Planning & Zoning Board Notices & Minutes

Jun 17, 2019

Approved Zoning Board Minutes - June 17, 2019


MONDAY, JUNE 17, 2019

6:00 PM



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


EXCUSED:  Guy Harriman (alternate) and Eddy Moore (alternate), and George Morgan (alternate)


OTHERS:  Town Manager Andrew Dorsett, Zoning Officer Milton Bratz, Atty. Morgan Hollis, Rian Kearney, David Sanderson, Kevin Correia, Max Puyanic, Atty. Thomas Quarles, Neil Wittet, and Russ Abell


Chair Daine called the meeting to order.  Five voting members were present. 


REL Commons LLC – Appeal of Building Permit #19-0423-01 issued to Coastal Construction Corp. for the construction of Convenient MD located at 551 Meadow Street, tax map 76-12, in the C-I zone.


Chair Daine stated that the hearing was properly noticed.  No conflicts were noted.


Atty. Tom Quarles, present with Neil Wittet and Russ Abell (consulting engineer), gave a brief summary of the events up to date.  Convenient MD (CMD) applied for a variance regarding the height of the building and the Board granted it.  The variance was appealed and was followed by the withdrawal of the variance by CMD.  A building permit application was filed alleging it was conforming to the Zoning Ordinance. The plans submitted with the building permit application had problems.  Problems were pointed out and CMD corrected them.  The plans referenced the variance approval with the incorrect height of the building. 


On June 4, Atty. Quarles submitted a detailed appeal. All board members have a copy of the appeal and had reviewed it.  Since this is a public meeting, Jim suggested that Atty. Quarles discuss the details.  Atty. Quarles stated that CMD is at the building permit stage and there are two fatal errors. First, the application states it must be submitted with a full set of construction plans.  That did not happen.  Instead, after review from Sanborn Head Associates, CMD was informed that the remaining problem was still there from March 22 which were the references to the variance and the over height. Since then, it was indicated that the height has been lowered. Also pointed out was the shifting elevations.  The variance approval was for 730’ which is about 4’-5’ higher than the base elevation of the existing building.  The building permit request stated 731’.  In the construction plans, the base elevation is noted as 733’.  Atty. Quarles stated this is not just a technical issue. He added that 733’ elevation would require a massive amount of fill.  His interpretation is that it is outside of what is permitted by the Zoning Ordinance.  That amount of fill would only be allowed with a variance.


Atty. Quarles stated the issue at this point is that the submitted building permit application is insufficient due to the lack of construction plans. He referenced page 4 of the submitted appeal.  There is a list of items that the building permit application must contain.  Without this information, an application will not be accepted.  Atty. Quarles added that this is not just required in Littleton, but is in RSA 676:11 which states plans must be submitted for building inspector review.  Atty. Quarles told the board that CMD cannot solve this simply by submitting construction plans.  He added that CMD cannot have unlimited bites of the apple. CMD has very qualified counsel, engineers, and a construction company.  They needed to get it right the first time. Due to the lack of submitted construction plans, the building permit has to be rejected. The Littleton building and zoning officer needs to see all plans to determine compliance.  He cannot make building code compliance decisions if there are no construction plans.


Atty. Quarles stated the second ground for denial of the building permit is due to the changes in base elevation.  The report from Sanborn Head indicated that approximately 3500 cubic yards of fill is required to get the base elevation to 733’.  This is about 350 dump trucks.  This is filling that entails more activity than is normally associated with site preparation. His interpretation is that this amount of fill is not ordinary and would require a variance.


Atty. Quarles stated his beliefs as to why CMD wants to increase the height of their building including the ability to block his client’s visibility. The proposed first floor is a whole story higher than the current first floor of the Chinese restaurant.  Chair Daine stated she wants to focus on the reasons for this appeal.


Vice Chair LeSage stated that, back in January, they said the lot will be filled in. Ralph added that it would be filled to 730’. Atty. Quarles added that the height variance was issued with the base elevation being 730’. The effect of the appeal of the building permit is to stop all construction until the appeal is decided.  There has clearly been some construction going on, but it is unclear if there has been some since the appeal was filed.  As stated in the appeal, the request is a denial of the building permit application.  If they want to proceed, they need to file a whole new application that is not repetitive of this one.


