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Board of Adjustment Minutes 12/14/2005
DECEMBER 14, 2005

Case #193 Realty Income Corp/Larry Leppard, Map 4 Lot 30 located on Route 4, requesting a use variance to Article II, Section CV to permit a commercial parking lot for the benefit of adjacent lot Map 3 Lot 10, Meyers RV Superstore, also located on Route 4.

Members Present:  Edward Meehan, Chairman; Stephen MacCleery, ex-offico; Ben Brown; Mark McIntosh; David Dobson.

Owner of Map 4 Lot 30-Larry & Jo-Ann Leppard
Abutter-Robert Shaw
Representing Realty Income Corp-Eaton W. Tarbell, III; Joe Wichert, Licensed Land Surveyor; Matt Brooks, contractor; Louis Manias, Real Estate Appraiser.

Eaton Tarbell explained to the board the reason why Map 4 Lot 30 needs a use variance is because of the new Commercial Village District zoning, commercial parking lots are no longer a specifically enumerated allowed use.  The applicant, Meyers RV, has been successful and they need additional parking in order to maintain the demand for their inventory.  The most sensible way to do this is to add a parking lot.  They are not able to add more parking on the existing lot since there is an environmental easement behind it preventing the expansion of a parking lot.  Purchasing the adjoining lot would be beneficial to their business because they would be removing the present existing access point to Route 4.  There is currently a residence on this property which will be taken down.  Access to this lot would be through the Meyers RV property and not Route 4.  Less points of access on Route 4 make it safer for everyone.  If this variance isn’t allowed the inventory will have to be put it in a different location which is not beneficial.  They would like to have their inventory in a contiguous location.  This use is consistent to the surrounding properties.  The ordinance itself does not prohibit the use of commercial parking; most uses require some commercial parking.  This is different than an ordinary application since there is already an existing structure built next door that needs some additional work, it is not a free-standing commercial parking lot with no benefit.

Joe Wichert stated that the overall intent, if the variance is approved, is that Meyers RV would build an additional parking area on this lot.  It would comply with all the existing requirements of the Planning Board through the site plan process.  They would try to maintain as much of the existing stonewall as possible.  The stonewall will have to be broken in order to gain access between the two lots.  There would be a landscape buffer on the Route 4 side, around the north side of the proposed parking area.  A storm water detention basin area to the front of the property is being planned.  DOT is planning another expansion of Route 4 in the future.  We are putting the landscape area back from Route 4 in anticipation of the expansion so there will not be any additional obstacles pertaining to this project.  We are trying to eliminate the need for a satellite parking location.  

Ed asked if they were purchasing the property in question.
Joe stated that there is currently a single family house with parking for the house on the lot now.  The house would be removed and the proposed parking for Meyers RV would be installed.  Once the topographic and boundary survey is completed this will comply with the 70% impervious ordinance.  It would be in compliance with the majority of the site being utilized by either pavement or landscaping or drainage.

Steve stated that this is being called parking but it also sounds like sales.  Is this parking for customers that visit the business or RVs for sale sitting there?

Eaton responded RVs sitting there for sale.  

Steve-The application says parking area, not sales area.

Eaton-Didn’t feel there was a difference between people coming in or your inventory sitting on a parking lot.  It will be set up like a typical parking lot.  It will not be set up any differently than the existing Meyers RV parking lot.

Steve-The way the application was worded I felt this was for parking for customers/employees, not for inventory.

Eaton said their purpose was not to mislead anyone but the purpose from the beginning was to allow for additional inventory.

Matt Brooks, general contractor, stated that Meyers was a family, community run business which likes to keep their RV sales in a fenced in area, which they currently are.  When they take inventory to detail it, it is no longer in a fenced in area.  The proposed lot would be a combination of both parking and storage.  A camping store is being built currently on Meyers property.  They would like to enhance the property.  

Steve-This is customer parking/sales?

Matt-It would have to be since they will be putting RVs onto it.  It would have to be fenced for security reasons I would think.

Ed asked if they had been to the Planning Board.  

Joe stated that they saw the PB for the addition to Meyers but not for this phase.  They are looking for BOA approval first.  There are 28 acres on the existing Meyers site of which 6 or 7 are paved.  There is also a 16 acre conservation easement to the rear of the property.  It is owned by Meyers but has a deed restriction as to what can be done with it.  It can’t be developed or paved.  

