APPROVED

TOWN OF PELHAM

ZONING BOARD OF ADJUSTMENT MEETING

March 12, 2001

 

The Chairman, Walter Kosik, called the meeting to order at approximately 7:40 pm.

 

The Clerk, Mr. George LaBonte, called the roll:

 

PRESENT:

Walter Kosik, Edmund Gleason, George LaBonte, Jr., Peter LaPolice, Alternate David Hennessey

 

ABSENT:

Peter McNamara, Alternate Carolyn Carter, Alternate Jim Bundock

 

The Chairman announced that Mr. Hennessey would be voting for Mr. McNamara in his absence.

 

CASE #2194 - ML 6-117/Norman Paquette - 63 Bridge Street - Seeking an Appeal to an Administrative Decision of the Building Inspector’s denial concerning Article V Section 307-18 Table 2, Section 307-19D and RSA 261:103, Section II to permit a New and Used (Retail) Auto Dealership

 

Mr. LaBonte read aloud the list of abutters.  There were no abutters present, which did not have their name, read.

 

Mr. Norman Paquette, 63 Bridge Street clarified that there would not be a new car dealership.  He said that Mr. Dan Ward would be taking his dealership over when he retired. 

 

Mr. Kosik clarified that Mr. Paquette held the current dealer license, and he wanted Mr. Ward to also hold a license at the same address.  Mr. Paquette answered yes.  Mr. LaBonte noted that on the application the Building Inspector denied due to the following: 1) Did not comply with local ordinances or requirements or has a variance to operate; 2) the dealer was not able to comply with the signage requirement as stated in RSA 261:103, Section II.  The Building Inspector recommended that the Division of Motor Vehicles deny the applicant’s appointment.  The Building Inspector noted that Pelham Tire presently held a dealer license at the location. 

 

Mr. Paquette said he didn’t feel the state had a problem with the application, he said the state found nothing wrong.  He reiterated that he would be backing off on his cars so that Mr. Ward could bring his own in onto the same lot.  Mr. Kosik asked if that would constitute two separate dealerships.  Mr. Paquette said there would be two licenses, but noted that the amount of cars would remain basically the same as it currently was. 

 

Mr. LaBonte asked how the lot would be advertised.  Mr. Paquette said the new lot would D & D Auto Sales.   Mr. LaBonte asked if that would be the only sign on the property.  Mr. Paquette said later, his own signs would come down.  He said that he didn’t currently advertise used car sales, just Pelham Tire. Mr. LaBonte asked when he expected to discontinue selling used cars.  Mr. Paquette said he hopeful to leave by summer, but would have to play it by ear.  Mr. LaBonte asked if Mr. Paquette and Mr. Ward were currently in any kind of partnership.  Mr. Paquette said Mr. Ward had been on the property working together for approximately fourteen years.  Mr. LaBonte asked if they would have a partnership in the endeavor until Mr. Paquette moved along.  Mr. Paquette answered no. 

 

Mr. Gleason said with two licenses, it constituted two distinct dealerships on the same property.  Mr. LaBonte interpretation of the ordinance was that one lot, with more than one dealership was acceptable.  Mr. Gleason disagreed. 

 

 

 

 

PUBLIC INPUT

 

Mr. Dan Ward, 396 Mammoth Road said he was the owner of Dan’s Front End located at Pelham Tire Shop and he had been there for fourteen years.  He didn’t believe that two dealerships on one lot were illegal.  He informed that the state reviewed and told him the only thing he needed was a wall between them, separating their offices.  He said he wouldn’t be adding a new business, building, or anything to the property. 

 

Mr. Kosik asked if he had applied for a license from the state.  Mr. Ward answered yes.  He said they informed he could have the license, but the state was waiting for the Town’s decision.  He said he wasn’t applying for dealer's plates, he was just interested in buying and selling used cars.  Mr. Ward said he asked the Building Inspector if he could set up an office at his house.  He said the Building Inspector said he wasn’t allowed because he lived in an area that was residential zoning.  He felt that the Town was prohibiting him from owning his own business. 

 

Mr. Gleason felt the regulations were specific and would be violated if two dealerships were allowed. 

