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Downloadable Minutes available here (17 pages, 170 KB)
October 26th, 2011
Members Present: Dan Beers, Ken Chester, Hunt Dowse, Linda Renna, Jeff Reder, Alison Rossiter, and Linda Coughlan, Recording Secretary
Others Attending: Jonathan Gibson, Don & Rita Klug, Timothy Lord, Dennis Rossiter, Marie Fogg, John Jordan, Jeannette Baker, Barbara Caverly, Mary Covington, Warren & Lois Sponsler, G.M Sargent, Mary Garland, Elizabeth Kerwin, Caitlin Mullin, Marcia Neuhardt, Elisabeth Tobbey, Steve & Eleanor Fillebrown, Peg McLeod, Barbara & Jarvis Coffin, Woody Huntington, Bonnie Drummond, Elinor Johnson, Dennis Caldwell, Susan Smith, Nancy & Jim Musarra, Jean Govatos, Jackie Hill, Fran Hillner, Margaret & John Carlson, Kathleen Villeneuve, Jon Grosjean, Sandy Weston, Jane Billings, Anne Peirce, Andy Peterson, Pat Payne, Mike and Georgiann Fallon, Attorney Tom Hanna, Scott Manning and Kathy Hatab
4:00 P.M.- Alison Rossiter called the meeting to order. She said this was a rehearing for an application by Jonathan & Camille B. Gibson for a Home Based Business under Article 15.6.9.that the zoning board had approved on August 24th. She said a Motion for a Rehearing under RSA 677:2 had been submitted by Attorney Hanna on September 23rd. The Board met on September 28th to consider the Motion for Rehearing at which time they decided to seek town counsel. Alison said the board had met on October 12th at 6:00 for a non-session under RSA 91-A:2, I(b) to review town counsel's letter and then at 7:00 they met for the public meeting to discuss points made in the appeal motion for the rehearing. After discussion, they had decided to rehear the case today, October 26th at 4:00. Alison said the board had met at 3:30 prior to the hearing for a non-session under RSA 91-A:2 I(b) relative to legal counsel.
Alison introduced the board members and noted voting tonight would be herself, Ken Chester, Hunt Dowse, Dan Beers, and Linda Renna. Jeff Reder would be an alternate who could participate but could not vote. Alison explained the procedure that would be followed for the hearing beginning with testimony from the party who had requested the rehearing, than the applicant's testimony, then those who were in favor or support would be allowed to speak, followed by those who were in opposition, then the applicant's rebuttal. At the close of the hearing, the board would begin their deliberation phase of the hearing. She said after the hearing, the board would review the minutes of the past two meetings.
At this point, Alison asked that the party who had requested the rehearing to come forward for their testimony.
Attorney Hanna came forward to say that in his experience he had never heard of a rehearing beginning with testimony from the opposition. He said a rehearing was a fresh start and it should begin with the applicant's testimony. Hunt said it was a process that town counsel felt was reasonable. Hanna also stated that he objected to the non-session meeting held prior to the hearing which he wanted to note for the record that he thought it was an illegal meeting. Alison said his objection would be noted. Alison asked that anyone who wished to speak in opposition to the application could now do so.
Scott Manning began by stating he lived at 20 Main Street. He said he felt it was unfortunate that those with objections to the incursion of a retail and manufacturing outlet in the residential district of Main Street weren't given a fair hearing last time. He said the supporting neighbors were given a wide berth to talk about the character of the people who would like to buy the property. He said this was not the issue and since they were told not to bring up topics outside of the criteria he felt it had no place in the discussion. Scott said there was a lack of control when the opposition was speaking and they didn't address the criteria as those in opposition were requested to do. He said he still maintains there are serious parking issues and the business will have negative implications on property values. Scott said what has happened on West Street in Keene with turning once-beautiful Victorian homes into commercial properties could happen here.
Attorney Hanna came forward and began by stating he was representing the Fallon's, Scott Manning, Kathleen Hatab and the Peirce's. He said none of his clients are suggesting that this is a bad business or that it shouldn't be in Hancock, just not at 14 Main Street. They would welcome him in another location. At this point Hanna circulated a Supplemental Memorandum of Law to the Board. Hanna said he would not be going over everything from the hearing of August 24th but would briefly go over the Supplemental Memorandum of Law copies of which he circulated to the Board and to Jon Gibson. He said he would ask that the Supplemental Memorandum of Law be added to the previous submission as a complete record.