David addressed not getting another bite of the apple and disagreed.  Is that law or opinion?  Atty. Quarles stated that is the law. Someone cannot keep trying over and over until getting it right.  It is the principal of zoning law.  They need a fundamentally different request.  You cannot come back after rejection with fixed errors.  Atty. Quarles stated there is time to talk to the building and zoning officer about the plans and get a preliminary say-so on it before filing the application.  David asked if Atty. Quarles felt the applicant should have done more work prior to filing.  Atty. Quarles stated, regarding the lack of complete plans, he sees no excuse. David asked if there is there an RSA stating they cannot get another shot?  Atty. Quarles stated there is plenty of case law. 


David noted that the appeal cited the Littleton Zoning Ordinance section that talks about limited excavation and filling which is more activity more than what is normally associated with the site preparation.  David also noted that it also says “and for periods over six months”.  A variance would be needed if there was more activity that lasts longer than six months.  David added that he did not feel the site preparation would last longer than six months.  CMD publicly said in the newspaper that they would be open by December. Atty. Quarles responded by restating the number of dump trucks that will be needed to bring in fill.


David referenced RSA 676:11 regarding the submission of plans, but there is no specific plan stated.  Atty. Quarles asked if it is important for the Town’s building and zoning officer to review all of the plans for code compliance and not just zoning compliance.  David stated there is more than one bite at the apple.  Atty. Quarles asked why CMD did not have construction plans.  There is no review from the Town without them. 


David asked if it is the abutters right to see the plans or everyone’s right because they are public.  Atty. Quarles stated that abutters have special rights under the planning and zoning laws to be a party and file appeals.  He also stated that he was surprised that David did not feel it was important for the building officer look at the construction plans. They need to comply with the building permit application. 


Ralph stated he believes Atty. Quarles interpretation of the ordinance was wrong.  The purpose of C-I is for neighborhood commercial use.  Various sections of the ordinance were highlighted in the appeal including the filling and dumping.  If CMD was bringing in fill to use in two years, then that would be considered temporary.  It has nothing to do with a special exception.   Atty. Quarles stated this provision was the first one they noticed after reviewing the first plan.   They are not relying on that part of the ordinance anymore. In the appeal, it is not mentioned.  Ralph disagreed stating it was in the appeal.  Atty. Quarles stated the section they are appealing is the filling and dumping more than what is normally associated with site preparation.  That would need a variance.  Upon closer examination, Atty. Quarles said they agreed that this does not fall under the temporary filling.  Ralph said the packet included the temporary filling.  Atty. Quarles referenced Exhibit C in the appeal, page 39 and 40. 


Ralph stated the board knew they were going to build at 730’.  He has not seen any construction documentation regarding what they want to do.  They cannot go above 730’.


David stated he was hung up on the “entails more activity than is normally associated with site preparation”.   That is only part of the sentence because of the “limited dumping and filling for periods over six months and…”  It needs to have both components.  Atty. Quarles disagreed, but stated he knows that’s what it says.


Milton explained how he had written a decision on why he felt this project was not a case of temporary dumping in filling.  It appears there is agreement that a special exception is not required.  Milton also stated that he is not a building inspector and that position has never been part of his duties.  He suggested the form may have to change if the statute allows it.  The role of the zoning officer includes looking at setbacks and the types of business.  Since the Town does not have a building inspector, the Fire Chief is contacted frequently to look at plans for life safety issues and he has the construction plans.  Chair Daine added that we do not have site plan review and we request a building permit application.   Regarding the fill over a period of six months, it cannot be assumed they will go over six months.  Chair Daine clarified that the Town of Littleton has a zoning officer to issue permits and Milton saw nothing wrong with this application.  Milton replied that this is how the job description reads.  Vice Chair LeSage asked Milton if he felt he did his job to the best of his ability with this application.  Milton replied that he responded to the height variance and then the special exception that was mentioned in the appeal. 


