Minutes

 NEWMARKET ZONING BOARD OF ADJUSTMENT MEETING

DECEMBER 8, 2014

MINUTES

Present:           Chris Hawkins (Chairman), Wayne Rosa (Vice Chairman), Bob Daigle, Elaine Winn, Richard Shelton (Alternate), Diane Hardy (Zoning Administrator)

Called to order:           7:01 p.m.

Adjourned:                  7:48 p.m.

Agenda Item #1 – Pledge of Allegiance

Agenda Item #2 – Review and approval of minutes:          10/20/14 & 11/17/14

            Chairman Hawkins appointed Richard Shelton to fill in for the vacant full member position for the evening.

            Action

Motion:          Bob Daigle made a motion to approve both sets of minutes as transmitted

                        Second:           Richard Shelton

                        Vote:               All in favor

Agenda Item #3 – Regular Business

Motion for Rehearing - Pursuant to NH RSA 677:2, regarding the approval, on October 20, 2014, of a Variance requested by Real Estate Advisors/Walter Cheney reference Section 3.03 of the Newmarket Zoning Ordinance for property located at 1R Grape Street, Tax Map U2, Lot 206, R3 Zone, to allow increased residential density to allow four units on less than two acres of land on an existing nonconforming lot that does not meet the current road frontage requirements of 100 feet.  The motion is made by abutters of the property.

            Chairman Hawkins clarified this was a public meeting, not a public hearing.  The Board will not be taking any comment or new evidence this evening.  This is for the Board to consider whether, based on the information submitted in a motion for rehearing, which the Board members have all read, there is good cause under the statute to reconsider the Board’s decision or correct any errors the Board believes they have made.  The statutory standard is whether, if in the Board’s opinion, there is good reason to believe a rehearing should be granted. 

            Richard Shelton read from a prepared statement addressing the Motion for Rehearing for the Variance the Board approved for the applicant for his property located at 1R Grape Street.  This area has remained vacant, except for a six bay building to the rear of the lot and that, as far back as he could remember, was utilized as an area playground.  In fact, more than forty years ago his two older boys used to play basketball there with the property owner’s son.  Any change in use of this property would not, in his opinion, have a positive outlook on most, if not all, of the neighbors. 

            Before Simplex v. Newington the court took a very hard line on variances.  That decision pertained to upholding the Town of Newington denying Simplex to change an area of their industrial land that fronted on the main road to a commercial use, as was the use across the street.  The courts affirmed the ZBA’s denial.

            After Simplex, January 2001, the court made two significant changes:  (1) it signals the NH Supreme Court’s changing attitude toward private property rights and granting of variance relief, and (2) it explicitly makes the change in the court developed definition of “unnecessary hardship”, summarized in the following paragraph from the Simplex decision:  “Inevitably and necessarily, there is a tension between zoning ordinances and property right as Courts balance the rights of citizens to the enjoyment of private property with the rights of municipalities to restrict property use.  In this balancing process, constitutional property rights must be respected and protected from unreasonable zoning restrictions.  The New Hampshire Constitution guarantees to all persons the right to acquire, possess and protect property.  (See N.H. Const. pt. I, arts, 2, 12) These guarantees limit all grants of powers to the State that deprive individuals of the reasonable use of their land” See:  The Board of Adjustment page E3.

            Following the Simplex change, in 2000, the Gatley’s bought a three +/- acre lot in Manchester after correctly determining that stabling horses was a permitted use in the relevant district.  In 2001, they contracted to build a single family house, then sought a permit to build a barn to stable two horses.  To their surprise, they were informed that the City had recently amended its zoning ordinance to prohibit livestock, including horses in the district.  They filed for a Variance, which the ZBA granted.  Rancourt, an abutter, appealed to the Superior Court and the Court upheld the granting of a variance.  He then appealed to the Supreme Court, which upheld the Superior Court’s decision.  See, The Board of Adjustment in NH, page #14’’

            As the Table of Permitted Uses permitted in the R3 zone include some of the uses, bed & breakfast, family child daycare, nursing home, multi-family residential, single family residential including manufactured housing and duplex residential, that any of these permitted uses could exceed the area and density use that the applicant was granted for the fourplex as long as setbacks were met.

