DUNBARTON ZONING BOARD OF
ADJUSTMENT
TOWN OFFICES -
The regular monthly meeting of the Dunbarton Zoning Board of Adjustment was held at the above time, date and place with Chairman John Trottier presiding. The following members were present:
John Trottier, Chairman
John Herlihy, Vice Chairman
Alison R. Vallieres, Secretary
David Nault
Gertrude Dulude
Ron Slocum, Alternate
John Van, Alternate
Scott Ives, Alternate
The
Chairman verified with the Secretary that the meeting had been posted in a
timely fashion in accordance with State Law in three public places throughout
the Town and published in the Concord Monitor for one day.
Approval of Previous Meeting
Minutes:
A motion was made by David
Nault to accept the previous month’s minutes of Monday, February 3, 2003. The motion was seconded and passed
unanimously.
7:00 P.M. – PUBLIC HEARING - ADMINISTRATIVE APPEAL FROM
HERB AND LARAINE ALLEN REGARDING BUILDING PERMIT APPROVAL FOR E. DOUGLAS RYAN
(PERMIT N0. 121-2002) GRANTED ON JANUARY 16, 2003 TO ALLOW HIM TO START
CONSTRUCTION ON A CONVENIENCE STORE LOCATED ON ROUTE 77 (CONCORD STAGE ROAD) IN
THE MANUFACTURED HOUSING DISTRICT IN
At
this point in the public hearing, the following members stepped down:
David Nault, Conflict of
Interest
Alison Vallieres, Own property
at Pages Corner and stepped down at original public hearing
Voting
members will be as follows:
John Trottier
John Herlihy
Gertrude Dulude
John Van, Alternate
Scott Ives, Alternate
Scott Hogan, Attorney for
the Allen’s:
Stated for the record that
his clients are not opposed to the development of the property. Stated that in 1992, a Special Exception was
granted for the purpose that we are here to discuss with certain conditions. The applicant went from this Board (Zoning
Board) to the Planning Board for a Site Plan Review. On
The
first issue is the only way to make commercial use of property in Dunbarton is
to obtain a Special Exception. Back in
1992, 14 conditions of approval went with the Zoning Board of Adjustment
listing a variety of conditions. The Building
Permit that was issued did not include the Zoning Board conditions. It is obvious
that if the applicant does not adhere to the 14 Zoning Board conditions,
they would have to seek an amendment to the Special Exception.
In
1993, when the Planning Board approved the Site Plan, they imposed 10
conditions of approval and if you read the Zoning and the Planning Board, there
are some slight inconsistencies between them.
Both Board dealt with issues but there is no mention of the Zoning Board
conditions. That
Site
Plan Approval was granted in 1993. Since
that time until now, there was no construction.
The law states that for a site plan to be “vested” the applicant must
begin “active and substantial development” within twelve months of the date of
approval and also that the site plan must be properly recorded at the registry of
deeds. Hogan stated that the Site Plan
was not recorded at the Registry nor was there active and substantial
development. Attorney Hogan stated
therefore the Site Plan is now void.
Attorney
Hogan stated that the reason this is so important now is when we were all here
the last time, we heard the Town Police Chief speak about traffic along this
road. He noted speed, stop sign
violations, etc. This is since the
original approval ten years ago. There
is now a residential road that has been constructed along this highway and this
project really needs a new Site Plan Review.
At
the 1993 approval of the Site Plan by the Planning Board…. there were specific discussions re
landscaping and buffers, etc. There is
no specific requirement for a landscape plan to be submitted to the Town. The site has been clear cut. Even is this were a valid permit, when
application was submitted to the Board, there was a requirement for a plan. There are landscaping issues, having a
commercial facility within a residential area.
Buffer between proposed use and residential. Should screen the commercial use from the
residential property. There are particular
lighting requirements. This Board in
1992, when it granted the Special Exception included special conditions about
lighting, etc. Look at the approval that
has been given now. The approval from
1992 is valid. It is the only one valid. The Planning Board approval made in 1993 is
void. They should be required to go back
to the Planning Board who will render a new approval with new information that
will address ten years of changes in traffic.
Attorney
Hogan stated they should have:
1.
Recorded the Site Plan
2.
Started construction within the 12 month period
Attorney Hogan stated that either the law changes or the conditions change. In this case, traffic requires that the site be in compliance with public safety, etc. It is not in compliance because it does not address the new neighborhood of Old Fort Estate. That was not there ten years ago. There is ten years of traffic increase. When we talk about good land planning, what is considered “active and substantial” development. This applicant did nothing to vest themselves. The Board has all the testimony from the police re the increased traffic in this area. This intersection was at near failure prior to the store and would have been in failure after, etc. Need current up to date traffic analysis because we don’t have a recent traffic study and that is why the applicant is required to go out and get that justification.
Members of the Board questions:
Scott
Ives - Noted that if the process had
been followed (recording of site plan), as time went by, the abutters would
have know there was a commercial development approval on that parcel. That would have been part of the
process.