Points brought up by Attorney Hanna in the Supplemental Memorandum of Law relative to the criteria required for a Home Based Business:
15.5.2 The proposed site is not an Appropriate Location for the Proposed Use: 1) Proposed site is located in a residential neighborhood where homes on nonforming lots, predating the Zoning Ordinance, are in close proximity to each other and residents in the neighboring homes will be greatly impacted by the noise and traffic generated by the Applicants' proposed use. Hanna said this is not an appropriate site, it's a residential district surrounded by houses on non-conforming lots. He said the subject lot does not meet the square footage requirement and the frontage is 83 feet while the required frontage is 150 feet.
2) Driveway at 14 Main Street is located almost directly opposite the intersection of School Street and Main Street and very close to the busy intersection of Main Street, Forest Road (Rte. 123), and Bennington Road (Rt. 137) where it is undesirable to allow a home based business that will result in increased traffic near this busy intersection. This is especially true with visitors backing out onto Main Street into moving traffic. Hanna referenced a letter from James P. Phippard of Brickstone Land Use Consultants, LLC who had reviewed the property and the proposed change to the use at 14 Main Street to allow Gibson Pewter a home based business.
Phippard's summary in his compliance review stated that in reviewing the proposal for compliance with the Town of Hancock regulations and State and Federal land use regulations, he found the home based business as proposed will not comply with several town, state and possibly federal requirements. Onsite parking is not adequate for safe ingress and egress while providing emergency access and loading access outside the public right of way. A NHDOT Driveway Permit for a Change in Use has not been obtained. Information has not been provided to show that the onsite septic system can accommodate increased use. Information has not been provided to show that minimum air quality standards will be maintained. Information has not been provided to show that fire and life safety codes can be met if the proposed manufacturing use is introduced at the site. Phippard had concluded in his summary that he would not recommend this site as an appropriate location for this home based business.
Hanna added as shown in the aerial photo provided in his summary, the 20 foot driveway is not a straight 20 feet back. The stairway protrudes into the driveway which cuts into the number of parking spaces. He said the maximum parking spaces would be 6 spaces while the applicant has stated there would be eight spaces. Hanna stated every community that he has worked in requires 2 spaces per dwelling. Any commercial activity requires adequate parking for tours, customers, and the residents. Hanna said if the application is approved, three employees or apprentices would be allowed which would increase parking. He added that as he states on page 2 of his memorandum, the business has been identified in a "Yankee Magazine Travel Guide Editor's Pick which could be a draw for customers.
3) Applicants' proposed use is a well-established commercial operation that will be moved to a historic home in a residential neighborhood on Main Street. The proposed use, the manufacture of pewter items and the separate retail sale of the finished products, attracts many visitors as well as customers. Hanna went on to list many activities such as "Christmas in the Centre", "Annual Pewter Run", metal spinning for the annual NH Open Doors Studio Tour which drew many visitors.
4) Gibson Pewter uses UPS for shipping products ordered on its website. This will also generate commercial traffic to the site. The UPS trucks will have to park on the side of Main Street which is a State highway.
5) The operation of the proposed use at 14 Main Street will generate significant commercial traffic for this full-time business.
6)Applicants' prior testimony stating there will be an average of 2 -3 customers/visitors per day is unreasonable in light of NHDOT evidence that show 260 plus vehicles per day passing the current Hillsborough Center business as compared to the 4,200 plus vehicles per day at the proposed Hancock location.
7) The Applicants' proposed use is a mixed use of a single-family residence and the 600 square feet of commercial space will result in excessive traffic for this location.
8) Article 15.5.4 requires a finding by the Board that the proposed use and associated plans for parking, access and egress would not create a nuisance or serious hazard to pedestrian or vehicular traffic or excessive congestion nor create excessive wear and tear on public streets.
9) The neighbors assert that the proposed use and plans for access and egress will create a nuisance, a traffic hazard and traffic congestion.
10) The above is especially true in light of the Applicants' inadequate plans for parking and associated impact upon access and egress.
11) Applicants' have asserted that "there are 8 parking spaces at 14 Main Street in the driveway which is more than enough." The 8 parking spaces are the driveway, requiring six cars to back out onto Main Street to allow two cars to exit the site. James P. Phippard of Brickstone Use Consultants, LLC has visited the site and determined that the driveway will accommodate 6 vehicles at most. (Phippard letter, Exhibit B).