 

Mr. LaPolice asked what the average numbers of cars were on the property.  Mr. Paquette said currently the number was low, but regularly there were approximately 100.  Mr. LaPolice asked how many cars the lot would hold.  Mr. Paquette said approximately 120 - 140.  Mr. LaPolice asked how many cars they were proposing to have on the lot.  Mr. Paquette said they would have the same amount.  Mr. LaPolice confirmed that the same amount of cars would be contained on the lot, and there wouldn’t be a noticeable increase.  Mr. Ward answered yes. 

 

Mr. Roland Soucy, Town Building Inspector said that the 2000 square foot ordinance was the deciding factor for the denial.  He noted that people were consistently turned down.  He said two licenses had never been granted and felt if a precedent were set there would be several people coming back that had been turned down in the past.  Mr. Kosik confirmed the reason for denial was due to the 2000 square foot ordinance.  Mr. Soucy said that was one reason and the other reason was that two dealer licenses had never been issued for one parcel of land. 

 

Mr. Paddy Culbert, Simpson Road and Planning Board member informed that the intent of the ordinance was to have a single dealership on one lot.  He said when dealership licenses were granted they were awarded on a per-car basis.  He confirmed with Mr. Paquette that he held an unlimited dealer license.  Mr. Paquette answered yes.  Mr. Culbert reiterated that the Planning Board’s intent was to not have more than one dealer on lot.  Mr. Hennessey clarified with Mr. Culbert that the purpose of the ordinance was for Health and Safety.  Mr. Culbert answered yes.  Mr. Culbert also informed that when voted on by the Town, it was a petition warrant article that received 2/3 vote. 

 

Mr. Ward said he would like to see something in writing that states where it is illegal for two dealerships to be on one lot.  He said the state informed him he could have two dealerships on one lot as long as a wall separated the two offices.  Mr. Kosik informed that the two dealerships would have to be 2000’ from each other, according to the Town’s regulations.  Mr. Ward felt that the Town was discriminating against car dealers since there were other businesses in Town such as restaurants, which were allowed to have more than one on a single lot. 

 

Mr. LaBonte read the last sentence of the ordinance aloud, which in his opinion, described what a new or used car dealership was.  He felt the ordinance was prohibiting two dealership lots within 2000’, not two licenses being held on one lot.  He felt the ordinance was only speaking of property boundary, not the number of license.   Mr. Gleason and Mr. Hennessey both disagreed with Mr. LaBonte.  Mr. LaPolice agreed with Mr. LaBonte.  He went on to say if the appeal were denied, the two parties could created a joint partnership and could develop a legal way of operating under one license.

 

 

Mr. Hennessey didn’t feel that an error had been made by the code officer, and therefore, felt the Board should uphold his decision.  He said the gentlemen could do one of two things: 1) could get the zoning law changed, or 2) ask for a variance if there were tremendous hardship.  Mr. Gleason agreed with Mr. Hennessey. 

 

The Board discussed the ordinance, its intent, and what the Board should be voting on. 

 

VOTE:

To Uphold the Building Inspector’s decision to not grant a used car license pertaining to case #2194

(3 - 2 - 0) Mr. Kosik-Yes; Mr. Gleason-Yes; Mr. Hennessey-Yes; Mr. LaBonte-No;

Mr. LaPolice-No.

 

 

THE BOARD UPHELD THE DECISION OF THE BUILDING INSPECTOR

 

Case #2195 - ML 11-29-5/Susan & Daniel Caffrey - 11 Spring Street - Seeking a Special Exception to Article XII, Section 307-73 & 307-74 to permit the construction of an accessory dwelling in the residential zone

 

Mr. LaBonte read aloud the list of abutters.  There were no abutters present, which did not have their name, read.

 

Mr. Daniel and Susan Caffrey of 11 Spring Street appeared before the Board to present their case.

 

Mr. Kosik asked if a copy of the approved (by the state) waste disposal system was on file.  He also asked if they had a certified plan from the Health Officer for the (subsurface waste disposal) septic system to ensure it was in good working condition and that the lot could accommodate the combined flows of the existing structure and accessory dwelling. 

 

Ms. Susan Caffrey informed that they had received the plan today, but it had not been signed off on yet by the Town Health Officer or the state.  She said they would submit tonight. 

