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Board of Adjustment Minutes 11/10/2010
Case #234-Rehearing for Signs for Jesus seeking a Variance to Article III, Section 3.18 to permit an electronic message sign on Map 4 Lot 168 located on Route 4.

Members Present:  Mark McIntosh, Chairman; Ben Brown; Richard Millette; Mike Paveglio, ex-offico; David Dobson; Steve MacCleery, Alternate.

Others Present:  Fabrizio & Jennifer Cusson, Stephen Boyd, Don Worster, Gary, Cara & Stephen Cote, JoAnn Luikmil, Allen Mayville, Thomas Houle, Joan Ames, Brianne Stone, Michelle Plunkett, Dot Kelly, Marsha Rich, Matt Spolar, Samuel Moore.

Stephen Boyd presented the case of behalf of clients Fabrizio & Jennifer Cusson, Signs for Jesus.

The motion for rehearing was granted due to the allegation that states Section 3.18 (C) (IV) (1) of Chichester’s zoning ordinance was not validly adopted.

Mr. Boyd went over the five criteria to be met for granting a variance.  First of all, he feels there was a misunderstanding as to the facts relating to the sign.  At the original hearing it was thought that the sign would be flashing or something out of the norm, more attention would be drawn to it.  That is not the case.  The sign will be illuminated but the message will remain constant, will not be blinking, scrolling, or changing every few seconds.  It would probably not change for 24 hours but could possibly change once every 15 minutes on occasion, which would be rare.  This will be the type of sign that can change its illumination levels.  At night it will be turned down to a more moderate level, less bright than the gas station sign across the street.
It is also felt that there was an error in the finding that the ordinance prohibits all electronic signs.  Under Section 3.07 that regulates signs, there is no reference to electronic message signs at all.  Signs for Jesus comply with the sign ordinance.  Section 3.18 relates to outdoor lighting which is to protect the visibility of nighttime sky without impacting safety by reducing lighting conditions including glare, light trespass and glow.  The wording “electronic message signs” is not defined in that ordinance.  This electronic sign would not be prohibited by Section 3.18.  Bright, flashing, and blinking signs are the ones that are prohibited.

The description in the warrant and public hearing notice, when Section 3.18 was amended, never included any reference to a prohibition to all electronic signs.  These types of signs are allowed in the site plan regulations.  

Was Section 3.18 validly adopted?  Under RSA 675:3, the Planning Board has to have a public hearing on a proposed zoning amendment.  There was a hearing on this matter and was noticed in advanced but under RSA 675:7 the notice of a public hearing has to be put in a newspaper with either the full text of the amendment being proposed or an adequate statement of the described proposed amendment.  In this case, there is neither.  In the case Bedford Residents v. Bedford, the NH Supreme Court ruled that if you don’t satisfy one of those two, the ordinance change is struck down and determined to be void.  We feel the warrant and the announcement in the newspaper were inadequate; there was just a reference to a change in zoning and a change in lighting.  There was no reference to a change in signs and nothing about a change to electronic signs.  An average person has to be put on notice that the town is considering banning or prohibiting something.

Mr. Boyd further stated that he does not feel that the proposed sign would alter the character of the neighborhood.  Across the street are two gas stations that have bright, illuminated signs for their business as well as other entities inside their establishments.  These signs are very distracting.  Signs for Jesus would be very consistent with the neighborhood.  Other signs along Route 4 are larger and brighter than this sign will be.
The variance request that is being made may be inconsistent with an ordinance, but isn’t grounds for denying a variance.  

The purpose of the outdoor ordinance in Section 3.18 is to improve the visibility of the nighttime sky by reducing glare, light trespass, and glow.  The board has not considered if the proposed sign would be any more or less of a light pollution issue than the existing businesses that already have signs.  This sign will be less intrusive than the existing ones.  The board could put a reasonable glare limit on the illuminated sign at night.
Substantial justice would be done by granting the variance because the project is appropriate for the area.  The sign will be less bright and distracting than surrounding signs and won’t make Route 4 any more hazardous.  There would be no gain to the general public by denying this variance, or harm to the abutters.

The sign would contain 9-10 words that will not be blinking or flashing.  The content of the sign should not be an issue here.

