Zoning Board of Adjustment
Town of Holderness
PO Box 203
Holderness, NH 03245
Minutes
February 9, 2010
Members Present: Ivan Bass, Wendell Broom, Erik Simensen, and Susan Webster
Members not Present: Gyda DiCosola, Tim Lyons, and Bob Rothschild
Staff Present: David Lorch – Town Planner
Others Present: Walter Mitchell – Town Counsel, Heidi & Paul Luscher, Catherine Broderick – Wescott, Dyer, Fitzgerald & Nichols, Jeff Cripps, Mark Marden
1. CALL TO ORDER: Ms. Webster called the meeting to order at 7:25 P.M. The Roll was called. Mr. Simensen was raised to voting status. Mr. Mitchell noted that the application being presented at this meeting was for a variance for the entire use of the building including buildings that may be in violation. Ms. Broderick concurred noting that a boundary line adjustment approved by the Planning Board on 12/16/09 is awaiting an exchange and finalization of deeds and that the applicants will be seeking all building permits following site plan review. Mr. Mitchell indicated that the Zoning Board could include a condition that all violations be solved, if they were inclined to vote approval of the application.
2. APPROVAL OF MINUTES: Mr. Broom moved, seconded by Mr. Bass, to approve the minutes of 01/12/10 as presented. Motion passed.
3. OLD BUSINESS: none
4. NEW BUSINESS:
Case #316-02-09: Paul & Heidi Luscher
Request for Variance for property located at 7 Esco Lane in the General Residential Zone, Map 252, Lot 6. Applicant requests mixed use residential and small scale engineering (design), specialty machine repair, refurbishment and sales, and import / export of parts for the wholesale small precision parts market.
Ms. Broderick noted corrections to the minutes: the machines are belt driven not fuel-injected and the Luschers have three daughters, not two. She requested that all previous evidence, photographs, and testimony be accepted for this application; the Board agreed.
Ms. Webster explained that a four member board was present and the applicant could continue their appeal until a five member board was present. The applicants agreed to proceed with a four member board.
The public hearing was opened at 7:27 P.M. Ms. Broderick and Mr. & Mrs. Luscher provided the following information:
- Ms. Broderick provided a list of possible conditions that could be added to an approval for the protection of the town and the applicants.
- The property was purchased in 2004 with the knowledge that it was used as a commercial property. Although not an excuse for a thorough review, Mrs. Luscher was told by town hall personnel that there were no further permits necessary for their proposed business.
- The business is a small scale operation for a specialty machine repair as noted in the variance request.
- A copy of the Ameri-Swiss web site was provided.
- It is difficult to provide percentage numbers for sales versus engineering as the use is inter-mingled with consultation and training for sales. The manufacturing of parts is a very small percentage of the business.
At this point, Mr. Lorch suggested acceptance of the application as substantially complete. Ms. Webster moved, seconded by Mr. Simensen, that the application be accepted as complete. Motion passed.
Ms. Broderick continued:
- The business provides adequate parking and has maintained the character of the neighborhood by making improvements resulting in a low visual impact.
- The prior use was for an overhead door company for storage and retail use.
- The variance criteria were addressed in the application; the use is appropriate for the neighborhood and the applicant requested the continuation of the present use with reasonable conditions attached. A site plan review application will be filed with the Planning Board.
- Two abutters, Royea and Carr, sent letters which expressed no objections to the business.
There were no comments from the public. The hearing was closed at 8:35 P.M.
Deliberation: It was noted that the variance criteria being used was the new language which became effective 1/1/10.
Not contrary to the public interest:
- Mr. Bass felt that the because the business has been and is in use without problems with the abutters that granting a variance would not be contrary to the public interest.
- Mr. Broom felt that legitimizing the current operation would allow further use not authorized by the zoning ordinance. Mr. Bass suggested that restrictions to the variance approval would prevent expansion. Mr. Mitchell noted that relief for the present use is being sought; any changes by this owner or a subsequent owner would require further permits.
- Mr. Broom and Ms. Webster expressed concern regarding the term “mixed use & residential” feeling that it wasn’t appropriate to this area. Mr. Bass & Mr. Simensen stated that any approval could be very specific to this property.
Spirit of the Ordinance is observed:
- Ms. Webster read the description of the zoning district, stating that she did not feel the criteria were met by the requested use; Mr. Broom concurred noting that was the reason for the variance request. Mr. Bass felt that the Board needed to address how this property fit in with the surrounding neighborhood.
