Planning & Zoning Board Notices & Minutes

Jan 22, 2019

Approved Zoning Board Minutes - January 22, 2019






6:00 PM



PRESENT:  Chair Jessica Daine, Vice Chair Jerry LeSage, Ralph Hodgman, David Rochefort, Jim McMahon, George Morgan (alternate), and Joanna Ray (recording secretary)


EXCUSED:  Guy Harriman (alternate) and Eddy Moore (alternate)


OTHERS: Town Manager Andrew Dorsett, Zoning Officer Milton Bratz, Atty. Morgan Hollis, Atty. Michael Ransmeier, Dave Sanderson, Kevin Correia, Max Puyanic,  Atty. Jason Bielagus, Stuart Scharff, Amy Manzelli, Barbara Whiting, Jennifer Fulford, Joseph McMahon, and Nathan Krol


Chair Daine called the meeting to order at 6:00 and reviewed the procedure for the meeting.


Continuation of:

Alrig USA c/o Morgan A. Hollis, Esquire / Applicant – ZBA18-12 – Request for a Variance relating to Article V, Section 5.01 of the Littleton Zoning Ordinance to allow a building over 35’ in height at 551 Meadow Street, tax map 76-12, in the C-I zone.  The case was accepted and a full board of regular voting members were present.  Chair Daine read the following statements from the submitted application:

  • Granting the variance will not be contrary to the public interest because of the topography of the site and proposed location of the building, allowing an extended roof line for an additional 7 feet will not materially alter the character of the neighborhood.  The building will not appear to be materially taller than the permitted height.  Allowing 7 feet higher for the roof will not threaten public health, safety or welfare.
  • The spirit of the ordinance would be observed because of the topography of the site and proposed location of the building, allowing an extended roof line for an additional 7 feet will not materially alter the character of the neighborhood.  The building will not appear to be materially taller than the permitted height.  Allowing 7 feet higher for the roof will not threaten public health, safety or welfare.
  • Granting the variance would do substantial justice because the height is necessary to allow construction of the standard model facility designed for Convenient MD.  Because the lot is significantly lower than the right-of-way and properties across the street, exceeding the 35 foot limitation on height will not cause any harm to the public or any private rights, but requiring a reduction in height will require a significant redesign of the building.
  • The values of the surrounding properties would not be diminished because while slightly higher than permitted, allowing the additional height will have no negative impact on values of the surrounding properties because the building is sited in a low spot and will not appear to exceed the height.  The use is permitted and will appear like other permitted uses in the neighborhood.
  • No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property. Because of its topography, there is no fair and substantial relationship between the purpose of maintaining consistent maximum heights and the application of the prohibition to this property.  
  • The proposed use is a reasonable one because it will allow construction of a standard design medical facility with correct proportions of design.

Atty. Ransmeier stated he is the local council for the applicant.  He can be reached at 76 Main Street if there are any questions. 

Atty. Hollis was present on behalf of Alrig USA and Convenient MD.  Other representatives as well as the architect from Convenient MD were also present. Atty. Hollis stated that the Board is in receipt of many letters of support. The proposed plan is to tear down the current building and build a new one that will be leased to Convenient MD.  The property is 2.87 acres and is located in the C-I zone.  The proposed use is permitted in this zone.  The property is significantly lower than Meadow Street.  The elevation on Meadow Street is 738’.  The low area on the property is 725.6’. 

Atty. Hollis submitted a booklet containing thirteen tabs with various pictures and maps related to the proposed location.  Tab 1 is an Alta survey of the existing site.  The edge of the wetlands area is noted and the current building sits in a low depression area that is a 13’ grade change.

Tab 2 is a photo taken from up on Meadow Street.  Atty. Hollis stated that the drop off of the property can be seen as well as the vast wetlands.  Atty. Hollis informed the Board that Convenient MD is a destination, an urgent care facility that people get in their car and head for instead of driving to an emergency room.  Most of the patients are not from this community, but from neighboring ones.  Travelers rely upon some form of information, such as GPS, to get where they are going and that is not always reliable.  It is important for Convenient MD to have good visibility.  The best way to be seen is to have the sign on the building.  Anthem and the Exeter Fire Department sent the Board letters of support stating how the signage on the building makes for good visibility.  The proximity to the interchange also makes this a good location.  The building is not very visible when driving south on Route 93.  Raising the ground, building, or both is needed.

