Minutes of the Rockingham Development Review Board December 12, 2018 Members present: Pat Moyna (Chair), Thad Guild, Vincent Cherico, Archie Gleason, Remy Walker. Staff present: Chuck Wise. Members of the Public present: Andrew Smith, Lynne Lewandowski, Nicole Duquette, Bob Derusha, Ray Massucco, Wendy Harrison, Deb Wright. P.Moyna called the meeting to order at 7:00pm. P.Moyna reviewed meeting procedures. 1. Agenda Review: No changes 2. Public Comment: None 3. Approval of Minutes: November 14 th T.Guild motion to approve the minutes, A.Gleason second. PASSED. R.Walker abstains. 4. Organizational meeting V.Cherico motion to adopt the 2019 Rules of Procedure, T.Guild second. PASSED. Nominate Pat Moyna as Chair of the Development Review Board (T.Guild, 2 nd A.Gleason) Nominate Kath Martin as Vice Chair (P.Moyna, 2 nd T.Guild) Nominate C.Wise as Secretary (P.Moyna, 2 nd T.Guild). PASSED. Set 2019 DRB meeting time at 6:30pm C.Wise reminded members that letters of appointment are due. C.Wise ran an advertisement soliciting volunteers with no response. 5. Public hearing: 4363 1 A 18 Secondary sign administrator appeal 154 Rockingham Street Petrogas Group of New England 6. I will provide a brief zoning overview and defer to the Applicants for a project presentation. C.Wise provided an overview of the Appeal. C.Wise issued an Administrative Decision 4363 1 18 on October 22nd. An interested person, as defined by state law, may appeal any decision of the Administrative Officer to the Development Review Board within fifteen days of the Decision. The Abutters, present tonight, submitted an Appeal to this decision on October 30th. By law, the property abutters qualify for Interested Persons status. Their Appeal also falls within the defined time period allowed under state law. The DRB must hear all appeals of the Zoning Administrator. The DRB shall decide whether a Decision is upheld or overturned. As the Zoning Administrator, C.Wise s testimony is limited to the Administrator Decision and any overview of Administrator matters required. All public and abutters notifications were completed in accordance with state law. No one provided written testimony regarding the appeal. C.Wise made note of B.Derusha who is pursuing interested person status using a petition. Page 1 of 7
B.Derusha passed out his petition. P.Moyna read the petition aloud (attached). Discussion followed on the petition and how a petition qualifies an individual for interested person status. B.Derusha stated his interest in this application focuses on the challenges between the residential and commercial zoning districts. B.Derusha stated his interests pertain to these larger issues and he has ability to communicate the history of the property (not the present applicant) and its impacts to residential land uses. P.Moyna asked if B.Derusha s interests are because he lives in the vicinity of the project area. B.Derusha stated yes and that many of the signatures on the petition are also in the vicinity of this project. R.Massucco informed the DRB that the Applicant needed advance notice of this petition and an opportunity to review the signatures. R.Massucco further examined state statute (4465) and said Interested Parties can appeal a decision but that is to appeal a decision versus participating at a hearing where an appeal is being heard. The chance to appeal the decision has expired, so coming in with this petition at the hearing means that the petition is late and that the appeal period has already passed. R.Massucco stated the Abutters applied in a timely fashion, but that this appeal is late. B.Derusha stated that historically the PC ZBA would receive interested persons appeal requests at the hearing. Anyone that wanted to participate in the hearing would come to the Board and make that request. The Board always approved petitions during the evening of the hearing. P.Moyna asked C.Wise when he knew about the petition. C.Wise informed the Applicants when it was developing. R.Massucco agreed that this petition was known about but that the Applicants were never given the opportunity to examine the petition and its signatures. C.Wise confirmed B.Derusha s statements that traditionally the hearing is the forum to receive requests for interested persons status. N.Duquette asked about the interested persons status. What is the timeframe for submitting appeals and is there an expiration to all of this? C.Wise stated the current legal argument is whether B.Derusha can participate in a hearing versus submitting his own appeal. Historically, people wanting to participate in a hearing brought up their request to the DRB at the hearing. P.Moyna stated granting status right now does not make sense. We will need legal feedback on how to proceed with this petition. Once we commence with testimony, we do not want this being an outstanding issue. For example, if it was decided later to not grant status, then how do we discount the testimony that was heard at the hearing? This is particularly important because this Appeal could be appealed again. The best option is to continue the hearing until we get some clarity. #1 Petition needs to be provided to the Applicant so they can do their due diligence and meets the criteria. #2 Can granting Interested Person status during the Appeal process open this up to a second appeal? That by giving Interested Person status tonight, does that allow them to Page 2 of 7