12) Applicants failed to submit a site plan as required.
13) There is insufficient parking to accommodate the homeowners, the three (3) non-resident employees (or apprentices), customer, visitors and UPS delivery trucks. No off-street parking space for loading and unloading.
14) Property at 14 Main Street is on a State highway which at a minimum when considering access and egress for the proposed use would create a nuisance or serious hazard to pedestrian or vehicular traffic. The Board must determine with the proposed mixed use of residential and commercial the applicant must qualify for a new driveway permit under the Town of Hancock's Driveway Regulations and under the State of NH Department of Transportation driveway policy and comply with the parking requirements for a non-residential use as required under the Site Plan Regulations for Nonresidential Development in the Town of Hancock.
15) Article 15.5.6 requires a finding by the Board that "adequate and appropriate facilities will be provided for the proper operation of the proposed use, including facilities for potable water and disposal of waste". Hanna added that there is a 1,000 gallon septic tank for a 4 bedroom house. The added use could add 300 gallons a day. There has been no inspection of the well and the septic is inadequate for the added use. The applicants should have a new septic system approval.
16) Proposed manufacturing component of the business will be conducted in the 600 square foot barn on the property. There is no plumbing in the barn and no adequate restroom facilities for employees, customers, students or others visiting for demonstrations, events, shopping or any other purpose.
17) MLS listing indicates the house at 14 Main Street had four bedrooms, and a 1,000 gallon septic tank for the existing residential use. Appears the existing system is not adequate for mixed use of residential and commercial and would likely require an upgraded septic system.
18) Applicants' have not demonstrated that the water supply and sewage systems are sized to adequately meet the needs of the proposed use under the regulations of the NH Water Supply and Pollution Control Commission.
19) The proposed use involves the manufacture of hot molten pewter, and the operation of a 140 lb. casting furnace. There is not water in the barn that might be used to extinguish small fires resulting from molten pewter or the operation of the furnace for the proposed use.
20) The proposed use does not comply with the requirements of the American's with Disabilities Act. Hanna added there is no handicapped access to the public area or foot access to the barn. The grade for which cannot be more than 2%. There has been no evidence to show they would meet ADA requirements.
21) No facilities are being provided to make the front room of the house handicap accessible for the proposed use. Or for the 600 square foot barn for employees, customers and other visitors.
22) Article 15.5.7 requires a finding by the Board that "the proposed use is consistent with the purpose and intent of the Zoning Ordinance and the Hancock Master Plan, after having given due consideration to recommendations, if any, received form the Planning Board". No recommendations have been received from the Planning Board and the use is not consistent with the purposes of the Zoning Ordinance and the Master Plan. Hanna said under 15.5.1 in the criteria, there is no evidence showing the use is similar to any use in the area. He said this use is a combination of retail sale and manufacturing. They have not provided this is a similar use to any in the area.
23) The Applicants' proposed use of manufacturing pewter and pewter products and the sale of pewter products and decorative accessories is not an accessory use to a residence under NH law. It would constitute a second principal use of the lot.
24) Article 3.7 of the Ordinance requires that "All development of tracts of land for non-residential or multi-family purposes or for a change or expansion of said uses shall be subject to the additional requirements contained in the Town of Hancock Site Plan Review Regulations.
25) The proposed development of the 14 Main Street site does not comply with the Site Plan Review Regulations of the Town of Hancock.
26) 14 Main Street is located in the "Village Center" as described in Section 2.6 of the Master Plan. Section 1.2 of the Master Plan, which describes the "Purpose, Goals and Objectives" of the Master Plan, indicates – a strong desire on the part of the citizens that the town should strive to maintain its current characteristics of a rural New England town by protecting and preserving the village center and the approaches to it from the encroachment of business and commerce.
27) Section 5 of the Master Plan which addresses, "Business, Commerce and Industry" states that it is apparent that the present village center has substantially no capacity for accommodation of business establishments without causing a definite change in the general character of the area.
28) The proposed establishment of a business in the village center at 14 Main Street is contrary to the purposes and intent of the Ordinance and the Master Plan.
Hanna said under 15.5.1, besides being inappropriate location, the ordinance is very clear that the accessory use has to be incidental and subordinate to the residential use. The accessory use has to be minor. He added the Board may think it has the discretion to feel that the 600 feet square footage of the area in use is minor in comparison to the house, but they need to look at the 10 – 25 increase in vehicles per day which is significant of an increase in use. They have not provided evidence that the use is associated with the home use.