Mr. Boyd believes that the BOA focused on part (b) of the hardship test when it issued its previous decision and they should have focused on part (a).  If a hardship is found there, you never move on to (b).  He feels that Signs for Jesus satisfies the fair and substantial relationship between the general public purpose of the ordinance provision and the specific application of that provision to the property.  He feels there is no fair and substantial relationship to the purpose of Section 3.18 and the proposed sign.  The purpose of the ordinance was to improve visibility of nighttime sky without impacting safety by reducing glare, light trespass and glow.  The proposed sign is less bright than existing signs.  Given this, it cannot be possibly cause glare, light trespass or glow problems in the community.  

This use is reasonable because it fits the character of the neighborhood.  The addition of one less brightly illuminated sign is not going to change the characteristic of the neighborhood.

Under federal law, RLUIPA addresses protecting religious institutions and issues that arise on the property pertaining to religious uses.  This sign will be posting religious scripture.  The BOA can grant an exemption under this act if they feel the sign doesn’t meet the criteria for a variance.
The proposed sign will be changed remotely on the internet from a control room that will change the message on all the signs across the country.  A manual sign is not feasible in this case.

Thomas Houle, Planning Board member, stated that the feeling of the PB is that the town voted on this ordinance change and backed up the ordinance.  He believes the town voted no to electronic signs.  Even though something has been found with the way the notice was posted the vote speaks for itself.

Mark McIntosh feels the BOA needs to decide if the town posted the notice properly for this ordinance to stand.  If the zoning isn’t valid then the applicant cannot seek a variance because one would not be needed.  He would just have to go back to the PB and go through a site review for the sign.

Mike Paveglio added that a public hearing was held about the zoning changes and the copy of it in their evidence is the only one that was posted.  The posting didn’t summarize what it was about which is what the Bedford case was about.  Did the PB consider that?

Thomas Houle responded that the PB did consider that but the public speaks for itself.  This is just a loophole someone has found.  The people had the information in front of them when they voted for that zoning.  The public notice is a technicality.  Doesn’t a vote mean anything?
Steve MacCleery said that the vote does mean something but, in the Town of Bedford the same thing happened.  Their case went to court and it was determined that their notice was not sufficient.  We now have new case law that is on the books.

Richard Millette asked, in reference to RLUIPA, what provisions would there be if the town were taken to court and loses?  Mr. Boyd replied that it would be possible the attorney fees and civil damages would be awarded to Signs for Jesus.

Brianne Stone had concerns about RLUIPA and asked if there would be an actual structure such as a church on the property.  It was explained that at the present time there will be a control room which will be used to change the religious message and that a religious use of the property is covered under RLUIPA.  She also added that since Jan. 2009 there have been numerous accidents at this intersection with several of them being attributed to distractions.  She feels that this sign would add more of a distraction to the area.

Michelle Plunkett said that people know what gas station signs are all about but no one knows what is going to be on this sign.  She had a concern about the sign being there without a building/business.  It was explained that at a previous public hearing the BOA made the ruling that the sign was a business.

Ben Brown stated that a previous gas station had a scrolling electronic message sign which was not approved and he feels that is what brought this ordinance change about.

Mr. Houle stated that the statute of limitations on this ordinance change will be up in a few months and it’s a shame that lawyers can take away from the fact that the town voted on this.

BOARD DISCUSSION

Mike-We need to make a decision if zoning wasn’t posted properly versus the vote that was made.
Ben-We can be opening a big can of worms that can cost the town a lot of money.
Steve-If it is determined zoning was not posted properly and therefore not valid, a variance can’t be allowed.  They have no reason to be here asking for one.
Mark-A decision needs to be made about the legality of the ordinance and posting.
Steve-A correct legal notice needs to be put in the paper to correct this issue.
David-We could grant an exemption on the religious land use act.
Richard-Feels that RLUIPA is a terrible law that grants a certain entity more rights than others.

MOTION

Ben Brown motioned that the ordinance 3.18 (C) [IV] 1) “and electronic message signs” is not valid pursuant to RSA 675:7 due to being improperly noticed based on the public notice in the Suncook Valley Sun dated 11/16/2005.  Therefore, a variance is not warranted.  Motion was seconded by Mark McIntosh.

VOTE ON MOTION

David Dobson-Yes
Mike Paveglio-Yes
Mark McIntosh-Yes
Richard Millette-Yes
Ben Brown-Yes
Motion carries 5-0.

Respectfully submitted,

Holly MacCleery, Secretary

Mark McIntosh, Chairman
Chichester Board of Adjustment



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