Tab 3 shows the cost of raising the site to various elevations.  To raise the property up to Meadow Street level will cost $480,000 and require retaining walls.  The proposed plan will be for a combination of raising the elevation of the land and raising the height of the building.  The Board reviewed the Zoning Ordinance definition of building height.  This is defined as the vertical distance from grade to the highest point of the coping of a flat roof, to the deck line of a mansard roof or to the average height between eaves and ridge or gable, hip of gambrel roofs. The application indicates that the peak will be 5’ higher than allowed.  This site is very low and they do not want to add more fill.  Jim asked for confirmation of the finished floor elevation.  Atty. Hollis replied it will be at 730’

Tab 4 shows the retaining walls with an elevation of 731’.

Atty. Hollis discussed the first criteria on the variance application which refers to whether or not the application is requesting something that would be contrary to the public interest or change the character of the neighborhood.  This is a major retail area with big box stores set back from the road and across the street.  The abutters across the street are at 733’. If his applicant was to raise more of the ground for the building, it would be above the abutters.  The proposed plan does not alter the character of the neighborhood because it a commercial building in a commercial zone.  It will not threaten the health, safety or welfare of the public.  The Fire Department has reviewed the plan and has not provided any negative feedback.  Atty. Hollis added that 35’-42’ is not a big difference of how the Fire Department would respond to the building.

Atty. Hollis discussed how the urgent care facility is a permitted use and his applicant is asking for an extra 7’ to the height of the building.  At this height, there will be less people getting lost tryingto find the building.  The lower level is less visible.

Atty. Hollis stated he did not feel the proposed building would alter the character of the neighborhood.  The spirit of the ordinance was questioned.  Fire Department equipment is usually considered when Town’s add a height limits in their ordinances.  The proposed building will not stand out more than the others in that area.  The Hampton Inn is the only one taller and it is up against a hill. 

Atty. Hollis addressed the criteria for substantial justice.  The peak of the proposed building is only 5’ taller than what is permitted.  Hollis stated he did not feel this was going to make any difference.  There will be no occupancy in the additional feet.  It is to gain better visibility.  If the request is denied, what is the harm or benefit to the public?  Significant material brought onto the site would affect the wetlands and be a substantial expense. 

Atty. Hollis consulted Thomas Tremblay, President of Coldwell Bank Linwood Real Estate, regarding how the proposed building would affect surrounding property values. His opinion was that allowing a variance for the additional height will not have a negative impact on the values of surrounding properties. Thomas also stated that the proposed structure may serve to balance the aesthetics of the neighborhood.

Tab 5 of the booklet shows higher retaining walls at an elevation of 733’.

Tab 6 shows raising the building to the Meadow Street level of 738’.  This would mean more fill and higher retaining walls.

Tab 7 shows the building being raised to an elevation of 741’.  This would means enormous retaining walls and would be a potential threat to the neighborhood as well as drainage concerns.

Tab 8 is a photo taken from the southbound lane of Route 93.  The photo demonstrates that the existing building already blocks the view of the shopping plaza across the street.  Atty. Hollis stated that the variance will allow the tower on the top of the proposed building, but not the entire building, therefore it will not be blocking the view of the shopping center any more than the current building.

Tab 9 is an aerial photo showing the sight lines from the northbound lane of Route 93.  Atty. Hollis stated that there will still be a view of the shopping center.

Tab 10 is a photo from the northbound lane of Route 93 with a view of a 42’ high building that does not require a variance.

Tab 11 is a photo from the northbound lane of Route 93 with a view of a 47’ high building that does require a variance.

Tab 12 is a closer view of the proposed building at a permitted height.

