Planning & Zoning Board Notices & Minutes

Feb 26, 2019

Draft Zoning Board Minutes - February 26, 2019


LITTLETON ZONING BOARD OF ADJUSTMENT
LITTLETON COMMUNITY CENTER, HEALD ROOM
120 MAIN STREET
TUESDAY, FEBRUARY 26, 2019
6:00 PM
DRAFT
 

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: Zoning Officer Milton Bratz, Joseph McMahon, Gerald Winn, Edward Taveras, Barbara Whiting, and Attorney Amy Manzelli

 

Chair Daine called the meeting to order at 6:00.  Jim recused himself from the hearing.  George was designated as a voter for the hearing.  There will be five voting members. 

 

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. The rehearing was noticed properly and the hearing fees were paid.  The application was accepted as complete.

 

Atty. Manzelli presented the case.  The Taveras’ own and operate a medical transportation company.  They also plan to store and maintain their vehicles at this site.  This rehearing is to reconsider the original variance as well as the supplemental information in her letter to the Board dated November 20, 2018.  Atty. Manzelli would like to give the Board a fuller picture and explanation.  The Taveras’ have lived here since 2000.  Since then, they noticed that people were having trouble getting to appointments due to the lack of transportation.  They went from working as a home care provider to home care with transportation.  The demand for the medical transportation increased for Medicaid patients.  This is transportation to hospitals and doctor offices, but not an ambulance service.   The service is provided by appointment and patients would not be arriving at this location.   This business needs to be centrally located in Littleton in order to service all areas.  This cuts down on mileage and gas.  These savings is passed on by providing low rates.  The Taveras’ might need to relocate out of Littleton if this lot is not approved.

 

Atty. Manzelli discussed the legal issues of the 103 Farr Hill Road which is owned by Taveras.  The Taveras’ have been operating their business at that location for four years and continue to.  They do not have experience in real estate development and were informed that it was a zoning violation.  After notification, they began searching for an alternate location.  They have no long term plan to continue using this location.  Atty. Manzelli spoke with Milton and Joanna regarding this location and setting a deadline for leaving the Farr Hill location.  The Taveras’ thought 37 Pike Ave would be a good location because of the large garage and field.  The garage is far larger than the regular residential lot would have.  Atty. Manzelli stated her clients thought they were doing the right thing.  They spoke with Town officials and were told the lot was not commercial and that a variance would be needed.  This happened prior to the purchase.  The seller told the Taveras’ that the lot was being used commercially and leased commercially for race car maintenance.  The seller also told them that the Variance would not be a problem.  The purchase price of $135,000 was based on the commercial use.

 

Atty. Manzelli presented a copy of the tax card for 37 Pike Ave.  It was printed on November 6, 2018.  There was a significant change in the valuation from $63,000 to $171,300.  This increase was due to the recognition that it was being used commercially.  The Town assessed it commercially.  It was in reliance on that commercial assessment that the Taveras’ paid $135,000 for the property. They did know a variance was needed, but they were not aware of what was entailed.  They thought it was a form, but they understand now.  Atty. Manzelli added that reliance on the tax card makes sense.  If the value was changed to commercial then it is sensible to expect it could continue to operate commercially.   The tax card states the word commercial in four places and it is valued twice as much as when it was assessed residentially.  These changes on the tax card happened before the Taveras’ purchased the lot.

 

Atty. Manzelli moved on to the variance criteria.  There is an existing commercial garage.  There will be no alteration of the essential character of the neighborhood or threaten public health, safety or welfare.  The use is going from commercial to another commercial.  The area is mostly residential, but it is approximately 90’ from the Commercial Zone. It is common in Littleton to have commercial uses in residential zones.  Atty. Manzelli submitted tax cards from two other commercial garages that are located in residential zones.  One was 236 Railroad Street and the second was 49 Redington Street.  These uses are not interrupting the zoning plan.  Similar to 37 Pike Ave, these properties are valued significantly higher than if they were residential like the neighbors.  Atty. Manzelli stated that the loss to the applicant is great if this is denied.  The purchase price was over $100,000.  It was the price for a commercial lot. 

 

Ralph stated that a lot of residential lots had an assessment increase.  The increase had nothing to do with it going from residential to commercial.  Atty. Manzelli replied that the records specifically say the value was because it is used commercially. Joanna stated that the assessor submitted an explanation that the property appeared to be used commercially. They did not verify if it was a permitted use.  Ralph stated that this road is dangerous and doesn’t understand why they chose this property.  Atty. Manzelli replied that she has not seen any evidence that this road is dangerous.  Ralph added that kids need to use the road because there is no sidewalk.  He asked Atty. Manzelli if she thought this was a safe area.  Atty. Manzelli replied that this was an ideal spot because of the large garage. This is a unique feature. The purchase was on reliance of the commercial value.  She also stated the ZBA was correct in October when they stated that placing a residence on the property is possible.  Atty. Manzelli added that it would not be financially reasonable for her clients to do that.  The benefit to the public is very low if this variance is not granted. If not granted, this property will still have a large garage that stores and maintains vehicles.