John
Trottier – Asked for a copy of the approved Site Plan.
At
this point in the public hearing, John Turner, Assistant Building Inspector,
presented a signed copy of the Site Plan for the Board’s inspection.
Attorney
Scott Hogan stated that the proposed plan for the building was slightly larger
than the originally approved building.
(The original building was to be 30’ x 100’)
John
Trottier noted that the conditions of the Zoning Board approval were never put
on the final Site Plan.
Attorney Michaels stated he agreed with some of what has been said. Stated his clients do need to comply with the conditions required by the Zoning Board of Adjustment and the Planning Board. We would agree with you. The building is the correct size and there has been no attempt to modify the size.
Attorney
Michaels stated he significantly disagrees with Attorney Hogan’s explanation of
Statute 674. This Statute is not designed
to wipe out approvals. If you do not
record the Site Plan Approval, then you run the risk of the very next year
having a change in the ordinance. Once
you reach four years, you still have an approved plan. Nothing lapses. You merely lose the exemption and protection
of the statute. An ordinance change
could impact a plan. Our best
information is there has been no such ordinance changes since 1993. Therefore the approval Site Plan is
valid. If there are ordinance or
regulatory changes, this would affect the approved Site Plan.
Attorney
Michaels stated that the recording of the Site Plan at the Registry of Deeds is
not going to show up in any title search.
You are not going to find it. You
would have to do a title search of all properties in the general area to find
this. If an owner is concerned about
what is happening in the Town, he should be going to the Zoning Board of
Adjustment and the Planning Board.
Attorney
Michaels stated that basically the Board must determine if the Building Inspector
has done something wrong. If he did by
not including the conditions from the Zoning approval, the answer is yes. We are stating we have every intention to
comply with all the Zoning Conditions.
This Site Plan has not disappeared.
We strongly recommend the Board uphold the Building Inspector’s
decision.
Attorney Hogan stated that to be fair, the Town’s
standards are still basically the same.
Could speculate on circumstances.
We don’t need to speculate on circumstances, we know. This has been documented recently at the last
hearings. Need adequate buffers, even in
1992. The access to the back of the
property is now a residential road, etc.
There are issues such as kind of lighting, emergency access. No one knows what kind of landscaping. On the Building Permit which has been
granted, there is no requirement for landscaping. How are they going to address the access onto
Attorney Gregg Michaels
presented the following documents for the record:
1.
State of
2.
Updated State Approval for Septic System (attached)
John
Trottier – Asked if there was a detention pond on the Site Plan. There was no detention pond shown. It was noted there was an increase in the
culvert size. It was also noted there
was a note on the Driveway Permit Item #14 as follows:
14. Driveway and related roadway
modifications are to be constructed as shown on plans prepared by
Keach-Nordstrom Associates, Inc. for the Pages Corner Convenience Store dated
November, 2002 and last revised on
Abutters
were read as follows and noted that all had been notified by certified mail:
Laraine
Allen – Present, stated she was represented by her Attorney Scott Hogan.
Karen
Gincott – Present. Agree with what
Attorney Hogan has said and want to add a little bit more. There is no question as to whether or not the
Zoning Board has approved, etc…. Need oversight of the project and compliance
with what has been approved. I hope that
we can have an opportunity to go back to the Planning Board. I am a neighbor and believe in being a good
neighbor. I also believe in “Good Fences make Good Neighbors”. I want to be able to be heard. I have not been contacted, and they have made
no effort to talk with us. Would like to
have an opportunity to talk. I do
believe that this issue is about the time lines around the Site Plan
Review. I have already met with the
Selectmen. Other Towns have time limits
on Site Plans. When I bought my house, I
had no idea there was a Special Exception on this lot. This is not where I want to live. My issue is around the vegetation and the
Planning Board and Zoning Board conditions and how they will be
interpreted. Would like to have a say in
how they get interpreted. I came home
one day, and I see the property clear
cut. The neighbors have to live with
that.
Sjacqueline/Richard
Brough – Present. Stated she had the
same concerns as previously expressed by Karen Gincott and Scott Hogan.
Antonia/Julie
Rabbia – Not Present
Robert
Michael, Sr. – Not Present
Other Members of the Public:
At this point in the public hearing. Alison Vallieres, Secretary, stated
she had just received a telephone call from Scott Harrington stating he was in
favor of the convenience store being built there. He would try to e-mail the correspondence. In lieu of the fact that the e-mail did not
come through, he wanted to be put on record with the following statement:
1.
The people protesting the convenience store have no right to waste
taxpayer’s money on legal appeals. They
had the right to purchase the adjacent property, and they should have made an
attempt to purchase. They had the option
to buy the property before this was proposed.
2.
The Store should be allowed to be there.
The Town has been denied a functional Country Store in the past. Hopefully there will be a functional Country
Store and Restaurant there in the future.