Tab 13 is a closer view of the proposed building with the addition height.  Atty. Hollis stated there is not much of a difference.

Atty. Hollis addressed the hardship criteria.  This is a unique property as it is in a hole and there is nothing like it in the area.  There is poor visibility from either way on Meadow Street and it is surrounded by wetlands that restricts other development.  Having to raise the land will pose a hardship on his client and the Town.  Atty. Hollis also stated that there is no fair and substantial relationship between the general purpose of the Zoning Ordinance and this application.  What is the objective really being obtained? Atty. Hollis stated the property is low and believes this is a reasonable use.

Chair Daine asked about tab 13 and if that would be the actual location.  Atty. Hollis replied that the original building will be removed and that part of the parking area will be raised. Tab 4 shows the elevation.  The removal will give a different view of the shopping center. 

Jim asked if there were any floor plans of the first and second floor and if there was a reason for the tower portion.  Atty. Hollis replied that the height is for visibility.  The second floor is unused space. Max Puyanic, CEO of Convenient MD, stated that the second floor is used for storage and records.  There will be no occupancy.

Ralph asked Milton to confirm the need for a variance.  Milton stated the Zoning Ordinance indicates the average height when looking up from the ground.  There is no reference to elevation at the ground.  In this case, the building can be 42’ high based on the Zoning Ordinance definition.  Kevin Correia, architect, presented a sketch to illustrate what the Zoning Ordinance is referring to.  Atty. Hollis said the peak is 47’ high but the average is 42’.

Ralph asked if Convenient MD has any flat roof buildings.  Atty. Hollis replied that Dover has one.  Ralph stated that the proposed roof here could also be flat. 

Max discussed the broad scope of care that Convenient MD provides and how they have grown quickly for their service.  They need the demographics to open up in this area and rely on the facility being visible.  The 47’ high peak is their typical building.  Some older buildings are not that high and it is a visibility issue.  The facility will be open from 8:00 am to 8:00 pm and 7 days a week. In the beginning, there will be about 15 patients per day and could increase to 100 per day at year five or six.  At that point, about 30 parking spaces will be needed.  At first there will be about 25 staff members and that could grow up to 50 employees with 13 onsite at a time. Vice Chair LeSage commented on the driveway being on a curve that makes a left turn out on to Meadow Street difficult.  Vice Chair LeSage also asked if there would be ambulances.  Max replied that by law they cannot.

Ralph asked about the sidewalk concerns mentioned in an email from Police Chief Smith.  Atty. Hollis stated he was only prepared to address the height of the building.  Chair Daine stated that sidewalks are not required and they applicant would not be presenting tonight if it wasn’t for the extended height.  Ralph added that this is not a good proposal if the sidewalk is not there especially if the next property put one in.  Jim stated that the Town has agreed to maintain sidewalks that are put in by the developer.  The current sidewalk ends where the driveway starts.  Andrew Dorsett added that this is a height issue and any access permit comes from the state and will address the traffic flow.

Ralph confirmed that the applicant will not need to receive Planning Board approval.  The next step will be to apply for a building permit.

Ralph asked if this was non-profit.  Max replied that this is for profit.  Ralph added that Convenient MD needs visibility to make money.  Max added that the increased height is to attract people.  The other part is because people are under distress when trying to find treatment.  They need guidance to the facility.

Jim asked about the color of the roof.  Max replied that it would be colonial red.

There were no abutters present to speak in favor of the application.  Andrew stated that the Town is an abutter and he had a letter from Schuyler Sweet who is a former member of the ZBA.  Schuyler recalled a variance approval from 2002 for the Hampton Inn.  The decision was to grant the variance request, but restrict the height of the building to no more than 80’.  The decision based on that discussion was in reference to the original need for the 35’ height restriction, which was based on the then outdated safety concern caused by the limit of the historical fire apparatus reach.  Since that decision, there have been multiple locations granted variances including Littleton Regional Hospital’s 59’ tall building.  Schuyler ended the letter by stating this is no longer a valid concern. Vice Chair LeSage asked if the letter was from Schuyler as a Selectboard member.  Andrew replied that is was his recollection from 2002.  David added that the same is mentioned in the approval for Home Depot.  Atty. Ransmeier stated that it sounded like this was Schuyler’s person interpretation.