 

Atty. Manzelli stated that property values will not be diminished and that they might be slightly elevated.  If this is denied and then revalued as residential, that would cause a hit to property values in the area. There is no actual change in the use so it can’t possibly change or decrease the values.

 

Atty. Manzelli addressed the hardship criteria. The property assessment was changed by the Town to commercial and assessed as such. The oversized garage is a unique factor that distinguishes it from other properties in the area. It makes the lot unable to be used economically in conformance with the Zoning Ordinance. Refusing the low impact commercial use, similar to the prior use, would cause the unnecessary hardship.

 

David asked if there were utilities at the property.  Atty. Manzelli replied that there is electricity but no water. David added that the card says there are no utilities.  Atty. Manzelli replied that maybe there is more than one error.  David stated that the voters say what the zoning is and not the Town Office.  Atty. Manzelli stated she understood that what the card says does not change the zone and she is not asking for that to be changed.  David added that the hardship described is that the card was wrong and they based their decision on it.  Atty. Manzelli replied that they relied on it.  The other thing is the unusual garage on a residential property.  David stated that the last meeting discussed how the garge was unique but the last owner had a motorhome in it.  Atty. Manzelli clarified that unnecessary hardship criteria goes to the attributes of the property and not how it was used. David stated the prior use of race car fixing is a little different than the proposed.   

 

Atty. Manzelli stated that there would be 5 to 7 drivers for a few minutes on the property to pick up their commercial vehicle.  It is a quick exchange.  Chair Daine stated that the last meeting noted 14 vehicles and drivers that would be coming all day.  Edward agreed with Daine, but 7 of the vehicles are in the Country Village Parking Lot in Lancaster.  They keep them there to use in that area.  Atty. Manzelli stated that the request is for up to 13 on this lot. 

 

Chair Daine asked Joanna if the Taveras’ were informed about the variance prior to purchasing the lot.  Joanna replied yes, but she did not go into detail about the process. Atty. Manzelli added that her clients were not sophisticated with land use laws.  If the previous owners were using the property without a variance, the Taveras’ didn’t see any issue. George replied that ignorance of the issue does not change what the Board needs to do.  Atty. Manzelli did not disagree and added that her client relied on information on the tax card.

 

Ralph asked Joanna to confirm that she had informed the Taveras’ that a variance was needed and that this was not a commercial property prior to the sale.  This was confirmed.  Atty. Manzelli clarified this is a commercial property in terms of valuation, but it is not a commercial property in terms of zoning.  Ralph added that they thought it was a commercial property based on commercial being on the tax card. Atty. Manzelli replied that properties can be commercial in more than one way and that her client was aware it was zoned residential but used commercially.

 

Ralph asked if the applicant used a realtor when purchasing this property.  Edward replied no.  A lawyer was used for the closing.

 

Ralph stated that this property is on a dead end street.  There are only residences.  This is a residential garage built to store a boat and motorhome.  It was not built for commercial.  Ralph added that the Attorney’s letter states the Town tax card is published for the owners and members of the public to rely on it as the official determination of the value of the property.  Is this the official document that determines the value? Joanna could not confirm that.  

 

Ralph reviewed the Zoning Ordinance definition of parking lot.  This storage of vehicles does not qualify as a parking lot.  Atty. Manzelli confirmed that is why her applicant applied for a variance.

 

Milton added that the tax card gives the assessed value and not the market value. The assessed value is what the Town has rendered.  This could be interpreted as official by a resident.

 

Ralph referenced RSA 674:33, I (b). The variance cannot result in additional threat to public safety. Ralph added that this is a narrow road with high snowbanks.  Kids need to walk in the road and that is dangerous when there are additional vehicles driving in and out.  Atty. Manzelli replied that she has no information that this would be a public safety hazard.  High snowbanks are characteristic of this area.  There will not be a large increase in traffic.  There will be around 5 to 7 vehicles a day.  The application states 13 vehicles, but the information being presented tonight is for less vehicles. Atty. Manzelli stated if there was an approval for 5 to 7 vehicles and someone notice there was 13, then her client would be in violation of the approval.  Not all 13 vehicles are used every day.