Mrs. Karen Harrington – Stated she lives in Dunbarton and has worked with
Thomas Thorne and she is sure they will address the people’s concerns. She stated they were excellent people to do
business with.
Gary Chicoine – Stated he was the builder and also a resident of
Dunbarton. Said when the Planning Board
approved Old Fort Estate, they took into consideration the fact that there was
a granted Special Exception on this property.
Old
Board returned to the public hearing at
At this point in the public hearing, Patty Shearin stated she wanted to
go on the record as follows:
Stated she had a question. We
raised the issue last time re traffic on that road. That site is going to change a little
bit. Would be an impact. With this plan such a long time ago, traffic
should be addressed again before the permit is issued.
At this point, John Trottier stated that the owner has received an
amended driveway permit from DOT. The
driveway permit does reference a plan of Keach-Nordstrom which will be used for
construction.
Brian Naro -. Asked if the
Scott Ives indicated there is a
Jim Marcou, Planning Board Chairman – Stated that the right of way on Old
Fort Estates was expanded to 75 feet wide for the first 300 feet for an
expanded right of way to make provisions for pull off traffic.
Don Prior,
At this point, the public hearing was closed.
DISCUSSION:
The Board went through the specific requests of the Allens’ appeal as
follows:
A.
Schedule a hearing on this Appeal of Administrative Decision - Done
B.
Grant this Appeal of Administrative Decision:
C.
Rule that the Special Exception Conditions imposed by the ZBA in 1992
remain in effect; Motion
D.
Rule that the applicant must receive current site plan approval from the
Planning Board; and, Motion
E.
Grant such other relief as may be just and equitable.
Scott Ives stated that he felt that the question regarding the building
permit as to whether or not it was correct needs to be re-looked at for the
inclusion of the Special Exception conditions along with the Planning Board
conditions so there is really no gray area about the development of the
site. The current permit does not
reference the current Zoning Board requirements. In my estimation, the permit does not meet
the standard. A new permit should be
issued and should include all the requirements of both the Zoning Board and the
Planning Board. They should be listed on
the permit.
John Trottier noted that all the 24 conditions should be listed on one
piece of paper so they know what they should be abiding by. The Building Inspector is the one to enforce
these conditions. The Building Inspector
knows the requirements. This way the
applicant and the owner have some sort of protection.
Board discussed whether they should have the Building Inspector amend the
existing permit or void the original permit and write a new permit to include
all 24 conditions.
John Herlihy stated he didn’t think the Building Permit should be null
and void. The Building Permit could be
amended to reflect both the Zoning Board and Planning Board conditions. He stated he thought the permit could just be
amended, etc. The building is the right
size.
Ron Slocum asked if the Building Inspector voiding the original permit
and issuing a new permit would cause any problem in the numbering system for
building permits.
John Turner, Assistant Building Inspector, stated this would not be a
problem. Stated this way it would be
all in black and white and all conditions on one piece of paper.
John Van stated he thought the Board should request that the original
Building Permit be voided and a new one issued to include all Zoning and
Planning Board conditions.
Scott Ives stated that the Boards are volunteer, etc. We also have part-time Building
Inspectors. Difficult to track what is
to happen and what isn’t. Things weren’t
documented. I still believe in the
goodness of mankind
Gert Dulude stated she agreed with Scott Ives and John Van. We should start with a clean slate.
The end result of the discussion was that the Building Inspector should void the original permit and replace it with a new permit listing all 24 conditions of both Boards.
The Board agreed there have been no ordinance changes since 1992 that would affect the original Site Plan Review, therefore the Site Plan Review would not need to go back to the Planning Board. They noted the statute is specific and changes in physical conditions to the property and surrounding properties were not included in or contemplated by the statute and could not be interpreted as ordinance changes.
MOTION: (C – rule that the Special Exception Conditions imposed by the ZBA in 1992 remain in effect)
Scott Ives made a motion that the Dunbarton Zoning Board of Adjustment GRANT Herb and Laraine Allen’s request that Special Exception Conditions imposed by the Zoning Board of Adjustment in 1992 remain in effect and the original Building Permit #121-2002 is ruled invalid because it does not address all conditions required by both the Zoning Board and Planning Board and a new permit be issued stating all the requirements of both the Zoning Board (1992) and Planning Board (1993) in addition to all of the Building Inspector’s requirements which were included on the original permit. The motion was seconded by John Van. The motion passed unanimously.
MOTION: (D – rule that the applicant must receive current site plan approval from the Planning Board)
John Herlihy made a motion that the Dunbarton Zoning Board of Adjustment DENY Dr. Herb Allen and Laraine Allen’s request that the applicant (E. Douglas Ryan/Thomas Thorne) must receive current site plan approval from the Planning Board. The motion was seconded by Scott Ives. The motion passed unanimously.
There being no further discussion, the meeting adjourned at
Respectfully
submitted,
Alison
R. Vallieres
Secretary