            He stated it was his opinion that, if the Board denies this motion, the applicant could come back with a duplex, without going to this Board, with three or four bedrooms in each one and rent them to college students.  The residents would have the police down there with the parties going on. 

            Bob Daigle asked what their obligations were for the rehearing under the law.  Chairman Hawkins stated, under the statute, the applicants moving for rehearing have to demonstrate there is good reason for a rehearing.

            Richard Shelton stated, as the Motion for Rehearing does not address any new information that was not available regarding the approval on October 20, 2014, but only rebuts the decision, he moved the Board deny the Motion for Rehearing. 

            Chairman Hawkins explained the burden was on the applicants for rehearing to demonstrate there is good reason, under the statute, to believe the Board has made some error in their decision.  The Board does not take testimony.  This is all based on the information given at the previous hearings.  This is simply taking a look and having more mature consideration considering the arguments that are made.  The question is whether the Board agrees they made a mistake.  This is the opportunity to correct any mistake the Board believes it may have made.  The applicants have submitted a motion where they feel the Board has made errors in certain respects.  The document is well presented.  He stated he went back to the minutes of the meeting and thought about the evidence that was presented.  He tried to look at it with a fresh set of eyes and see if there was anything, based on what the applicants had submitted that made him think they made a mistake.  Bob Daigle stated that was what they all did. 

            Wayne Rosa stated this was a well presented argument that should have been made at the previous meeting.  He did not see any new evidence.  He did not think the Board had made any mistakes or overlooked anything. 

            Chairman Hawkins stated they had a very extensive discussion of this application at the time and a lot of the arguments contained in the motion are things the Board did work through at that time.  It is not a question of new evidence.  If you look at the specific arguments raised, he felt they pretty thoroughly thrashed out a lot of the issues and there was disagreement and they had to work through a lot. 

            Wayne Rosa stated one of the points made in the motion says they did not vote specifically on each criterion.  He would like to clarify that.  At the Zoning Board classes, they all learned they should vote on the entire application and discuss each criterion.

            Chairman Hawkins stated he felt like the basis for each item was adequately covered in the minutes.  Whether anyone agrees or disagrees, it was adequately covered.  Richard Shelton agreed. 

            Bob Daigle asked whether they had to do a findings of fact with each criterion if the minutes were adequate.  Chairman Hawkins did not think they had to do that.

            Richard Shelton stated the applicant for the variances still owns this property and he could put something there the abutters really don’t want.  He came to the Board with a very good proposal vs. what could be built there.

            Chairman Hawkins asked Elaine Winn if she had anything she wanted to say on this.  She stated the second paragraph on page 5 she agrees with.  That was her position at the original hearing.  (This paragraph has to do with the applicant’s argument that the Town already serves the lot.  The motion for rehearing states the lot is empty except for the garage.  The Town provides no water, sewer or educational services for this.  Any increased tax income would be negated by the addition of four households.)

            Action

Motion:          Richard Shelton made a motion based on his earlier testimony that they deny the rehearing

                        Second:           Bob Daigle

                        Vote:               Elaine Winn opposed

                                                All others in favor

            Peggy Small-Porter asked if the motion could be read.  Chairman Hawkins stated the motion is in the record and is available to the public.  They typically do not read the whole thing into the record.  Diane Hardy stated it is in the Planning Office and she would be happy to make copies available for anyone. 

Newmarket Retail Shops, LLC - Public hearing for a variance reference Section 4.03 of the Newmarket Zoning Ordinance to permit the installation of an off-site commercial sign on property also owned by the applicant at Tax Map U2, Lot 57 (the former Riverdale Garage property) identifying their new retail building located at 12 Weaver Street (a.k.a. 1 Spring Street), Tax Map U2, Lots 60A and 61, M2-A Zone.  The applicant also requests a variance reference Section 4.05(A)(2) of the Newmarket Zoning Ordinance to permit a message area of 36 square feet in excess of the maximum 24 square feet allowed.     