Steve-Is this piece of property going to be annexed to the existing Meyers property?  Lot line disappearing so it will be one deed and one piece of property?

Eaton-Meyers RV doesn’t have a preference one way or another.  Right now it is a deeded saleable lot so it seemed to make sense for this application to keep it that way.  In the event that they didn’t need this parking in the future, it could still be sold as an individual lot.  I think their plan is to keep it as a parking lot so if they were requested to merge the two it would not be resisted.

Steve-In the past there was an assessing problem with the tax cards because all the lots in question were not consolidated.

Joe-When we did the original Gary’s RV expansion one of the conditions of that was to do a consolidation plan so the property is all on Lot 10.  The actual plan that was recorded with the conservation easement was a consolidation and easement plan.

Ben-If this was consolidated do they need to be here?

Steve-They would have to go through site review with the PB.

Eaton-I understand the way this is structured right now, Meyers does not currently own the property.  If they owned it now this would be treated differently, they would have merged it.

Steve-Even if Meyers owned the lot they would have to meet with the BOA because of the new Commercial Village District.  You are adding on a substantial paved area to a now non-conforming business.

Eaton-We felt this was the most logical and honest approach.  

Joe-DOT looks favorably on limiting access onto Route 4.

Ed-Could the parking/sales area be buffered so it wouldn’t be so obvious?

Joe-We are proposing a double row of plantings to shield the parking area from Route 4.  Evergreens are being planned.

Louis Manias, appraiser-submitted a report of his assessment (on file).  He needed to determine if this proposal would diminish surrounding property values.  The use of the property as a parking/display/staging area does not appear to be inconsistent with many of the uses currently on Route 4.  This will be an accessory use to Meyers RV Superstore.  The neighborhood is nearly 100% commercial.  There are only a few strictly residential properties left in this area.  Route 4 is a federal highway with no side walks.  The existing use on the property is a two family home sitting on a non-conforming lot, 1.6554 acres.  The minimum requirement in this zone is two acres.  The proposed use of a parking lot/staging area is more consistent to the area and the CV district.  The CV zone doesn’t push residential uses.  Because of his findings, Louis does not feel this use would diminish surrounding property values.  

Ed-In your report you say “The proposal for the subject property, as a parking and display lot for Meyers RV Superstore, does not appear to be inconsistent with the uses already found in the subject neighborhood.”  I agree with you however, most of those businesses were present before the CV district was proposed and passed.  In the zoning it says “the intent is to create a village zone which promotes a change in the development patterns in the area and creates an attractive center for service, retail, and commercial opportunities.  It is also the intent of the district to encourage development with architectural features that reflect the traditional New England character of smaller village areas.”  I’m sensitive to the fact that Route 4 is not a small village area, but what I think the town is trying to do is to change this area so it doesn’t look like a bunch of box stores.

Louis-It is nice to keep the big box stores out because they tend to over take a particular neighborhood.  With this CV zone being extremely limited in size, and not expanded beyond the 36 parcels, the big box stores are not going to come to Chichester.  Land is not available for it in the CV zone.  The CIMF zone extends only 1000’ on either side of Route 4.  On Route 28 it only extends 500’ on either side.  

Ed-What do you feel the towns intent was with the CV district?

Louis-What is difficult with this is an amendment to zoning that is only 6 months old.  Everything is new to it.  You have to look at what is already in place and if the proposed use will be consistent with what is currently there and whether it is forbidden by the zoning ordinance.  

Ed-We have to look at the CV zone and the towns intent, regardless of what is currently out there.

Louis-My biggest issue is the diminution of value to the surrounding properties if this variance were granted.  It is my opinion that there isn’t.  I believe that there is no data that would ever support that the expansion of a display/staging area would reduce property values.

Ed-We, as a board, look at ways that will have minimal impact, visual or otherwise.  

Steve-In reading through CV zoning under Waivers, I’m not sure if it is for the entire CV zone or whether it is to this conditional use permits.  The zoning states, “The purpose of granting waivers from the provisions of this section is to recognize that strict conformance to these regulations as presented may not be necessary or practical in all cases and circumstances.  Therefore, the PB may waive particular requirements set forth in this section where the PB finds that a development is better served by not adhering strictly to the provisions of this section and where the applicant demonstrates that granting a waiver would: Not be detrimental to the public safety, health or welfare, or cause injury or damage to other property or fail to promote public interest; Not vary the intent of the Town of Chichester Master Plan; Substantially ensure that the goals, objectives, standards, and requirements of this section are not compromised; Be reasonable and appropriate due to the scale and size of the proposed project; and/or Protect natural features that would otherwise be impacted.”