appeal the DRB s decision separately? This is legally murky and we need clarity on how to proceed. V.Cherico discussed the motivation behind seeking interested person status and V.Cherico would like to know about the history. B.Derusha indicated that he was not prepared to give testimony before being granted interested person status. His interests go back to a decision he participated on in 2006. P.Moyna agreed to limit testimony until this issue was decided. B.Derusha clarified that even the DRB s decision to grant or not grant party status can be appealed. V.Cherico stated he would like legal input before proceeding with this hearing. T.Guild reviewed the language that supports a petition appeal. C.Wise asked about hearing some testimony and waiting later to decide the petition. Testimony could be received and later on that testimony can be considered as coming from an interested person or as a citizen. P.Moyna stated that we should be cautious about hearing any testimony before getting clarification on this petition. Once we hear testimony, we cannot unhear this testimony at a later date because interested person status was not granted. Further, there is a gravitas associated with giving testimony as an interested person versus a citizen and that this distinction matters. A.Smith asked if there is a time limit associated with the appeal and if delaying this hearing runs out the time limit for the appellant s right to appeal? P.Moyna stated no that this is a normal part of the process and once it is started it is started. We can have a hearing, realize we need more testimony and decide to continue the hearing. We can continue hearings as long as it takes to get the testimony we need to make a decision. C.Wise emphasized that his certification that an appeal was received within the deadline means the Appellants rights are protected. A.Smith asked that this hearing be delayed to the next meeting and to not have it delayed any further. P.Moyna stated this is generally the rule and we only push out hearings when Applicant s are not ready to provide the additional information that was requested by the DRB. C.Wise stated that the Board is limited in granting party status if a person meets the legal standard for petitioners. C.Wise stated the a petitioners motivations are not relevant. P.Moyna reiterated the questions that need answers. Can this petition be accepted during an appeal when it was not done during the 15 day appeal period? Does participating in this hearing, then open this up to a 2nd possible appeal? R.Massucco stated there is a significant difference of testimony received from an interested party or a citizen. These are important legal threshold questions that should be resolved before receiving testimony. B.Derusha clarified that this appeal is restricted to a single sign on the west side of the building. This has nothing to do with the other Decisions about this property. This appeal is only focused on one Administrator action. Page 3 of 7
T.Guild asked for guidance on what B.Derusha is seeking in terms of an appeal and interested person s status. B.Derusha stated he only wants interested persons status to participate in the public hearing as part of the Abutter s existing appeal. P.Moyna stated the hearing will be continued and instructed C.Wise to give a copy of the Petition to the abutters and to seek answers to the legal questions raised. C.Wise asked if the Petition should be certified by the Town Clerk and P.Moyna agreed that should happen. C.Wise stated the hearing will be continued to the next regularly scheduled meeting on January 9 th. 7. Public hearing: 4375 18 Addition of parking spaces Site Plan Review with Variance 150 Rockingham Street Petrogas Group of New England C.Wise provided a zoning overview. The Property Owner is Petrogas Group of New England, Inc. The proposed project is for 4 parking spaces and site improvements at 150 Rockingham Street which requires a variance. Normally a review of parking spaces is a straight forward site plan review and approval. However, when a commercial use abuts a residential district, the spaces shall be no closer than fifteen feet to the property line. The Applicants will provide us a presentation that shows portions of the proposed parking that violates those setback requirements. Further, on the parking there is also a front buffer strip of land that must be at least 15 feet in width. The bylaws do not offer much guidance on what constitutes a 15 foot front strip of landscaped land. Is it 15 feet from road edge? Or 15 feet from edge of sidewalk? Again, there are portions of the proposed parking which violate these required setbacks. As the Administrator I processed this application as a variance because it was clear the property is an irregular shape, small in size, and possesses obvious development constraints. The property has an abandoned residential house. The DRB issued a demolition permit for that house. Along with the house slated for demolition, the existing site is a mix of lawn, high grasses and brush. There is a line of trees that screens 150 Rockingham Street from the abutting Atkinson Street residential properties. The Property is located within the Commercial Business Expansion 14 zoning district and the Downtown Design Review overlay district. The property directly abuts the Residential 7 zoning district to the south and west. The property is at the northern terminus of the central business district and the gateway for motorists entering the village. All public and abutter notifications were completed in accordance with state law. We have a written letter of submission from one of the abutters which was read aloud and attached to these minutes. N.Duquette provided an overview of the project. There are two parcels that are owned by 7 11. The driveway for 154 Rockingham Street does encroach upon this other parcel. This parcel we are proposing to tear down the building and construct 4 parking spaces. We have two different lines that depict two different parking stall dimensions (22 feet or 18 feet in depth). The shorter depth allows less encroachment, but we are fine with the 22 feet. There is a rain garden that is intended to catch water run off and snow melt. The rain garden has organics and sand to filter out any toxins in the water. Page 4 of 7
Meetings with the abutter resulted in the changes to the design. N.Duquette has an email from the abutter accepting these modifications to the plan (emails provided to C.Wise). The abutter asked for an extension of chain link fence and plantings which were completed. The hedge line is more mature than is typical and will be 4 5 feet tall at planting. The abutter wanted the chain link fence on the outside (facing 150 Rockingham St) so that people will see the fence and not attempt to enter the shrub line. With these changes in landscaping, the DRB will need to approve the original decision for demolition of the property. An earlier decision called for maintaining the existing trees which are past their normal lifespan and should be removed. N.Duquette stated there will be a fence installed in the rear of the building to prevent people from shortcutting behind the building and further impacting the abutters. When the fence is installed, people will need to walk around to access the store. C.Wise confirmed