 

Joseph McMahon is an abutter that is against this variance request.  Joseph voiced his concerns at the original hearing and those concerns were the same at this rehearing.  Joseph added that this property is being used every day.  He submitted a printout from the Town’s online maps and a property card from the online maps.  There is a disclaimer that says the data provided is for informational purposes only. Joseph confirmed that there are 4 houses on that street.

 

Chair Daine stated that this rehearing is to hear new information or to correct mistakes.   Joseph asked if the application included working on the vehicles.  Chair Daine stated there is an application, it was appealed, and then additional information was included in the appeal letter.

 

Joseph stated that his concerns were the same to include back up alarms, noise, increased traffic, and the addition of feeling his property value would be diminished Pike Ave ends at the corner of his property. Nothing has been formalized, but they are working on vehicles already.  

 

Milton informed the Board that he received a detailed letter from Joseph.  The letter states several concerns.  Milton is not trying to sway the Board’s vote, he decided to read some of the facts as Joseph wrote them. The first snow removal consisted of pushing it back in the road for the town to push it further down because there is nowhere to go with it at the lower driveway level.  This hindered Joseph’s ability to get in and out of his driveway.  They are continually parking in the road, which isn’t owned by the Town, to swap vehicles in and out.  They have pulled into Joseph’s driveway to make multiple runs to back a trailer in because the driveway wasn’t plowed.  Milton added that if the Board approves the variance, conditions should be added to avoid additional violations.  Atty. Manzelli restated the potential conditions to include the snow will not be moved into the road, there will be no parking on Pike Ave for any purpose, and there no longer using other properties.  These are entirely reasonable requests. 

 

Ralph asked if there were plans for the business to grow.  Atty. Manzelli replied that it would not be allowed to grow at this particular site.  Only the amount allowed per the variance would be allowed.  Edward added that they would purchase a different lot if the business were to grow. At this time, there are no plans to expand.

 

Joseph voiced concerns about future development and wetland impact.  Atty. Manzelli stated that there are no plans for development, but her clients will comply with the laws when necessary.  Chair Daine added that the Board cannot predict a future violation.  If a violation is reported, the Zoning Officer will respond.

 

Gerald spoke about the pre-existing non-conforming use.  Gerald’s advice was to examine how this property came to be this way.  It is common in Littleton.  Ralph asked what the non-conforming part was.  Gerald said this has grown into a commercial building in a residential zone.  There is a history of use with the building that probably should never have been there.  Gerald added that the structure is non-conforming. Joanna stated that a garage is considered an accessory structure and it is common to not issue a permit to a garage without a house on a lot.  Many years ago, there was a building permit issued for a house but no follow through at the Town Office to make sure the house was built.

 

The public input was closed.

 

Vice Chair LeSage made a motion to deny 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 based on the following:

  • The variance will be contrary to the public interest because there will be a nuisance to the residents and public safety.  There will a nuisance because of the number of vehicles. A serious safety hazard.
  • The variance is not consistent with the spirit of the ordinance because it is not consistent with the R-I ordinance.  It is a small dead end neighborhood and it would take away from what the R-I ordinance states. The ordinance states:  The purpose of this district is to enable residential development of a low to medium density urban character having public water and sewer facilities available to it.  The principal use of land is for single, two-family and residential conversions, and related recreational, religious and educational facilities normally required to provide a balanced and attractive residential area which provides for adequate light, air and open space for dwellings and related facilities.
  • Substantial justice is not done because this is not similar to what was allegedly happening at the property.  Not consistent with the allowed uses.
  • The property sales value of surrounding properties will be diminished because we believe the change in character will negatively affect the property values.
  • Literal enforcement of the ordinance would not result in unnecessary hardship because the land has no hardship.  The proposed use is not reasonable because it will increase traffic significantly on a dead end road which will cause potential safety issues. There is no relationship to hardship on this property.

 

George seconded the motion.  Ralph voiced concerns about the applicant working inside the garage even though the Board is denying the request to park vehicles on the lot.  Joanna informed Ralph that the Zoning Officer will need to make a decision on the use going on inside the garage.

 

The motion to deny passed unanimously.

 

Other business:

Request for rehearing of ZBA18-12 Alrig USA

 

Chair Daine stated the Board understood what was being requested at the original hearing.  The attorneys both presented well.  The request for rehearing did not contain any new evidence or identify that the Board made an error. 

 

David made a motion to deny the request for rehearing.  Vice Chair LeSage seconded the motion.  The motion passed by all. 

 

 

Review minutes:

January 22, 2019

David made a motion to approve the minutes as written.  Vice Chair LeSage seconded the motion.  The motion passed by all. 

 

At 8:00, Ralph made a motion to adjourn.  Vice Chair LeSage seconded the motion.  The motion passed by all.

 

Submitted by,

Joanna Ray