            Matt Assia, Chinburg Properties, represented Newmarket Retail Shops, LLC.  He stated the properties involved are part of the overall Newmarket Mills redevelopment project that was initiated several years ago.  The redevelopment of the mills envisioned commercial uses on this side of Main Street.  There are two commercial buildings under construction, one being the approximately 10,000 sq. ft. retail building at U2 Lot 60A and 61 and the other being the renovation and expansion of the former garage building at U2 Lot 57.  The larger building is for a restaurant, a nano brewery and for one more tenant, yet to be determined.  The building in the front at Lot 57 is being developed as a market, with a small coffee drive through.  Both projects are separate projects approved by the Planning Board.  Lots 60A and 61, where the retail building is located has its primary access to and from Main Street, the commercial center of town, via an easement that crosses town owned land that is adjacent to the library.  That easement has always been used as access to that parking area. 

            Included in the package was a site plan.  The red area on it is Weaver Street.  This is an easement over the Town owned driveway.

            The sign for the retail shop wants to be along Main Street.  This is the commercial center of town.  Lot 60 and 61A do not have frontage on Main Street.  Putting a commercial sign on Spring or Elm Street would be inappropriate.  The parcels are under common ownership, they were acquired at the same time and they are all part of this overall master redevelopment plan for the mill.  They thought it was appropriate the sign be located offsite on Lot 57.  The location, as indicated on the plan, is as close to Weaver Street as possible while still being on land owned by Newmarket Retail Shops.

            He stated included in the application was a rendering, which presents a very attractive sign for a multi-tenant commercial building.  It is in keeping with the character of the signage being installed downtown.  It will be down-lit from the top, in accordance with zoning requirements.  On the bottom, there is a hanging sign indicating municipal parking.  As part of the site plan approval, they agreed to work with the Town to best locate signage for the parking behind the library.  They could find another spot, if necessary.

            The overall sign is 6’ x 6’.  The intent is to create a sign out of wooden planks and distress it to make it look like antique wood.  The actual sign area where the tenants’ names would be is smaller than 6’ x 6’.  The spacing is important to make the sign attractive.  The name across the top is important “Weavers Row”.  The sign ordinance does not clearly address multi-tenant buildings.  They think the request for the variance is appropriate for that reason and for the reason stated in the application, which was to present a sign that is aesthetically pleasing. 

            Diane Hardy asked how far back the sign would be from the public right of way on Main Street.  Matt Assia stated there is a sidewalk now that runs along Weaver Street.  The sidewalk will continue to Main Street.  The photo image they included depicts the location of the sidewalk.  A curb will be installed.  The sign will be behind the sidewalk.  The sign will be placed 5 feet from the property line.  Diane Hardy stated she was concerned about site distance.  Matt Assia stated they will place it where the Town and applicant agree it is best.  Bob Daigle stated it should be okay behind the sidewalk.  Diane Hardy stated the State may want to see something for the site distance.  They have jurisdiction over the access point.  Chairman Hawkins asked if they would have to come back, if the State wants something different.  If the Board approves it, they should approve it with a condition subject to the State’s approval.  He did not want the applicant to have to come back.

            Wayne Rosa asked why this was not approved or asked about at Planning Board.  Diane Hardy stated, in this instance, there were some zoning changes in this area.  Some changes regarding signage were overlooked in the process.

            Bob Daigle asked how big the current Riverdale sign was.  Diane Hardy stated it was grandfathered.  She thought it was about the same size, as the one being requested. 

            Bob Daigle stated a down-lit sign would be more appealing, with the lighting currently in town.

            To Criterion #1, Matt Assia stated the variance would not be contrary to the public interest.  The offsite location of the sign is in keeping with the commercial character of Main Street and protects the residential character of Elm and Spring Streets.  The additional message area allows for a sign that is appropriately sized for multiple tenants, while maintaining an appealing design aesthetic that is in character with the signage along Main Street.

            To Criterion #2, he stated if the variance were granted the spirit of the ordinance would be observed, because it is the applicant’s position that the offsite location is adjacent to the access road to the new retail building and is in character with the signage along Main Street’s downtown corridor.  The message area provides for a sign design that is in keeping with the signage at the historic mills and at other downtown businesses.