In summary, the Supplemental Memorandum of Law stated, "the proposed businesses are not an accessory use, are not an appropriate location, and do not otherwise satisfy the special exception criteria and the application must be denied.
At this point, Alison thanked Attorney Hanna for his testimony and asked the applicant, Jon Gibson, to come forward to give his testimony. Hanna objected to Gibson's sitting with the Board at the table as he had done at the first hearing stating it had been hard to hear his testimony. Alison asked that Dan Beers switch seats so that Jon would be facing the public as he gave his testimony. Alison suggested and Attorney Hanna agreed to bring his chair forward so he would be able to hear Mr. Gibson.
Jon provided the Board and Attorney Hanna with copies of Exhibit- a list of Art/Craft related businesses in Hancock, Exhibit B – Additional testimony regarding 15.5.1 and 15.6.9.1, Exhibit C – NH DOT Traffic Statistics and Exhibit D - a letter from Douglas P. Whitney, of Whitney Associates, Residential and Commercial Real Estate Appraisals.
Regarding the list of Art/Craft related businesses in Hancock, Jon said his business is this type of art/craft business that exists in town. He said the ordinance encourages people to live and work at home.
Jon said regarding Exhibit C – much has been made of the fact that his existing business in Hillsborough is off the beaten track with an average of 260 cars per day vs. 4,200 per day at the 14 Main Street site. He said Gibson Pewter has (2) 8 foot advertising signs on US Rt. 202/NH 9. NH DOT traffic statistics show the combined daily trips per day, for both directions were 14,500 in 2009. Main Street NH 123 and 137 is 4,200 trips per day according to 2009 NH DOT statistics. He said he maintains that business traffic at 14 Main Street, Hancock will not be excessive, they will have 2 or 3 customers per day. Jon said regarding the issue of employees, he said the ordinance does allow for 3. He added that's not set in stone, but if he does have employees, they could park in public parking sports which has plenty of space. But he does not have any employees at present.
Regarding facilities, Jon said he does not offer them to customers. They have had to use public facilities and he has never had an issue with it. Jon said regarding the annual pewter run, it was located across the street and he is a supporter, but he doesn't run the event. Jon said there is no running water in his shop. He said he can assure you that you wouldn't put water on molten metal. He said he has fire extinguishers located every 16 feet in the case of a fire which he has never had. Concerning the septic system, Jon said the only use would be for the family and there is no fountain in the barn.
Jon addressed the ADA issues raised by stating he does have options. He said he can offer alternatives on the website; he could also ship to those customers. He said he could also offer curbside service. Jon noted those rules don't go into effect until March of 2012.
Regarding parking, Jon said he disagrees that there are 6 spaces available. He said he could park behind in the driveway and there would still be plenty of room. He said he doesn't believe there will be excessive traffic.
At this point, Alison asked the Board if they had any questions for the applicant. There being none, she opened the meeting to those who were in support of granting the special exception. She asked the public to please not speak when someone else has the floor and to give their name when speaking for recording in the minutes.
Mary Covington asked if the comments made had to be related to the conditions of the ordinance.
Alison answered by stating that they wouldn't restrict any comments but they will deliberate on comments made on the relevant conditions as part of the record.
Andy Peterson, the realtor for the seller, said he appreciates the specific nature of the questions posed by Attorney Hanna and the responses by Jon Gibson. He said it's a difference of opinion on how you view this case. He said it's the legal right of the abutters to come forward and he respects how wonderfully represented they have been by Attorney Hanna. But he added, he believes this is a case of a very nice family operated business in which they have made their livelihood and the use fits in with the language developed for the Master Plan. Andy said it was a quintessential home based business because it's an allowed use and does not come under the criteria for commercial use. He said Gibson is a nationally recognized craftsman who has items in the Smithsonian. Andy said it would be an extraordinary benefit to Hancock and add vitality and value to the life of Main Street. He said he has been in the real estate business since 1979 and has never known of a case of this type where surrounding property values had devalued. He said some people may have felt that way before a business came in but after believed it to have a positive effect on their property. Andy asked the Board to consider these issues as well and said this proposal is in accordance with a home based business.
Rita Klug – Rita began by stating she lives at 8 Main Street, right next door to 14 Main Street. She said she has no issues at all from the hearing. She said it seems the full gambit of issues has been covered and she welcomes Jon and his business to town and feels it's a perfect match.
