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Planning Board Minutes 02/09/2011
Chichester Planning Board
Minutes of Meeting
February 9, 2011
[Bracketed] items indicate corrections made at a subsequent meeting.

Members Present:  Chairman Tom Jameson, Vice Chairman Richard Moore, Ex-Officio Jeffrey Jordan, Stan Brehm, Kevin Mara, Allen Mayville, Thomas Houle, and Jamie Pike Secretary.

Chairman Jameson opened the meeting at 6:30pm

The minutes of January 5, 2011 were reviewed and a motion was made by Dr. Mara and seconded by Mr. Jordan to approve the minutes as written.  Motion passes.

The minutes of January 6, 2011 were reviewed and a motion was made by Mr. Brehm and seconded by Dr. Mara to approve the minuets as written.  Motion passes.

Site Review, Bethal Builders (AKA Signs for Jesus)
Applicant Fab Cusson and Engineer Matthew Moore were present to speak on the merits of the application.

Mr. Cusson addressed those items brought forward at the meeting on 1/6/2011 which included;
•       The addition of a parking detail,
•       The sign has been reduced to 5ft 10in by 4ft
•       An application for a driveway permit has been submitted to DOT
•       Details have been added to plan noting the location of the existing well and leachfield and their method of termination
•       Detailed topographic lines have been added to the plan to reflect current conditions as there is no future site grading proposed.
•       The wetlands upon the site have been delineated.
•       An application for a sign permit has been submitted to DOS
•       Message length
o       Mr. Moore [and others] expressed concerns regarding the length of the message and how to reduce distraction.  The letters are proposed to be approximately 8in by 4in to provide suitable readability
•       [Sight] lines
o       The sign has been placed in excess of the required 18 feet from edge of curb at 20 ft, therefore not blocking any [sight] lines

A motion was made by Dr. Mara and seconded by Mr. Jordan to accept the application as complete and into the jurisdiction of the Planning Board.  Discussion:  Mr. Houle expressed his continued concern regarding safety of the sign at the proposed location.  Motion passes.

Pursuant to RSA 673:11, Chairman Jameson appointed Mr. Houle as a voting member for the purposes of this meeting in the absence of Mr. Arell.

Chairman Jameson opened the Public Hearing upon the current application.

There were no abutters present.

Mr. Joshua Stone read the following statement for the Board,

In 2005 Carlson Motors sued the city of Concord after they were denied an application for an electronic changeable sign.  The case made it to the NH Supreme Court with the following being the opinion of the Supreme Court.  Regarding the allegation of a violation of the First Amendment they stated…

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers.  Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.

Another issue was that Concord claimed the sign to be a safety problem.  Carlson believed that no evidence was presented to support this claim.  The court found that…

The Supreme Court recognized that the California Supreme Court had held [that] as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably related to highway safety.   As the Court stated, noting that billboards are intended to, and undoubtedly do, divert a driver’s attention from the roadway…the California Supreme Court agreed with many other courts that a legislative judgment that billboards are traffic hazards is not manifestly unreasonable and should not be set aside.

The court went even further to say that

Zoning is a legislative function, and judging the wisdom of the legislation is not the function of this court.  The State zoning enabling act grants municipalities broad authority to pass zoning ordinances for the health, safety, morals and general welfare of the community.  In enacting a zoning regulation, a town may consider the knowledge of the town selectmen and planning board members concerning such factors as traffic conditions and surrounding uses resulting from their familiarity with the area involved.  Furthermore, a municipality may exercise its zoning power solely to advance aesthetic values because the preservation or enhancement of the visual environment may promote the general welfare.

This means that the board can deny the application of this sign without a valid ordinance in place, making the attempt to circumvent the current ordinance through a technicality a moot point.  The Board could even deny the application because the sign is not aesthetically pleasing.  The Board has not only an obligation, but also a duty to deny the application in this case due to safety concerns.

