A new item (L) under this section will be added for this language. It should not be under item (2)(c) regarding internally illuminated signs.
Eric Botterman stated the next section was “neon”. They had already changed to neon-style in the first paragraph and should do the same for the second paragraph. Everyone was in agreement the signage should not blink or flash. Peter Nelson stated they should specify this as neon/LED style. Eric Botterman stated they should be general because technology changes and they shouldn’t be too specific.
Peter Nelson stated they should say “moving and/or animated” signs are prohibited.
Mike Hoffman stated the next Section D was vague and does not allow for higher quality signs, which there are a lot of. The change allows for high density urethane, which gives the appearance of carved wood. It is plastic, but looks like wood. Those are the $3,000 signs downtown. They will look great in ten years, too. It is good to allow those.
Mike Hoffman stated the next Section (H) is movable signs and vehicles being used in lieu of signs. They can’t really stop a vehicle that looks like a billboard that is registered for the highway from parking somewhere. He does not know how legal it might be to require them to move the vehicle on occasion. A person could park a box truck in front of their store with a commercial message on it and leave it there for six months. Whether it is enforceable in court, he didn’t know.
Mike Hoffman stated regarding flags, they should decide on the number of flags they would allow a property to have. He did put in there “other than the American flag”, but that may touch on content issues. For instance, there are two flags in front of the Town Hall, the American Legion has three. Eric Botterman stated, to be devil’s advocate, you could make a convincing argument that a flag is a sign. He could put a flag out with his business name on it. Val Shelton stated this is saying it may not contain a commercial message. Mike Hoffman stated the Beach Plum restaurant in North Hampton had a large lobster outside of its business and the Town took them to court. The court ruled the lobster was art and the Beach Plum won the case. Eric Botterman stated if you are allowing someone to put up a flag that says “Hello Everyone” and not allowing it to say your message name, you are restricting speech. If you can put a flag up, you can’t control the message on it. He asked if we had a problem with flags in town. Diane Hardy stated they have had problems with feather flags. Eric Botterman asked if those were signs or flags. He would argue it was a sign. His preference was if they don’t have a problem with flags, not to pursue it. Peter Nelson asked wouldn’t the problem be more about the size of the flag and not the quantity. He gave the example of someone draping a huge flag over something vs. a Nepalese restaurant putting up a chain of prayer flags. Would they outlaw that when it reflects the style and culture of the restaurant? He thought they should focus on limiting the size of flags. Eric Botterman thought they should define the flag under signs. Val Shelton stated they should include the language that feather flags and pennants are not permitted in any zone. They should take out the language on the number of flags.
Eric Botterman stated next was the Table in Section 4.05(A) regarding the size of signs. Mike Hoffman stated the reason for the size changes is he didn’t think people realized just how big these signs could be. Everyone was fine with the changes. Val Shelton stated it might make sense to have smaller signs in denser areas. She asked why they wouldn’t allow larger signs in the R1 district for instance. You have two acre minimum, you could have a 20 acre lot limited to a 2’x4’ sign. Val Shelton proposed leaving R1 at 12 sq. ft. Everyone agreed.
The next proposed change was to projecting signs. Mike Hoffman stated 24 sq. ft. is a big sign. They agreed to change it to 8 sq. ft.
Under wall signs, the message area is not to exceed 10% of the area of the front wall of a structure. Diane Hardy stated that they felt that 10% was excessive. She asked what percentage makes sense. Eric Botterman stated a subdivision sign would fall under this. Diane Hardy said that would fall under a different section. This pertains to “wall signs’ that are attached to the side of the building façade, for example, the wall sign that advertises “Newbury Farms” market.
Mike Hoffman stated he could come up with some mockups and show what some of the issues are. The subject of Newberry Farms signage was discussed. Mike Hoffman stated there are three registered businesses there and each business is allowed signage. Eric Botterman stated using a percentage is tough, because it is all relative to the size of the building. Rose-Anne Kwaks said they could do 5% and, if anything bigger was desired, they could go for a variance. Mike Hoffman stated they don’t run into trouble on small buildings, where the sign would be very small. The big buildings are where you run into trouble. Mike Hoffman stated, for example, the Coffee Shack would have a very, very small sign. Eric Botterman stated they could put a square footage on it. He asked if Mike Hoffman could get some information on the percentages for the Planning Board to look at and further discuss.
The Board then discussed directional signs, as described in Section 16. Eric Botterman asked if subdivision signs would fall under this section. Diane Hardy stated that is not a directional sign, it is an identification sign. Eric Botterman stated they could take out “directional” and just say “one sign”. Val Shelton stated they would want the subdivision name on both sides of a wall. Mike Hoffman stated they have been limited to one side and they pick the best location. It seems to have worked. He hasn’t had any complaints. Val Shelton stated they could add language about if the sign is within a stone wall, two are permitted. Rose-Anne Kwaks stated “A sign identifying the entrance to a subdivision shall not exceed 12 sq. ft. and height shall not exceed 6 feet”. “A sign identifying a subdivision may be placed in the right of way at the entrance to a subdivision, the message….”. Eric Botterman stated, “One directional sign may be placed” and then after the 6 feet say, “…in addition signs identifying a subdivision name, placed in a stone wall…” Peter Nelson stated that gets complicated. Diane Hardy stated they could just have one sign. Val Shelton stated Piscassic Village has them on the stone wall at each end. Val Shelton stated the language could be “subdivision identification signs may be placed in the right of way”. Mike Hoffman stated the signs are normally five feet in from the property line. They should be careful, as they cannot permit someone to put something in the State’s right of way. People should not be allowed to put anything in the right of way. It was decided to delete this item. Val Shelton stated subdivision identification signs should be exempt as approved by the Planning Board for subdivision. Mike Hoffman stated there should be regulations for them. Diane Hardy stated this could be in subdivision regulations, not under signage.