 

Mr. Gleason asked if a new septic system would be put in.  Mr. Daniel Caffrey answered no.  He said the plan showed the back up plan in case of failure of the existing.  Mr. Gleason asked how many bedrooms the existing system was rated for.  Ms. Caffrey said three.  Mr. Gleason asked how many bedrooms the existing house currently had.  Ms. Caffrey answered three. 

 

Mr. LaPolice noted there were two issues to be addressed: 1) undersized system needed certification by Health Officer, and 2) plan needed to be submitted that shows new septic in the event of failure of the existing.  

 

Mr. Hennessey asked what the total square feet of the accessory unit would be.  Mr. Caffrey said 543’, but the actual living space would not be over 500 square feet.  Mr. Hennessey believed the footprint was over 543 square feet, not including the second bathroom. 

 

Mr. Gleason clarified that the calculations shown on the plan equaled approximately 559 square feet.  There was further discussion regarding how the living space was calculated. 

 

Mr. Kosik suggested granting a continuance until next month’s meeting.  Mr. Gleason noted that the following issues should be rectified before the next meeting: 1) certification from the Health Officer; 2) approved plan from the state; and 3) specific dimensions of addition which show the accessory dwelling to be within 500 square feet. 

 

MOTION:

(Gleason/Hennessey) To continue the hearing until next month’s meeting (April 9, 2001) with the following issues to be resolved: 1) existing septic system certified from the Health Officer; 2) new septic system approved plan from the state; and 3) specific dimensions of addition which show the accessory dwelling to be within 500 square feet.

 

VOTE:

(5 - 0 - 0) The motion carries to continue the hearing until April 9, 2001.

 

THE CASE WAS CONTINUED UNTIL APRIL 9, 2001

 

Case #2196 - ML 10-315/PPS Trust - 70 Bridge Street - Seeking a Variance to Article XI Section 307-65 and 307-69 to permit a ground sign with maximum sign area of 150’

 

Mr. LaBonte read aloud the list of abutters.  There were no abutters present, which did not have their name, read.

 

Mr. Hennessey asked if an electronic sign was being proposed.  Mr. Rick Hammar informed that the sign was internally illuminated with a proposed electronic message.  He explained that they were only requesting the square footage, not the electronic sign (which would be less than 50% of the total signage of the sign to meet the regulation).

 

Mr. Hennessey stepped down, due to conflict.  Mr. Kosik explained that without Mr. Hennessey, the Board was now a four-member Board and three yes votes would be needed to have the Variance granted.  He gave the applicant the opportunity to either proceed, or postpone until the next meeting on April 9, 2001. 

The applicant (Mr. Don Nichols) decided to proceed with the four-member Board.

 

Mr. Rick Hammar of Pelham read the criteria aloud as follows:

 

Item #1.  There will be no decrease in the value of the surrounding properties: The proposed signage will be aesthetically pleasing and add to the property thus having no adverse effect on surrounding properties.

 

Item #2.  It is in the public interest: a) The proposed signage will allow for clear identification of the various businesses located at the address; b) add to the taxes being paid; c) public services messages will be freely displayed on the electronic reader board.

 

Item #3.  There is significant hardship to the land: Signage will be inadequate for the multi-tenant commercial property without the variance.

 

Item #4.  There is substantial justice to be done: Surrounding competitive businesses, which have "Grand Fathered" signs of significantly larger area, have a significant competitive advantage and serve the public better.

 

Item #5.  This request is within the spirit of the zoning ordinance: We are only requesting a variance to waive two zoning requirements and will meet all other setback and code requirements.

 

Mr. LaBonte read aloud the new hardship criteria as follows: 1) The zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; 2) No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; 3) The Variance would not injure the public or private rights of others. 

 

 

 

 

Mr. Hammar explained that he felt the zoning regulations were vague in connection with multi-tenant dwellings.  He noted that there were a couple problems with the site, such as the site distance and readability of the tenant signs due to the building being up on a hill.  He informed that this was the first case before the Board for a multi-tenant sign.  He said they had reviewed types of signs for the building to possibly use and informed that carved wood signs were preferable to electronic signs.  He said they had drawn out a proposed ground sign for the site and would need 104 square feet to finish the project. 