Steve Fillebrown – Steve said he had been on the Planning Board when the Master Plan was written. He said this was the sort of business they were anticipating. He said he was a craft person too, using a lathe and power tools and he feels you wouldn't even know that Jon was working. Steve added that a lawnmower makes more noise.
Mary Garland – Mary said she has been in town since 1956 and remembers when that whole end of town had businesses such as the Quinn's selling ice cream along with their wonderful farm stand, Joan Watson's garden shop, Design Furniture and the Manning's business. She said they added to the life and spirit of things going in town as opposed to it being a historical monument. Mary added that she could see where people might feel the business to be intrusive and so had gone to check out the business. She said she found it to be a very appropriate and tasteful operation.
Jarvis Coffin – Jarvis said he had been in town for 14 years. He said there are not many houses on Main Street that you don't have to back out of the driveway. He noted an area on Rt. 123 South where he has seen a dozen cars parked. Jarvis said he and his wife have been to Hillsborough to the shop and said his wife's vacuum cleaner makes more noise than what he had heard there.
Tim Lord – Tim said in reference to Article 15.6.9 and 15.5.3 General Conditions, as a home owner on Main Street, his conclusion is that the business will have a positive effect on his property and to other property owners. He said it's good for tourism and will help vitalize Main Street and the effect on property values will be positive.
Peg McLeod – Peg commented that she had had a customer at her orchard who had asked what is Hancock doing to the Gibson's? The customer said they couldn't be a nicer couple who are known country wide and would be a tremendous asset to Hancock. Peg said she felt that not approving the application would be a great loss to the Gibson's and to the lifeblood of Hancock.
Seeing no others who wished to speak in support of the application, Alison opened the meeting to those who wished to speak in opposition.
Ann Peirce – Ann began by stating she lived at 6 Main Street. She said she was a longtime NH resident and native having been raised in Jaffrey. She will be living full time in NH soon and is looking forward to that time. Ann said living in Jaffrey she saw a slippery slope when the ZBA failed to uphold the ordinance and allowed manufacturing in which changed the dynamic of a residential area. She said she accepts that the business is nationally known, but this is not a small home based business. She said when they bought the property; they thought they could trust the ZBA and that it wouldn't be like Jaffrey. But she doesn't know now. Is it going to turn out to be like Jaffrey?
Mike Fallon – Mike said regarding property values, in his considered opinion of 40 years in the financial business, that the introduction of a commercial business will have a negative impact on property values. He said issues such as this are understandably laced with a high degree of passion, both for and against. And passion can often lead to exaggeration and deviation from the primary issues. Mike said all of us here would like to welcome Jon Gibson and his family to town, but under the circumstances can't because Mr. Gibson proposes to move his family and established manufacturing and retail business with him. He said he is guided by the will of the town as defined in our mission statement and zoning ordinance where commercial activity is permitted and where it is not. Permitting Mr. Gibson's proposed uses at this home would not only be inappropriate in this instance, but would serve to establish a dangerous precedent for further encroachment of retail and commercial activities throughout the Historic District. Mike said they only hope to keep the small core of retail area surrounded by and enhanced by private residences. He said there is a fine, delicate balance between the two areas and one which requires constant vigilance. There should be no introduction of commercial or retail in the Historic District except in the established commercial zone.
Attorney Hanna at this point, read from the Master Plan which stated the intent was to, "protect and preserve the village center and the approaches to it from encroachment of business and commerce" and from the Village Commercial District article he read the goal was to, "protect the predominantly residential character of Main Street and to provide a clearer demarcation between areas designated for commercial use and those designated as residential".
Attorney Hanna asked if this business included the sale of decorative fabric art. Linda Renna said yes, that was included in the application. Alison said in looking at the application for clarification, the business was stated as Gibson Pewter, antique pewter and decorative fiber accessories made by Camille B. Gibson.
Jon Gibson said yes they would be selling pewter items as well as fabric art.
Attorney Hanna said people are more likely to go to a nationally recognized craftsman that has been mentioned in the Yankee Magazine Travel Guide. Hanna said with events that Gibson has sponsored such as the Xmas in the Center and the Pewter Collector Club, and the motor cycle event, it would attract more business activity. Hanna said in the report from Douglas Whitney, he failed to mention commercial activity. He added with 4,000 vehicles passing through per day, it was not credible for the applicant to say there would be 2 or 3 customers a day. Hanna also said that it was not the choice of the applicant to offer handicapped access. If he is open to the public, he needs to provide evidence on how he would provide that access.