that the fence was reviewed by the BF Fire Chief and the Chief agrees with the installation of a fence. N.Duquette stated the abutter requested the parking spaces be shifted towards Rockingham Street by 3 feet which was done. A curb between the parking spaces and Rockingham Street was also added based on a request at the last hearing. The last request was to plant a row of hedges that would shield car headlights from residential properties to the south of the parking. R.Massucco reviewed the variance portions of this project. R.Massucco reviewed the parcel and the shape that is left with after applying all the various setbacks. After applying setbacks, the available land left for development is a narrow strip of land. The store has 7 spaces and needs a minimum of 13 14 spaces per the town s zoning requirements. The additional 4 spaces would allow 7 Eleven to come more into conformance with parking standards. Parking in this area is consistent with neighboring land uses. R.Massucco reviewed all the various abutters and noted they are mostly commercial land uses with parking. There are minimal impacts to property abutters. The extent of encroachment is minimal. The proposed area of encroachment is only 3.4% of the total area of the lot. This is a nominal impact. These calculations are based on the 22 foot long spaces and the level of encroachment declines with the 18 foot deep parking stalls. This is a minimal incursion into the property setbacks. This meets the requirement in the bylaws to allow for the least deviation possible. R.Massucco reviewed the parking layout of the 7 Eleven. The store has a lot of traffic and the additional spaces will help the business and customers. Hopefully having more parking available will reduce the frequency of illegal parking along the sidewalk and adjacent to the fuel pumps. R.Massucco stated this property does have geometric constraints that were not created by the Applicant. This lot is not suitable for much development. In terms of practicality, parking is a good alternative to make this lot useable. Page 5 of 7
R.Massucco stated that the 4 spaces is a minimal impact. The DRB cannot require the 7 Eleven to meet the current parking standards, but that these additional spaces does move the business closer towards the ideal parking standards. The hardship has not been created by the Applicant. The parcel is bounded by the sidewalk, road, and abutters and not subject to change. R.Massucco discussed the difficulty of meeting the setback because of the shape of the property leads to a point that impacts the parking area. This is not an encroachment across the entire length of an abutters property but an encroachment right at this one point where the two properties meet. If this property point was moved 8 feet this would not be an issue. R.Massucco stated that the applicant has addressed all the abutter concerns by installing landscaping and moving the parking spaces away from his property. The lighting in the rear of the building has reduced the amount of activity back there. This area has been cleaned up and discouraged people loitering back there. R.Massucco stated the parking will not change the character of the neighborhood which has consistent uses all along this road. The DRB has allowed for shorter spaces and there is precedent for this design choice. R.Massucco emphasized that the level of encroachment is unique. If this was a structure, that would be more of an impact to an abutter. What is being discussed here is strictly on the ground and there will never be a structure proposed at this property. There is no light coming from windows, fans, or other visual or noise impacts common to buildings. V.Cherico asked about the landscaping and the provision to ensure it remains maintained. R.Massucco stated that decisions typically require maintenance of landscaping and that it would be difficult to spend thousands on this only to let it go unmaintained. P.Moyna opened the project up to citizen comment. L.Lewandowski stated she is proshrubbery but can the Applicant plant a fabulous evergreen? A spruce tree or two would be a good long term investment to block the light. A.Smith appreciated the hard work done at this site. A.Smith provided some thoughts on the variance and other considerations with these properties. A.Smith requested that the print out of his testimony be included in the minutes (attached so not repeated in these minutes). N.Duquette stressed that the abutters complaints have been received and that the Applicant is working with the Town to resolve them. It is important to note that this work is ongoing. N.Duquette provided some detail on a traffic study. This is an existing land use and there have been no changes to the business. Typically traffic studies are done when there is a new use proposed. Because this use isn t changing, a traffic study will not Page 6 of 7
provide additional information it would just provide the existing numbers to the store. The additional parking is to improve the safety of the site. R.Massucco stated the guardrail was installed in 2001 to channelize access. There was a time when motorists could enter this site from any direction. There is no additional pumps, no additional square footage being proposed. There is no problem with sight lines. The store remains unchanged. A.Smith stated the Board could require a traffic study. A.Smith stated there has been an increase in activity to include what was stated in the original application. The number of deliveries to this site has increased substantially. There are many deliveries to this site when the application only stipulated 1 delivery per day. The additional parking will provide some order to the site. It may not ameliorate some of the problems with people parking on the sidewalk or other inappropriate locations. Pedestrian and motorist safety is something that should really be looked at and to give serious thought to a traffic study. P.Moyna asked for clarity on L.Lewandowski s request for tree plantings. L.Lewandowski pointed out the possible location for trees to be planted which is behind the parking spaces. 8. Other business: The public hearing for #4376 18, the bicycle shelter and storage facility at the Rockingham Town Offices has been continued. C.Wise introduced W.Harrison who is the new Municipal Manager. 9. Meeting Adjourned @ 9:11pm Page 7 of 7