- Ms. Webster felt the Board couldn’t ignore the specific list of allowed uses approved by town vote; noting that it was her opinion that approving this application could affect other residential areas.
- Mr. Bass suggested that the use could be approved with a square footage restriction following Ms. Webster’s comment that the use of the buildings had to be considered.
Substantial justice is done:
- Mr. Bass felt the use is reasonable given the prior commercial use had permits. He did note that the prior use was limited to warehousing and now changed resulting in the variance request. It was explained that the Luschers’ original business was in compliance with the prior special exception permit, but had changed over the last several years.
- In response to Mr. Broom’s question, Mr. Luscher stated that less than 30% of the square footage is devoted to the manufacturing of parts, noting that the some of the manufacturing is for providing samples and for demonstration purposes.
- Mr. Mitchell explained that substantial justice is a balancing test: weighing the possible loss to the applicant against the possible gain or loss to the public.
- Mr. Broom stated that the special exception had limitations to it and the applicant could have reviewed the town files prior to expanding the business.
Values of surrounding properties are not diminished:
- All agreed that the business has been in operation with no known diminution of surrounding property values.
Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship:
- Mr. Bass stated that although the evolution of the business over six years should have been addressed earlier by the town and the applicant, a denial may shut down the business if forced to adhere to the original terms of the special exception. He felt the business could grow as long as it wasn’t more non-conforming.
- Mr. Mitchell clarified that non-conforming uses are usually governed by the ordinance: a non-conforming use may allow some amount of expansion if it is vested or grandfathered but a use that’s not allowed and is permitted by special exception may not expand without further permits.
- Mr. Bass felt that the natural expansion of the use was not affecting the neighbors.
- The Board discussed whether the manufacturing of parts was for sale of the parts or for the purpose of demonstration for the sale of the machines and for training. Mr. Luscher stated that the portion of the business devoted to sale of parts alone was very minor.
- Ms. Webster felt that a reasonable use was what existed at the time of the purchase of the property. Mr. Bass felt that refurbishing and training could be included in a reasonable use. Mr. Broom requested clarification of the difference between refurbishing and repairing versus manufacturing machines; general discussion ensued.
For discussion purposes, Mr. Bass suggested the following: grant the use variance to allow an expansion of the commercial use to include training, demonstrations, and repair and refurbishment of machines. There was general discussion regarding the square footage limitations for approval: the ordinance states 2,500 square feet and the special exception states 4,000 square feet. All agreed that the Planning Board could potentially also limit the square footage. Mr. Mitchell reminded the Board that any ZBA approval could include language legitimizing the current non-conforming building; the request is for the use in the entire building. He further noted that the Zoning Board is not an enforcement body and that the town and the applicants are now aware of the need for all appropriate approvals.
Discussion of square footage limitations continued at length, with the applicant calculating the area required for the different functions of the current business. Ms. Broderick stated that 4,000 square feet was already approved by virtue of the prior special exception. It was agreed by the Board that it would be more appropriate to specify a total square footage limitation rather than specify areas in existing buildings. In that regard, the Board agreed that use for office space should be included in the total square footage. A figure of 5,000 square feet was agreed to by the Board and the applicant.
Mr. Lorch stated that the Board needed to approve or deny the application as presented. Mr. Mitchell clarified that the Board could make a very specific motion that doesn’t have to grant or deny the variance request, but could grant the variance with limitations. If the motion is more limited it would supersede the variance request.
Mr. Simensen moved, seconded by Mr. Bass, to grant a use variance for this property to allow sales and storage of specialty machines and machine tools, parts, and refurbishing such specialty machine tools. In addition, the business may train customers to use these machines, and conduct demonstrations and set up of such machines. This variance is subject to site plan review and permitting of all structures on the site, and applies to approximately 5,000 square feet of business use, which includes the office. This approval does not allow manufacturing of parts for sale. In response to Board questions, Mr. Mitchell clarified that the Board needs to be satisfied that the motion as crafted clarifies and meets the five variance criteria. He further noted that approving this motion will not also approve the language as
requested in the application. The Board briefly reviewed the criteria again, stating that with the limitations, they felt the variance criteria were met. Vote: Mr. Bass – yes; Mr. Broom –yes; Mr. Simensen – yes; Ms. Webster – yes. Motion passed.
5. OTHER BUSINESS: none
6. ADJOURNMENT
There being no further business, the meeting was adjourned on a motion by Ms. Webster, seconded by Mr. Broom, at 9:30 P.M.
Respectfully submitted,
Wendy J. Huff
Secretary
Minutes Approved: March 9, 2010
Corrections: none
| 