Lois Sponsler read a statement in opposition of the business. She stated as a resident of Hancock for 14 years, she not against the business, but was against it in this area. She mentioned the commercial areas of Keene and Milford and would not want to see that happen in Hancock. Lois said if there were businesses on Main Street in the past, people had to good sense to turn them back into homes. She said this was a bad trend and they were trying to save the town from its fate. She urged the Board to have a long and careful deliberation on the long term ramifications on the town.
Hanna implored the Board to read what has been submitted.
Alison read a letter in opposition from James Hrdlicka who was not able to attend. He expressed concerns with inadequate parking, backing out onto Main Street, safety of pedestrians, risk of traffic accidents and preserving the rural character of the east side of Main Street. He suggested they consider picking another location in Hancock.
Georgiann Fallon – Georgiann began by stating she wasn't a long time resident but in the time she has been here, she has worked very hard on the Woman's Club, the Historic Commission, and opened her home for tours. She has always said yes and she did it because of her love of the town. But this business is above and beyond a home based business. She said she implores the Board to leave Main Street the way it is.
At this time there being no speakers in opposition, Alison asked Jon is he would like to speak to any of the testimony given in opposition.
Jon said he wished to do so. He said he and his wife enjoy a good reputation and their business doesn't translate into excess traffic and money. He said they are not going to generate a lot of excessive traffic. Jon said in the 46 years of business, people have come to shop to see finely crafted wares such as a 300 year old pewter piece and to see how the products were made. Jon said people would probably be inspired to walk down to the business vs. driving down which would help in creating a walk able Main Street. Jon said Mike Fallon was quoting language from the Village Commercial District and he's applying for a home based business. The business is not manufacturing and will not be devastating to the town. It will be their home and that will be the primary use. Jon said if the focus is on reality, he has heard from a number of people in support who have come to see his shop to see what his business is all about. He said he hasn't had anyone in opposition make a visit to the shop.
Alison asked the Board if they had any comments or questions of the audience. Hearing no further comments or questions from the public, or no questions or comments from the Board, Alison closed the public portion of the hearing and said the Board would move into their deliberation phase. She said the public is welcome to stay but they will not accept comments or be interrupted by public comments while in their deliberation.
Linda Renna commented that the Supplemental Memorandum of Law that had been submitted by Attorney Hanna today was a huge packet but the bulk of it did not pertain to the meeting tonight and included much of the material that had been submitted at the first hearing. She asked if the Board could take ten minutes to review the material which they decided they would do.
The Board then spent time reading Hanna's Memorandum of Law document. Alison then made reference to the Planning Board minutes of 6/15 which noted Gibson had been in for a preliminary discussion regarding his Home Based Business. Hanna objected and the Board agreed that this was new material so reopened the public hearing to make note of the PB minutes. Hanna again objected to the reading of the minutes of the Planning Board and the Board relented and withdrew its reading of the minutes.
Alison reclosed the public meeting. She said historically the Board would review the conditions, bearing in mind the testimony given in the past application. She said they would consider testimony given of both those in support and those in opposition and they would reflect on everything heard and give it due deliberation. Alison said by law all of the criteria have to be met in order for the application to be granted and if they were met, under the ordinance they had to grant the application. The Board began its deliberation.
Alison said if one thinks about uses in the district, it's a residential use and the primary use is the residence. The accessory use is the home based business. She questioned if the use was similar to one already authorized.
Linda Renna said many of the criteria are subjective by nature, vague and not totally objective. She said in her mind the General Conditions help make sense of the Home Based Business criteria. Linda said the criteria had been drafted by the Planning Board who thought it would be protective of the town. She said reasonable people can disagree and the Board has to decide if it's a reasonable use.
Linda made reference to Article 3.13 Working at Home – Hancock has a long tradition of people working in or near their homes and wishes to encourage this practice which: 1) Generates economic activity necessary for the support of the community; 2) Avoids congestion and the social costs inherent in traveling to and from a remote workplace and 3) Enhances the safety and stability of the community by maintaining a workday presence.
Linda said that is the preamble to Home Occupations and Home Based Businesses. She said the community has valued home based businesses and home occupations. Linda said the details come out in 15.6.9 and under 15.5 General Conditions. Linda said the general conditions help her make sense of the criteria for the Home Based Business and suggested they begin by reviewing the criteria under 15.6.9. The consensus of the Board was to review the criteria under 15.6.9. first.