 

Mr. Hammar then highlighted a comparison between the old and new signage ordinances.  He pointed out there was wording confusion with the way the new ordinance was written.  He informed that he planned to discuss possible wording changes with the Planning Board.  He said the ground sign would not be as large as Pelham Plaza or Rite Aid.  Mr. Don Nichols added that he would landscape around the sign, which would be smaller than any of the signs on Route 38. 

 

Ms. Cindy Ronning, 9 Holstein Drive and Sunlite Realty said they were looking to create a professional looking sign to add to the plaza and increase the value to Route 38.  Mr. Kosik asked if the sign would have lit letters.  Ms. Ronning said they would like the option to do it.  Mr. LaBonte reiterated that if they did have a lit sign it couldn’t be larger than 50% of the total area of the sign.  Mr. Gleason said the issues before the Board were 1) seeking a Variance on the 50 square foot requirement, and 2) Variance for individual roof signs.  He confirmed that if the Variances were granted they would comply with all other provisions as applicable in the regulations.  Mr. Nichols and Mr. Hammar answered yes. 

 

Mr. Hammar stated again that the property had a hardship due to the hill.  He didn’t feel allowing the sign would set a precedent.  He was also concerned with the aesthetics of the building and therefore would prefer the individual carved wood signs and felt the Planning Board would agree.  He ended by saying a 50 square foot sign wouldn’t allow the tenants of the building to be seen and if the Variance weren’t granted, the only other alternative would be to have larger lit signs on the roof of the building.  He said the Board’s consideration was greatly appreciated. 

 

Mr. LaPolice believed that the Simplex case changes how Variances are viewed.  He felt the case before the Board was directly applicable to the Simplex case.  He didn’t feel that a 50 square foot sign would support the businesses at the location.  He ended by saying the Simplex case alone would be support enough to grant the Variance. 

 

Mr. LaBonte felt there was a problem with the way the zoning was worded.  Mr. Kosik felt the Planning Board should have taken everything into consideration.  Mr. LaBonte agreed.  Mr. Gleason felt the property was unique and felt the 50 square foot sign would pose a hardship on the applicant.  He also agreed with Mr. LaPolice. 

 

Mr. Kosik asked if any flashing lights to draw attention to the sign would be added.  Mr. Hammar answered no.  Mr. LaBonte asked if the sign would be two sided.  Mr. Hammar answered yes.  He also said he would be meeting with the Planning Board to revise the language as written.

 

Mr. Gleason noted that the applicant was requesting a Variance with two parts:  1) Ground sign of more than 150 square feet; and 2) Mounted illuminated roof signage for each individual tenant.

 

BALLOT VOTE:

Mr. Kosik - Yes

Mr. Gleason - Yes

Mr. LaBonte - Yes

Mr. LaPolice - Yes

 

VOTE:

(4 - 0 - 0) The motion carries.  Mr. Hennessey had stepped down.

 

VARIANCE GRANTED

 

Case #2197 - ML 3-137/RAYTHEON - 50 Bush Hill Road - Seeking a Variance to Article307.8 Section C to permit a 900 square foot addition to an existing building and construction of a 500 square foot electrical enclosure - Existing non-conforming use - Original Variance granted

December 9, 1968

 

Mr. LaBonte read aloud the list of abutters.  There were no abutters present, which did not have their name, read.

 

Mr. Gleason informed that he was a retired employee of Raytheon.  Neither the Board nor the applicant had reason for Mr. Gleason to disqualify himself from hearing or voting on the case. 

 

Mr. Daniel Thoureau and Mr. Steve Black appeared before the Board to present the case.

 

Mr. LaBonte asked if the gentleman had in writing an authorization from Raytheon to be its representative.  Mr. Black informed that they could submit authorization if the Board wanted to stipulate as such.  The Board decided to allow the gentlemen to proceed and did not feel written authorization was needed since both men were employed by Raytheon.

 

Item #1.  There will be no decrease in the value of the surrounding properties: The proposed addition will be aesthetically pleasing and in keeping with existing structures on the property. Mr. Thoureau also noted that the structure would help to block the noise from one of the remaining noise generators and the abutting property.

 

Item #2.  It is in the public interest: The proposed addition will generate additional tax base.  Mr. Thoureau noted that they needed the test site and capability to provide equipment to U.S. Government.