            To Criterion #3, he stated granting the variance would do substantial justice, because the offsite location is under common ownership and was part of the owner’s master plan for the assembled properties as part of the overall mill development.  Lot 60A and 61 do not have frontage along a commercial street.  Lot 57 does.  Installing a freestanding sign within 5’ of the northerly property line of Lot 57 provides substantial visual separation from other nearby signs and fits within the commercial character of the downtown business district.  The additional message area will allow the applicant to install the sign using attractive materials, with a layout that includes blank areas for spacing, clarity and appealing aesthetics. 

            To Criterion #4, he stated, if the variance was granted the values of the surrounding properties would not be diminished.  The sign location and size will not diminish the value of other properties.  It is appropriate for the downtown business district.

            To Criterion #5, he stated, for unnecessary hardship, the overall plan for the redevelopment of the mills includes the reuse of the land on the westerly side of Main Street for parking and commercial uses.  The commercial use of Lot 60A and 61 is predicated on access to and from Main Street and signage identity along Main Street.  The lots are zoned for commercial uses.  The proposed offsite location and message area are consistent with the purpose of the sign ordinance, because the proposed sign will serve to enhance the character of the community and protect its visual environment.  Strict adherence would require installation of a commercial sign on otherwise residential Spring and Elm Streets.  The proposed use is a reasonable one, because high quality sign installations are appropriate in Newmarket’s downtown business district. 

            Diane Hardy stated all abutters had been notified. 

            Chairman Hawkins opened and closed the public hearing.  There were no people from the public present.

            Richard Shelton stated the applicant presented five fine answers to the criteria.

            Action

                        Motion:          Richard Shelton made a motion:

The applicant addressing the five criteria for two variances from Section 4.03 of the Newmarket Zoning Ordinance for an offsite commercial sign and Section 4.05(A)(2) for a sign in excess of the maximum 24 sq. ft. allowed in a part of the Newmarket Mills redevelopment and Lots 60A, 61 and 57 are under common ownership and as the Newmarket Planning Board has previously reviewed and approved both projects he makes a motion that the Board approve the variance from Section 4.05(A)(2) for a sign with a message are not to exceed 36 sq. ft. and a variance for 4.03 to permit the installation of an offsite sign.  The sign shall be placed on Lot 57, known as the former Riverdale Garage in close proximity to Weaver Street, as cited by the Building Inspector.  The sign message shall for the exclusive use only for the businesses located off Weaver Street and Spring Street and will be known as Weaver Row, Building 12 and include one freehanging sign showing the area of municipal parking.  The property is located on Tax Map U2, Lot 57, 60A, and 61 in the M2-A Zone.  Subject to final placement, according to Building Official and approval by NH DOT

                        Second:           Bob Daigle

            Chairman Hawkins suggested the Board adopt the evidence submitted and the application as the Findings of Fact.  For the record, he added, in relation to the public interest, he stated the public has an interest in having clear signage to be able to find things.  He noticed some issues with inadequate signage in Portsmouth where there are tiny signs and you are looking for those instead of paying attention to the road.  Signs should be easy to see, particularly on a very busy road like Main Street in Newmarket.  There should be an easily visible sign to direct you.  Bob Daigle stated especially where there is a crosswalk close by.  Chairman Hawkins stated this does not strike him as visual clutter.  If you put the sign on the Spring Street side, it would be quite obtrusive.  This is reasonable and he could not see a negative impact.

            Diane Hardy stated they have had people call and ask about the leasing sign on the Riverdale property.  It is not clear whether it is leasing of the Riverdale property or the space behind.  There is a need for clear signage. 

            Bob Daigle stated the Vaughan Mall in Portsmouth has a very readable sign.  It is a good example. 

            Chairman Hawkins stated he looked at a court case involving a variance for signage.  This application fits quite comfortably in the framework set up by the court with that case, which was  Harborside Associates vs. Parade Residents Hotel.     

                        Vote:   All in favor

Agenda Item #5 – Other Business

            Chairman Hawkins thanked the Linked Together children for their wonderful cards and ornaments.

            Bob Daigle stated the Firefighters Association is having their annual senior dinner on Saturday at the Elementary School at 11:00 a.m.  It is free of charge.

Agenda Item #6 – Adjourn

            Action

                        Motion:          Bob Daigle made a motion to adjourn at 7:48 p.m.

                        Second:           Elaine Winn

                        Vote:               All in favor