Eaton-We are aware of the waiver section mentioned but the reason we are before the BOA is because there are no standards that are set forth for a commercial parking lot/staging area.  It is not a permitted use.

Steve-You felt you couldn’t present this to the PB and it was something that they could have waived the requirements to allow the parking lot expansion?

Eaton-That was my understanding of it.  I also met with the Building Inspector and he was also of the opinion that a variance was necessary.  We did receive a waiver from the PB last month to construct an addition to Meyers RV because it exceeded the sq. ft. requirement.  We felt because of the size of the lot we should come before the BOA first.  

Steve-Where the applicant has not been to the PB and asked for a waiver and been denied, you don’t know whether they would have granted one or not.  The PB may have a different interpretation of the waiver clause.  

Eaton-We needed to start somewhere and we felt it was more logical to start with the BOA first.

Ed-I have concerns myself that they haven’t approached the PB first.

Steve-According to the BOA Handbook we cannot grant a variance if there is another avenue the applicant can pursue.  Seeking a variance is the last resort an applicant can apply for, not the first, if this is a PB issue.

Eaton-We couldn’t comply with the zoning in the CV district without a variance.  I don’t feel that the waiver is quite that broad.  It is certainly debatable.

Steve-The way I read the waiver, the PB can waive any of the requirements within the CV district.

Ed-It seems to me that they could waive permitted uses as well.

Steve-“Granting waivers from the provisions of this section” as it reads, is it the entire CV district?

David-They would have to follow all the required provisions.

Ben-If we granted a variance, what would we be granting a variance to?

Steve-We could grant a variance to the entire CV district but it would not be wise to.

Eaton-We are requesting a variance for a commercial parking/staging area to be allowed in the CV district.  

Steve-If we allow the parking area we want to make sure it doesn’t turn into just a sales area.

Bob Shaw, abutter-Lives behind these lots on Horse Corner Road.  Basically, they will be using this property to put vehicles temporarily as they are being sold?  This will be used like a holding area for sold vehicles until they are shipped out?

Matt-That is their intent.

Ed-If the parking lot could be made as innoxious as possible it would be something I could support.  I feel we have made it a policy of this board that we only grant a variance as a last resort when it is necessary.  If there is a possibility of a waiver from the PB they should go before them first.

Ben and Steve agreed.  The applicant could try and get on the PB agenda for their January meeting on the 5th and see if it is something that can be handled there.  If not, this public hearing can be continued.  Marked added that we could continue this meeting hinging on the PB decision.  If the PB feels they cannot grant a waiver, we will reconvene this public hearing without going through the application process again.

Eaton-I am concerned that if I legally need to obtain a variance, even if a waiver is granted, and a new board comes in here and changes their mind, I don’t know if we are any better off.  Would it be more appropriate to conditionally rule this evening and then get opinion of counsel?  I’m also concerned with the timing restrictions and the cost of having the other representatives return for another meeting to testify.

Ed-All the testimony is on record so no one should have to fly back to be here.

Steve-I have enough testimony so I could vote, my only question is whether or not the PB can grant the waiver.  If they can grant the waiver then we shouldn’t be here tonight.  This ends up being the interpretation of the PB because they put this before the town.  The applicant would still have to go before the PB for site review whether a variance were required or not.

Ed-If the board so chooses it can vote on a variance but I would like to be sure what we are voting on.  I think they should go before the PB.  

Ben-If the option of going to the PB for a waiver is available to them we don’t have a choice.

Steve MacCleery moved that the applicant go before the Planning Board to seek a waiver, if allowed, to the Commercial Village District before the Board of Adjustment has the authority to grant a variance.  This hearing will be continued in the event the Planning Board denies their request for a waiver.  In the event the waiver is granted this application will be dismissed.  Mark McIntosh seconded the motion.

Ben Brown – Yes
Steve MacCleery – Yes
Ed Meehan – Yes
Mark McIntosh – Yes
David Dobson – Yes

Motion carried 5-0.

The next BOA meeting will be held on Wednesday, January 11, 2006 at 7:00 PM to go over the Rules of Procedure and filing fees as well as any other business that may come before the board.

Respectfully submitted,

Holly MacCleery, Secretary
Chichester Board of Adjustment

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