 

Item #3.  There is significant hardship to the land: Raytheon will not be able to use the property to its potential if variance is denied.  Mr. Thoureau informed that if the Variance was not granted they would not be able to continue conducting their business as they currently were.

 

Item #4.  There is substantial justice to be done: The use requested is consistent with variance originally granted December 9, 1968, and re-approved September 1980.  Mr. Thoureau believed the previous Variances stipulated that additions to the property would come from time to time, and this was one of those times. 

 

Item #5.  This request is within the spirit of the zoning ordinance: If Variance is granted, Raytheon will meet Town requirements, building code and will obtain necessary permits.  Mr. Thoureau noted that they would only be adding 900 square feet of building to a 50-acre parcel.

 

Mr. Thoureau said the 900 square foot building addition would be used for storage.  He said there were two hills on the property and one of which they were proposing a 500 square foot concrete block house also for storage and last, they would like to replace pavement with a concrete pad (in close proximately to the fence) to place equipment on it.  Mr. Black pointed out the 20-acre parcel, which Raytheon currently had a lease on until the year 2017. 

 

Mr. Gleason asked if the concrete pad would be within the setback requirements.  Mr. Black believed that the setback requirement was only for structures.  Raytheon intended to only place a concrete slab to place equipment on.  Mr. Thoureau said a Patriot Radar (which detects missiles) would be placed on the pad.  Mr. Kosik asked if the Radar was noisy.  Mr. Thoureau said it generated noise, but did not run on a generator.  Mr. Kosik asked if the Radar ran 24 hours a day.  Mr. Thoureau said at some times it did when tests were run, but generally it ran approximately 12 hours per day.  He noted that they conducted tests based on the Government’s requirements since 1985.

 

Mr. Bill Coleman, 233 Mammoth Road voiced his concern regarding the noise at the Raytheon site.  He said the noise had negatively impacted his life and property.  He asked that a condition be noted regarding noise, if Variance were to be granted.  He informed that he was the only person in the area and therefore, he didn’t have strength in numbers.  He said he did not know what was making the noise.

 

Mr. Gleason asked if the antenna would be moved to the other side of the property.  Mr. Thoureau answered no, and said it was only additional capability.  Mr. Gleason asked there were any abatement, which could be added.  Mr. Thoureau said Mr. Coleman would probably hear nothing if they stopped working on the piece of property adjacent to Mr. Coleman, and moved the operation to the other hill, but that was not Raytheon’s plan.  He said they had made attempts to abate the noise. 

 

Mr. LaBonte asked if a sound barrier wall could be added.  Mr. Thoureau said anything was a possibility, but he was not in a position to volunteer for it and seek Capital funds.  He said that sound/noise tests had been done a few years ago and the results showed that they were within the requirements.  He admitted that the equipment was noisy and regardless of being below the standards, it was annoying. 

 

Mr. Coleman said it was not just the amount of noise, but the duration.

 

Mr. Kosik asked if something could be done regarding the noise.  Mr. Thoureau said they had taken steps to abate and would do their best to try and improve it.  Mr. Kosik asked again if something could be done.  Mr. Black said over time they had made changes, and said the proposed changes weren’t going to affect the noise.  Mr. Gleason asked if Mr. Coleman detected an improvement.  Mr. Coleman said if he had to answer yes or no, he would answer yes. 

 

Mr. Gleason asked if any additional testing would be done.  Mr. Thoureau said they would be conducting tests at the ‘Hawk Hill’ which was over 300 feet higher.  Mr. Hennessey suggested placing restrictions on the time of use and limitation of emergency generators as they had in a previous case, since they were located in a residential area.  Mr. LaBonte agreed.

 

Mr. Kosik asked why the generator ran so often.  Mr. Thoureau said it was not the generator that made the noise, but the radar equipment.  Mr. Kosik asked if there were any missile testing.  Mr. Thoureau answered no. 

 

Mr. LaPolice confirmed that the testing began in 1984.  Mr. Thoureau answered yes and said it had been continuous since then. 

 

Mr. LaBonte asked how long Mr. Coleman had been in his house.  Mr. Coleman said since 1991.  He also said he had been informed about the noise, but not the duration. 