Atty. Hollis stated he objects to the fact that the board should be hearing this appeal.  This is not an administrative appeal as intended under the statute. This is an appeal of a building permit that was issued.  He also noted that the town administrative official has defended what he can. 


Atty. Hollis noted a slightly different fact pattern.  First, the record is clear that there was an appeal and his client did not file an appearance in that case.  His client determined, immediately after the variance was granted, if the building was built at the level approved by the variance there would be a driveway pitch that exceeds 8%.   NHDOT will not allow a driveway that exceeds 8%.  There is a need to raise the elevation in order to meet that criteria.  The redesign was done immediately after the variance approval.  The redesign was what REL asked for and that was to shrink the building to comply with the ordinance.  The variance approval was still noted on the plan due to a mistake but also because it had not officially been dropped because of the pending appeal.  The notation of the variance was dropped from the plan after the building permit was issued.  The variance was dropped at his clients consent.


Atty. Hollis took issue with the comment from Atty. Quarles about not getting a second bite at the apple. This is in reference to the case Fischer v. Dover which states when you go to the Zoning Board, you do not get a second bite unless there is a material change in circumstances.  What is materially different is up to the board to decide. This is a building permit application.  Applications are reviewed by departments and discussions happen prior to the approval.  You get to make changes until it is right.


Atty. Hollis reiterated the need to redesign the plan so that the driveway met the required regulation.  Jake Modestow, Stonefield Engineering & Design, sent a letter to the board.  He was unable to attend this meeting. 


Atty. Hollis stated the redesign has nothing to do with the variance.  This redesign does meet the code and the building is shorter than what the variance granted. The elevation of 730’ will not allow them to meet the grade of 8% for the driveway. It has to be at 733’.  The submitted application stated an elevation of 731’.  Rian Kearney submitted that application and the note of 731’ was an error. The error was corrected.  The front floor of the existing building is at an elevation of 736.5’. There will be cutting in the front and filling in the back. At the time of the application, March 22, an email with the same date was sent from Joanna Ray to Chief Mercieri, Chief Smith, Doug Damko, Tom Considine, Andrew Dorsett, and Rian Kearney.  The email was notifying them of the submitted application and plan with the lower model of the building.  At that time, all plans were submitted. Joanna informed Chief Mercieri that the full set of plans was submitted and ready for him to pick up at his convenience.  As stated earlier, Milton does not review the plans.  They are sent to the appropriate officials.  The argument regarding if the plans were submitted is debunked. 


Ralph asked if Milton received those plans.  Milton replied that he did not see them because they went to Chief Mercieri. Joanna confirmed the plans were put in Chief Mercieri’s mailbox.  We do not keep them in the office because we do not have anyone to review them there.


Chair Daine asked for confirmation that Chief Mercieri had the plans.  Joanna replied yes.  Atty. Hollis stated the plans were site plans, that reflect the filling and moving of soil, plus the retaining wall.  There is no wall buried in 8’ of fill.   Once the permit was issued, it was agreed on to withdraw the variance.  The architect had redesigned as recommended by REL Commons.  The building had to come up.


The letter from Jake Modesto was added to the record.  Joanna just received the letter today.  Ralph added that it was a lot of information to digest.  Atty. Hollis referenced the line in the letter that starts with the front door entrance elevation along Meadow Street (First Floor) of 736.50’ and a lower level entrance at the rear of the building at 725.50’.  The entire site is not being raised.  There are low points.  Atty. Hollis stated it is in everyone’s advantage to keep the building as low as it can so that there isn’t much fill brought in. During the design phase, the slope of the driveway was the limiting factor.  Jake’s letter explains more details regarding how much fill is required.  This is standard building practice in Littleton as well as other towns.  The site next door also brought in fill.  This site will have fill moved onsite as well as some brought in.