Atty. Bielagus, representing the REL Commons shopping center, submitted photos that show the view from Route 93.  Atty. Bielagus stated that the 35’ height restriction is to preserve the character of the Town.  The applicant is asking for a 20% increase.  Atty. Bielagus asked the Board what would happen if someone wants to build higher next door and then another.  The Town would lose its character and the Board would be setting themselves up for the future. Atty. Bielagus read section 1.01 of the Zoning Ordinance.  Land in the Town shall be used in a manner that is not disorderly, unsightly, noxious, offensive, or detrimental to the public or the owners or occupants of adjacent property, or prejudicial to the general welfare of the community. Atty. Bielagus stated that the owners across the street are considered part of the public and are trying to make their property attractive to tenants and their tenants also need visibility. The Convenient MD property already has visibility and wants to use the building as advertising. Atty. Bielagus added that there is no hardship because they can’t have a bigger sign on their building.  Property values will be decreased.  Tenants at the shopping center also want visibility.  Atty. Bielagus stated that the applicant can build a different building.  He also asked what the special conditions were for this property.  Other stores in the area at a low elevation did not need to exceed the 35’ and are doing fine.  Atty. Bielagus addressed the suggestion of a flat roof.  There is one being presented in Saco, Maine.  Atty. Bielagus recommended the Board deny the request and have the applicant keep with the permitted 35’.  There is no hardship.

David asked Atty. Bielagus if the view would still be blocked if the applicant filled the property up to grade and built without a variance.  Atty. Bielagus replied yes.  David added that the abutter would be in the same predicament.  Atty. Bielagus added that a simple redesign of the signage and the peak of the roof will still allow them visibility.  The lower site is not hurting them.

Joe McMahon asked if there are plans for expansion at this site.  Max replied that there will be 12 exam rooms and would never be enlarged.  He did not see this facility being outgrown, but if it happens they would look for an area to build another facility about 30 away.  The lack of sign ordinance was discussed and how businesses could build tall ones for advertising.

Atty. Hollis stated that there is a unique situation here and speculation is not good for what might or might not happen in Town because of this granting.  Each case is separate.  The fill issue is important and would be costly as well as needing to build retaining walls and a bigger building.  The request is just for an extra few feet in the tower.  Convenient MD owns the land and the shopping center is not entitled to the view.  That is the law.  The permitted height will also block TJ Maxx. 

Andrew offered a clarification that the letter from Schuyler was not as an abutter, but speaking personally from his time on the Board.

Stuart Scharff stated he is in support of the project if it is built to the ordinance.

The public input was closed.

Jim stated that the neighborhood would not be changed tremendously.  This will be an additional commercial building.  Vice Chair LeSage stated that the company has similar style buildings in all of their locations.  Ralph stated that they have the ability to modify to fit the desire of the area.  Vice Chair LeSage added that there are many different building styles in Town such as Main Street and box stores.

Chair Daine noted that the Hampton Inn, Home Depot, and Lowe’s all received a variance.  Terrain is an issue.  The 35’ height limit was for life safety and is no longer an issue.  Littleton does not need skyscrapers, but this is only 7’.  David stated that this will not materially alter the character.  Chair Daine added that this is not contrary to the public interest.  Vice Chair LeSage stated that the extra 7’ will block the TJ Maxx shopping plaza.  Chair Daine replied that it is subjective if it will be blocked.  Ralph stated the shopping plaza can be seen from south to north.  Their sign is currently not blocked, but it will be with the proposed building.  Vice Chair LeSage added that the shopping plaza could put up a sign on the interstate.  Ralph replied that Convenient MD could do the same. 

In regards to the spirit of the ordinance, Ralph said the 35’ was to keep everyone somewhat level.  Chair Daine stated it was a safety issue.  David added that past minutes reflect that.  This is the character of that area of Town.  George added that Lowe’s built their signature building.  Ralph stated that Lowe’s and Home Depot are not affecting anyone in their valley.  This will stick out and look out of character.