Dale Pike stated the Town Council was trying to find a date for the joint meeting with the Planning Board. They were talking about possibly February 1 after an abbreviated Town Council meeting. Some Planning members stated they were not available on that date. Eric Botterman suggested the first meeting in March. Dale Pike stated the Town Council was meeting next week and they will discuss those dates. He will propose February 28 or March 1st.
Diane Hardy discussed the modifications on economic development that came out of the Master Plan Future Land Use discussions. They have discussed them several times and have had at least two public hearings on them. The Committee felt they were ready to go forward with these changes and schedule them for public hearing. If they work quickly, they could get them on the agenda for January 24. The Town would have to have all of the changes by noon tomorrow. Everyone was fine with the modifications and it will be scheduled for January 24.
Diane Hardy stated they need to have a time frame at which nonconforming uses lose their “grandfathered” status. If a use has been abandoned or discontinued for a certain time period that would happen. The Committee recommends they include language in the ordinance that defines the time frame as one year. Everyone was fine with that.
Regarding accessory apartments, Diane Hardy reviewed the current ordinance in light of the changes to the State law. These changes will go into effect on June 1, 2017. The Town’s ordinance does allow accessory apartments granted by Special Exception by the Zoning Board. There are no additional requirements for lot size, frontage, or land use above and beyond what is required for single family dwellings. They currently allow one accessory dwelling unit per detached single family residence. It was to be within the existing footprint of the single family home. The State law states you need to consider an option to allow additions to an existing detached dwelling. Her recommended changes are to clarify that accessory apartments are allowed in all residential districts that permit single family use. There is a section that talks about the need to balance the number of bedrooms in accessory apartments to prevent excessive growth in the number of school age children. She felt that language reeked of housing discrimination and it was important to remove that language from the ordinance. They are looking at adding the clause “or attached to” in Paragraph B. That would allow someone to build an addition. They cannot limit accessory apartment to a studio and one bedroom apartments, so they need to insert the language “or two-bedroom apartments”. Pertaining to exterior changes, they have language that currently talks about no exterior changes shall be made that significantly alters the appearance of the structure from the street. She revised the language by taking it right out of the State law that talks about “maintaining the aesthetic continuity of the accessory dwelling with the principal dwelling as a single family dwelling. She stated they are suggesting a new paragraph regarding interior doors. This is also right out of the State law. “An interior door shall be provided between the principle dwelling unit and the accessory dwelling, however it shall not be required to remain unlocked”. The next change has to do with defining the difference between a principal dwelling and the accessory dwelling. At the request of the committee, Diane Hardy received a legal opinion from Attorney Ratigan about the size of the units and was told they could not require that an accessory apartment to be not less than 750 sq. ft. She also spoke with Susan Slack, at NH Office of Energy and Planning and Ben Frost, with NH Housing Finance Authority, who helped draft the legislation. They agreed it was awkward language. The intent of the language was that the maximum cannot be less than 750 sq. ft. Ben Frost concluded Newmarket’s Ordinance on minimum and maximum size regulations meets the State law and they don’t need to make any change to that section. Eric Botterman stated they have to allow, by law, a two bedroom accessory apartment. He asked why they care how big it is. Dale Pike felt it was reasonable to put a limit on the size. Eric Botterman asked, if you have a two bedroom unit, why care if it is 800 sq. ft. or 1,000 sq. ft. It does not allow more people to live there. Rose-Anne Kwaks stated people would be coming in asking for variances for a third bedroom. They are turning single family homes with accessory apartments into duplexes. Instead of the state average of 15% multi-family units, Newmarket is over 50%. She thought the Zoning Board allowing any of the increase in size of the accessory units is ludicrous. Val Shelton stated what is not being mentioned here is that one house in particular, that received a variance, is over 7,000 sq. ft. under the roof and the taxes are over $25,000 a year. Rose-Anne Kwaks stated they should not have bought the house. Accessory apartments were meant for Grandma on a fixed income, who is now widowed. Val Shelton stated the law requires owner occupancy in one of the units. To say it is being converted to multi-family is not true. Janice Rosa stated, for example, what if she wanted to move into the smaller unit in her house and let her family member have the larger portion. Now she would like to add a little closed in porch. You are not increasing it by a bedroom. You want to have a bigger kitchen, for example, or a washer and dryer. She did not think accessory apartments are evil. Rose-Anne Kwaks stated who is to say in a 2,000 sq. ft. accessory apartment, they will keep it to two bedrooms. Val Shelton stated a 2,000 sq. ft. apartment in a principal dwelling that is over 7,000 sq. ft. under roof is less than 30%. It is smaller than what you would be doing in the scope of that area. Eric Botterman stated an 800 sq. ft. apartment is small. Diane Hardy stated in giving them an extra bedroom would make that a more livable unit. Eric Botterman stated he did not make decisions on what the ZBA might do. Rose-Anne Kwaks stated it was a slippery slope. Amy Burns stated it is owner-occupied and that makes a difference. Mike Hoffman stated what they have in place is pretty good. He does not get complaints from owner occupied units. The Board consensus supported 1,000 sq. ft.
Diane Hardy stated they will schedule this for public hearing on January 24. They won’t do the signage at that point.
She stated for subdivision and site plan regulations they just need to change the filing period from 15 days to 21 days to reflect the change in State law.
Diane Hardy stated they got a letter from the attorney on architectural design. She was hoping they could review that tonight, but she wanted to at least get the letter to the Board. Attorney Ratigan drafted something for their consideration. She would like to discuss this at the January 24 meeting.
The workshop ended at 6:26 p.m.