Mr. Stone also read the following statement regarding traffic and safety at the proposed location,

The proposed sign is to placed at the most dangerous intersection in town.  Between January 2009 to the present there have been 29 accidents at intersections in town, 12 of those were [at] this intersection, almost 50 percent.  Of all the accidents in town, 12.8% were attributed to driver inattention or distraction.

According to a 2003 study put out by the Wisconsin Dept. of Transportation, as they put it, electronic billboards are designed to catch the eye of drivers.  Their presence may distract drivers from concentrating on the driving task and the visual surroundings.  The study found that drivers traveling at 60mph could only read nine words or symbols before they passed the sign.  60mph is a common occurrence at this intersection.  The proposed sign is not being regulated on the amount of words it can display.

Mr. Brehm expressed a concern about the operation of the sign with regard to the need for a condition that the sign shall not change less often than every fifteen minutes.

Mr. R. Moore, in reviewing the ordinance, asked Mr. Cusson for the total light value produced by the sign.  Mr. M. Moore explained that wattage, as used in the ordinance, cannot be used and is not a measurement of light output but only a measure of electricity usage.  The proposed sign produces a maximum of 4,000 Nits [or 371.61216 lumens].  (A nit (cd/m2) is an amount of emanating light equal to one candela per square meter, where as a lumen is the amount of light energy reflecting off one square meter area at a constant distance of one meter from a one candela light source.) Mr. Cusson also reminded the Board that the message will be static in nature and will not blink, flutter, or scroll.

Mr. R. Moore reviewed other requirements of the ordinance;
•       No more than 900 lumens to be emitted – conforms
•       Not to backlit by more than 60 watts – conforms
•       Size not greater than 6 x 4 feet – conforms
•       Evening hours light reduction – sign automatically reduces light intensity as outdoor light decreases
•       Landscaping – plantings are proposed for the sign base and around the control room
•       Parking requirements – conforms
•       Building design and façade treatment – The building is proposed to be sided with white vinyl siding to be consistent with traditional New England architectural character

Mr. Mayville asked the members of the Board that if billboards are not permitted, how is this sign allowable.  It was explained that billboards are used to advertise off site businesses and the ZBA found that Signs for Jesus was an onsite business as the sign is the primary nature of the business.

Mr. Brehm asked a question of parliamentary procedure; in the case of a number of members abstaining from voting on the application because their interpretation of the zoning ordinance does not agree with that of the ZBA, what would be the result.  [In referring to Robert’s Rules of Order (section 39); all votes are calculated on the basis of present voting members, abstentions have no effect on calculation of votes.  A majority is defined as more than 50% of the votes cast. An abstention is not considered a cast vote.]

Mr. Houle spoke regarding the safety issue with respect to the sign and the potential of distracted drivers.

Mr. Brehm expressing his opinion regarding the development of the lot for the primary purpose of displaying a sign, is not a good development and is not consistent with the intent of the Commercial Village Zone and does not enhance the potential for or attract future businesses that are consistent with the design elements of the zone.

Mr. R. Moore asked, if an increase in accidents occurs and is attributable to the sign, what recourse or future mediation may happen to alter the development of the site.  Mr. Jordan felt that if approved, the Town would be taking on certain liabilities with respect to the safety of those persons commuting through the community.  Mr. R. Moore further stated that this type of sign is a cause of distraction where other signs [, such as gas prices where only four (4) digits are displayed] in the Town are primarily for the onsite business and are not primarily designed with the intent of being read for the purpose of the message alone.  Mr. Jameson adamantly felt the sign is not a safety issue as there are numerous other signs throughout the Town that are similar and change routinely to provide a new message.

Mr. Alan Williams stated that if a permit is issued by the Department of Safety for the sign, that the safety aspect of such is within their jurisdiction, and it would be their role to address any safety issues.

Dr. Mara expressed that no matter how strongly certain members of the Board may feel regarding the interpretation of the zoning ordinance, the sign is a permissible use of the property under the ordinance, as found by the ZBA.