Ralph stated he does not feel that granting the variance would do substantial justice.  It causes harm to the view rights of the shopping center.  Chair Daine disagreed and stated that they do not have the right to something they do not own.  Ralph mentioned the proposed building in Saco, Maine and how they reduced the height.  

David asked if the extra 7’ would diminish values.  Ralph replied that the extra 7’ would block the shopping plaza as well as take away their ability to be visible and make money.  Hardships are not financial.  Chair Daine stated the topography plays a part in this.  Ralph added that there is already a building on the site and another can also be built there.  This lot is not an unbuildable lot.

Vice Chair LeSage made a motion to grant, without prejudice, the request of Alrig USA c/o Morgan A. Hollis, Esquire / Applicant – ZBA18-12 – Request for a Variance relating to Article V, Section 5.01 of the Littleton Zoning Ordinance to allow a building over 35’ in height at 551 Meadow Street, tax map 76-12, in the C-I zone. LeSage added the following facts:

  • The proposed will not affect the character of the neighborhood.  This is a commercial area.
  • The public welfare will not be affected.
  • The public will not be affected or hurt and this will be consistent with other variances granted in the area.
  • There was no evidence presented to confirm the proposed building would diminish property values.
  • The hardship is with the topography of the property and the wetlands will be affected if having to bring in fill.  The environment will also be affected with additional fill.

David seconded the motion to grant.

Ralph commented that this is contrary to the other businesses and there is a possibility of diminishing values to them.  This harms the private rights by taking away their advertising.  Real estate values might not be diminished, but businesses will.  Ralph also stated the he does not believe there is a hardship other than financial.  The applicant can reduce their building by 7’ as proven in the Saco case.

The applicant must comply with the following conditions:

  • The approval is for a 47’ high building with the finish floor elevation as presented at 730’
  • The applicant must comply with all Federal, State, and Local regulations.

The motion to grant passed 4-1.

Motion for rehearing of:

Edward & Jessica Taveras, Owner and Applicant – ZBA18-11 – Request for a Variance relating to Article IV, Section 4.02.01 of the Littleton Zoning Ordinance to allow parking  commercial vehicles  from a transportation business at 37 Pike Ave, tax map 79-199, in the R-I zone.

Jim recused himself.  Chair Daine designated George as a voter.  Ralph stated there are two reasons for a rehearing.  One is because the Board made an error and the second is to hear new evidence.  No new evidence will be presented and the Board did not make an error.  The revaluation card has nothing to do with the zone of the property.  Noting commercial on the card was a mistake at the Town level.  The applicant was informed that the lot was not commercial. Vice Chair LeSage agreed with Ralph. 

The Board clarified that they are referencing the motion to rehear dated November 20, 2018. 

David did not disagree with the card issue, but thought a rehearing would give the applicant the opportunity to explain that.  This does not guarantee the Board will vote differently.  It does no harm to go through this process.  Chair Daine was concerned with the statement in the letter about three members viewing the property.  Due diligence was done, but the applicant was not aware.  It was not mentioned during the meeting.  Joanna added that nobody asked to see the entire case file to check for evidence of site visits. 

David made a motion to rehear ZB18-11.  Vice Chair LeSage seconded the motion.  The motion passed 4-1.

Zoning Officer Milton Bratz informed the Board that the Taveras’ still have an outstanding violation at 103 Farr Hill Road and he is ready to give a second notice.  The property is also in the Residential zone. This is just an FYI for the Board.

Review minutes

December 11, 2018 – Vice Chair LeSage made a motion to approve the minutes as written.  David seconded the motion. The motion passed 4-0.

January 8, 2019 – Jim made a motion to approve the minutes as written.  David seconded the motion.  The motion passed 5-0.

At 9:00, David made a motion to adjourn.  Vice Chair LeSage seconded the motion.  The motion passed by all.

Submitted by,

Joanna Ray