Rian Kearney submitted copies of the plans along with the email that shows digital copies were sent on March 22.  There was a revision from DOT comments on April 22.  The existing grades at the corners are 733’, 731’, 726’ and 728’.  This averages out to be 729’.  Under the slab it has to be brought up 12-18” of subgrade as well as the slab.  The average fill is only 2’.  That is 385 yards and 15 trailer truck loads.  The majority of the grades are on average 3’. The parking lot from existing to new is 1’ and it must be brought up to subgrade.  This is typical construction and the time frame is 6 months.  The fill period is about 2 months.  Max clarified that Rian personally delivered the application with the plans and then followed up with the email.  The plans never changed once the engineers said it couldn’t be built as previously thought at the 730’.  Only one set of plans have been submitted with the application.


Ralph noted the ZBA minutes reflected 730’ during the variance hearing.  Atty. Hollis stated that it was the day after the approval that a problem was found during the detailed engineering.


Chair Daine clarified the issues presented.  One is to see if the permit was issued when it should not have been.  This is based on the fact that plans needed to be submitted.  Chair Daine asked if plans were submitted.  Atty. Hollis confirmed that they were.  Milton confirmed that the Fire Chief said plans were submitted.  Chair Daine asked if the plans had changed.  Rian replied that the only changes were in the civil drawings.  The Town has the correct plans.  As for the concern of the fill, Atty. Hollis stated he does not feel they are in violation.  He also stated that the ordinance refers to a 6 month window when there was testimony that the fill will only take about two months. The issue about temporary fill is of the table as Atty. Quarles had stated this is not the concern.  Atty. Hollis submitted information with numerous definitions including normally, site preparation, and the Zoning Ordinance definition of grade. The proposed is standard and not unusual. 


David said he heard 731’.  But it was changed due to the driveway?  Rian replied that the elevation wasn’t required on the application and it was a mistake.  It was eliminated because it is only required if the property is in the flood zone.  Atty. Hollis stated that the 733’ was noted in the report from Sanborn Head as being in the application upon which the application was based.  The plans have always shown 733’ except when the variance was needed. The roof height will be lower than what was approved with the variance.  


Ralph recognized that the first application said 731’ and then asked if the approved application said 733’.  Rian replied that it does not say 733’ because it is not required.


Kevin Correia, architect with CMD, stated the plans that were submitted from an architectural standpoint were always based on the conforming building height design. No plans were drawn for the height granted in the variance. The plans submitted with all details all reflected the average building height of 35’.  Kevin showed the board some comparison pics of current building to the permit approved and what was previously approved with the variance. The building is lower now.


Max stated he wanted to build with the variance because it would have been much less expensive. Once the variance was approved, it was determined that it could not happen. 


Atty. Quarles stated there have been more than one set of plans submitted by CMD.  One set on March 22 and Joanna sent copies via email.  Exhibit E in the appeal is an email from Joanna to Atty. Quarles stating the conforming building and revised plan will be submitted.  Attached to the email was a letter from CMD that basically said the same thing.  The letter does not reference new plans.  Joanna sent the second set of plans, Exhibit F, that reference two different sets of CMD plans.  The drawings reviewed were dated 4-19-2019 and then reference to 2-22-2019.  The difference is the reference to the variance. 


Russ Abell spoke about the estimate of 8’ of fill.  He disagreed with a previous statement about the average of 2’ of fill.  Although he did not calculate the amounts, he agreed it sounded right. Russ explained how he calculated the fill based on the existing grade and the proposed grade after they are done.  The computer program did the calculating. This is a rough estimate and doesn’t take into account compaction of soil.  Russ also thought much of the soil would be from off-site.  The current grade is no different than the proposed. 


Atty. Hollis responded by saying the minor change in the April plan had to do with the variance reference and not the design of the plans.  He also added that the board needs to decide if the amount of fill, either Rian’s estimate or Russ’s, is more than what is considered normal. The testimony from someone who does this work all the time says it is normal.  The site next door brought in much more fill.


Kevin agreed that the change was to remove the variance reference.  They were resubmitted for this reason.


Atty. Quarles stated that the submitted plans were site plans only and not construction.  Rian referenced an email sent to the Town with links to the full set of plans.  Atty. Quarles stated the only plans they received from Joanna, and assumed it was all that CMD provided, were the site plans. For the record, two sets of plans were sent from Joanna and no construction details were included.