 

Mr. Black didn’t believe that the requested Variance would increase the noise, and if anything it would reduce it.  Mr. Thoureau said the noise from the machine could not be completely eliminated. 

 

Mr. LaPolice asked if in 1984 when the scope of testing was increased if a Variance was requested.  Mr. Black said it was included and addressed in the 1980 Variance. 

 

Mr. Kosik asked how many decibels the machine produced.  Mr. Black said a sound study had been done in 1992, but they did not bring it with them.  Mr. Kosik said if the Variance were granted he would like to put a restriction on the allowed decibels.  Mr. Hennessey said if the Variance is voted on and not withdrawn without prejudice he would stipulate a limitation of hours.  He said he would prefer to see a noise abatement plan brought in with the Variance. 

 

Mr. Kosik asked why they ran the equipment 12 hours.  Mr. Thoureau said those were the hours of a standard workday force.  He also informed that they run endurance tests for 24-hour periods for three days straight, which was part of their contract with the Government.  Mr. Thoureau said if they couldn’t run their tests, they would have to move due to hardship.  Mr. Gleason asked if the life cycle tests could be run at the other hill and limit the operation in Mr. Coleman’s area.  Mr. Thoureau answered yes in the future (because he had a scheduled test ready for Wednesday), as long as in an emergency situation they would still be allowed to use the property near Mr. Coleman.  He also noted that standard 12-hour tests would still be run where they currently were. 

 

Mr. Black asked which of the planned improvements the Board felt would add additional noise to the surroundings.  Mr. Kosik said when the Raytheon site was built, it was supposed to be quiet and out of the way.  Mr. Kosik wanted the noise to be addressed.  Mr. Hennessey noted that Raytheon was not being singled out, the Board has always addressed noise issues. 

 

Mr. LaBonte said it appeared the alternative site was a better site to conduct their work and asked if they had thought about utilizing the area.   Mr. Kosik recommended continuing the case until next month’s meeting on April 9, 2001.  Mr. Thoureau said it would seriously affect deliveries to the Government if they weren’t able to have the added capability by spring.  Mr. LaBonte asked if they were conducting test in that area currently.  Mr. Thoureau said not the Patriot. 

 

Mr. LaPolice asked if part of the Variance could be approved and asked the applicant if the most critical part was furthest away from Mr. Coleman.  Mr. Thoureau answered yes.  Mr. LaPolice asked if they would be willing to accept a stipulation that only part of the Variance approved would be the concrete pad and 500 square foot building and come back before the Board for the 900 square foot addition.  Mr. Gleason added that they should include a noise abatement plan when they returned.  Mr. Thoureau informed that he would keep the 12-hour operation as they have been since 1985, but would move the endurance tests to the other site as long as a contingency plan was in place in case of emergency.  Mr. Hennessey suggested that the plan be carefully written out so that both parties understood the intentions. 

 

Mr. Black asked that the Variance for the 900 square foot addition to the existing building be withdrawn without prejudice.  Mr. Kosik informed that they would have to reapply when they come back before the Board.  The Board accepted the withdrawal.

 

Mr. Gleason confirmed that the Board would be voting on the amended Variance as follows:  the construction of a 500 square foot electrical enclosure and construction of a 40’x85’ concrete pad.  Mr. Kosik confirmed that they would make an honest effort to do something with the noise level.  Mr. Thoureau answered yes.  

 

BALLOT VOTE:

Mr. Kosik - Yes (as amended see minutes from this meeting)

Mr. Gleason - Yes

Mr. LaBonte - Yes (for 20’ x 25’ concrete enclosure on Hawk Hill and 40’x85’ concrete pad on Hawk Hill; addition to existing building withdrawn by applicant)

Mr. LaPolice - Yes ( 1. 500 square foot building, 2. concrete pad only; future variance must include noise abatement plan)

Mr. Hennessey - Yes

 

 

VARIANCE GRANTED AS AMENDED

 

ADJOURNMENT

MOTION:

(Gleason/Hennessey) To adjourn the meeting.

 

VOTE:  

(5 - 0 - 0) The motion carries.

 

               

 

The meeting was adjourned at approximately 10:30 pm.

 

                                                                                                Respectfully submitted,

 

                                                                                                Charity A.L. Willis              

                                                                                                Recording Secretary