Mr. R. Moore wants to insure that due diligence is taken by the Board with respect to the concern of safety for the travelling public.  Mr. Cusson rebutted that the proposed sign is designed so all sight lines are clear and open and that the area has a reduced speed limit.  Mr. Jameson reminded the Board that they have already approved a similar sign for “Bobcat of NH” in an area a high speed and reduced visibility due to area topography.

Mr. Brehm expressed his displeasure in the manner which the applicant used the law to technically overturn the good faith votes of the residents of the community.

A motion was made by Dr. Mara and seconded by Mr. Jameson to conditionally approve the application and make such approval final upon the submission of approved permits for the sign and the driveway from the Department of Safety and the Department of Transportation respectively.   Mr. R. Moore feels there are more issues to be brought forward with respect to these permits. The Board felt that the permits were not the responsibility of the Planning Board.  Mr. Jameson while feeling that there may be a case for increased liability to the Town with respect to safety, there is no proof that this sign will cause the actions portrayed.  Mr. Jameson called for a vote on the motion.  Yea:3  No:4; Motion Fails.

A motion was made by Mr. Houle and seconded by Dr. Mara to deny the application for reasons of safety with respect to the potential for rear-end collisions and distracted driving.  Discussion:  Mr. Mayville stated he would prefer a greater public opinion upon the application.  Yea:3 No:3 Abstain:1; Motion Fails.

A motion was made by Mr. R Moore and seconded by Mr. Jordan to continue the hearing to March 3rd to receive any additional input from the Departments of Transportation and Safety regarding the application previously submitted to them.  Mr. Jordan withdrew his second.  Motion tabled.

A motion was made by Mr. Jameson to conditionally approve the application and make such approval final upon the submission of approved permits for the sign and the driveway from the Department of Safety and the Department of Transportation respectively.   As there was no second,  Mr. Jameson withdrew the motion.

A motion was made by Mr. R Moore and seconded by Mr. Mayville to deny the application for the following reasons regarding safety, concerning the installation of a sign intended for drivers to read a lengthy message on a daily basis at an intersection where traffic is converging, with the potential for collisions.  Yea:4 No:3  Motion Passes.

For the purpose of clarity towards the applicant, the Board members based their vote upon the reasons stated within the passing motion.  Mr. Cusson expressed to the Board that they may be setting precedence within the town with respect towards other businesses that may want to come and develop within the Town of Chichester.  Mr. Cusson requested a rehearing upon the application with the Board.  It was explained to Mr. Cusson that a mechanism for a rehearing could not be found within the statute governing Planning Boards.

Conceptual Consultation; ECW Investments
Allen Williams was present to speak on the merits of the proposal.

Mr. Williams proposes to convert the existing store front located at 81 Kelley’s Corner Road into a 4th apartment unit.  A letter was supplied to the board citing that there were no building code objections to the proposal.  Mr. Williams also submitted a draft septic plan.  Also a parking plan was submitted which provided more than sufficient parking for the purposes of the multi-family unit.

Being no further discussion and a finding that there was no significant change to the site, a motion was made by Mr. Jameson and seconded by Mr. Mayville to: not accept jurisdiction of the presented application pursuant to Zoning Ordinance Article II 5(b) for reasons that there is no substantive development, expansion, or change in impact upon the site subject to the provision of 1) a detailed parking plan in conformance with the Chichester Zoning Ordinance, 2) a NHDES approved septic plan for the proposed use, and 3) that all applicable building codes are adhered to.  Motion passes.

Other Business:

Mr. Cusson approached the Board stating that their decision will have a significant impact to all businesses on Route 4.

Mr. Jameson explained to the Board that the Board of Selectmen and the Budget Committee removed the stipend for the Planning Board Chairman.  A lengthy discussion ensued.

Mr.Pike presented the Board with materials submitted by Bobcat of NH for compliance with their conditional approval.

Due to many conflicts with the scheduling of the March meeting, the next meeting will be held on Wednesday, March 9th at 6:30pm.

Being no further business, a motion was made by Dr. Mara and seconded by Mr. Jameson to adjourn the meeting at 9:35pm

Respectfully submitted,

Jamie a Pike

Thomas Jameson, Chairman

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