Jim asked CMD if there were construction plans when the work went out for bid.  Rian replied yes. The link on the email and it shows the plans of the building.


Joanna informed the board that she forgot about the email with the links.  If she had recalled the email, she would have sent it to Atty. Quarles when he requested all information. There seemed to be too many emails.  


The public input was closed.  Chair Daine stated the Board needs to discuss two items.  The first is whether or not the building permit was issued improperly.  There is a claim that the application was submitted substantially incomplete. The second item is whether or not the amount of fill is normal site preparation. 


Ralph did a review of what happened with the variance.  Chair Daine said it is not part of the discussion. Ralph wanted to know what the ZBA’s role is for this application.  Chair Daine replied that the Zoning Officer decided neither a special exception nor variance was required.  The abutter says otherwise so it is up to the board to make a final determination.


Ralph stated CMD does not need approval for temporary fill and referenced section 4.02.05 that says they can do this work without a special exception but requires a variance.  David said it does not need either. Ralph then agreed with David.  David talked about this is not going longer than 6 months.  In order to fit into this category, the fill needs to be excess and longer than 6 months.  There are two parts to that. Chair Daine agreed that a variance is not required. 


The Board agreed the building permit was not issued in violation of the Zoning Ordinance and that neither a variance nor a special exception is required regarding the amount of fill being brought to the property.  It is the normal operating process and the intent is for less than 6 months.


Chair Daine noted the next item is the claim that the building permit application was substantially incomplete.  There was a missed email from Joanna, but the Town has the appropriate plans.  There is an email about this.  The Town does not have a building inspector or site plan review.  The application goes to Milton for review if a variance or special exception is required and the plans go to the department heads. 


David noted that three points were brought up by Atty. Quarles as to why the application was incomplete.  Point A is a floor plan of the existing building showing each dwelling unit.  David stated there is no longer an existing building.  Point B is the floor plan of the proposed construction showing each dwelling unit. These are in the plans that were submitted. This is located on sheet A-1.01. Also located was the lighting plan and ceiling plan.  Point C is construction plans with location and size of windows and doors with dimensions. That is also in the plans.  David stated that in light of email confirmation, the building permit application was complete and submitted to the Fire Chief on March 22nd


Chair Daine stated that the email communication, with the provided links, that show the plans to be complete. The bullet complaints in the appeal are referenced specifically in the submitted plan which were given to the proper authorities.  David stated it should be noted that the items claimed to be missing are in the plans that were submitted at the time of the application.  Ralph agreed that the application was complete.  Jim agreed and that the required information was provided digitally.  Vice Chair LeSage agreed and had no comments.  Chair Daine noted that all board members agree that the submitted application, with plans, was not substantially incomplete.


Ralph voiced his personal opinions about the CMD project and them working with REL and the Town.     


David made a motion to deny the appeal of building permit #19-0423-01issued to Coastal Construction Corp. for the construction of Convenient MD located at 551 Meadow Street, tax map 76-12, in the C-I zone and affirm the issuance of said building permit by the Littleton Zoning Officer.  The ZBA found that the requirements for the building permit were met and the plans that were completely submitted to the Town of Littleton and disbursed to Fire Chief Mercieri when the building permit application was submitted. The ZBA addressed REL’s assertions that the application was missing a floor plan of the existing building.  The ZBA found that this was irrelevant because this is not an addition to an existing building. The assertion that the application was missing the floorplan of the proposed construction, the ZBA found the plans submitted provided the floorplan. The ZBA addressed REL’s assertion that the construction plans were incomplete such as lacking windows and doors etc., the ZBA found that the plan were complete.  Furthermore, the ZBA also took into account the argument of the necessary special exception of fill and excavation and the ZBA felt that this did not meet the requirements for a variance.

Vice Chair LeSage seconded the motion.  The motion passed by all.  


The May 28, 2019 minutes will be reviewed at the next meeting. 


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


Submitted by,

Joanna Ray