Jeff Reder said he doesn't think they can look at this point without looking back historically. He said there were many prior businesses on Main Street but presently there is nothing to compare it to.
Hunt said that's important but we have to look at the law. It's about the residential district and the critical words are customary to residential use. He questioned if an artisan shop as a home based business is customarily incidental to the residential use. Jeff said the consensus then and now is that it is an incidental use to the residential use. He said the primary use is living in the house with his family.
Ken Chester questioned if you would base it on the square footage involved the business.
Hunt said the regulations don't speak to that. However, he said the Board had previously discussed square footage and more of the area was to be used for the residence than used for the shop or barn.
Jeff said he thought the Board has the latitude to make that judgment.
Hunt said in the district within a short distance there are people with home occupations and home based businesses. He said it would not be unusual to have a nonresidential use in that spot. But they have to go back to the regulations and it appears this use is incidental to the primary use.
The Board decided to go through each of the conditions and give consideration to each and the testimony that had been given.
15.6.9.1) The proposed Home-Based Business is of a type which is customarily incidental to the principal use of a Lot for residential purposes: Alison asked the Board if they were comfortable with the customarily incidental use of the property as a home based business. They said they were clear regarding this and thought there was no question that this criteria had been met.
15.6.9.2) The proposed Home-Based Business shall be owned and operated strictly by the owner or owners of the principal Dwelling on the Lot which shall be the principal and ordinary Dwelling of said owner or owners. Should the owner or owners move his/her/their residence, the owner or owners must obtain a new Special Exception or discontinue the Home-Based Business within three (3) months. The Board determined that this condition was met by clear and sufficient testimony.
15.6.9.3) There shall be no changes to the exterior appearance of the buildings which alter the character of the Dwelling unit or Accessory Structure unless specifically approved or required by the Zoning Board of Adjustment. Testimony has shown there will be no changes to the exterior, plus it's in the Historic District where permission would be required for any changes to the exterior of the building.
15.6.9.4) The proposed Home-Based Business shall normally be operated on or from the Lot of the resident's Dwelling unit, but the ZBA may expressly approve the use of an abutting Lot owned by the resident for this purpose. The Board felt this criteria doesn't apply. The Board determined that this condition was met by clear and sufficient testimony, showing the business will be run from the lot of the resident's dwelling.
15.6.9.5) The proposed Home-Based Business shall be operated in or from the owner's Dwelling and existing or new accessory buildings, or such new Structures as may be expressly approved by the ZBA. New Structures constructed for use by the business shall not exceed two stories, and their height, area, design, and appearance shall not alter the character of the neighborhood. In the Residential District, the height of new Structures shall not exceed that of the residence by a significant amount, and the footprint of the building shall be compatible in scale to the residence. Trailers may not be used for storage or as accessory Structures other than a mobile home used as the primary residence. The Board determined from testimony presented that there will be no new building or structure. Height or the footprint was also not relevant and there was testimony which stated there would not be a trailer.
15.6.9.6) In the Residential District, no more than three (3) non-resident persons employed in a Home-Based Business may be on-site at one time. In the Rural and Agricultural District, no more than 6 (six) non-resident persons employed in a Home-Based Business may be on-site at one time. The Board determined they have had testimony showing the applicant is aware he could have no more than 3 employees or students for the business.
15.6.9.7) The use shall not result in excessive increases in traffic. No business traffic or heavy equipment activity shall occur before 6:00 a.m. or after 6:00 p.m. except for situations when trucks are used for snow or ice removal. The ZBA may further limit the hours or days of operation to such an extent as it deems necessary to prevent adverse effects on the surrounding properties: The Board determined excessive increases in traffic had come up over and over in this process. Jeff said Attorney Hanna had mentioned some events that had taken place in Hillsborough that were the kind of things that could generate traffic. But they could generate foot traffic here. Hunt said one of the events referred to was done in the center of town, not at the shop.
Linda said the town has had artist shows and other events such as the kitchen tour that puts a stress on traffic for a very limited time.
Hunt said the applicant's testimony states that he doesn't run a business that generates excessive traffic. Also, if any conditions become an issue, the use would become void under 15.6.9.12. There is redress if traffic became a problem. The hours of operation have been given in testimony provided.
15.6.9.8) One truck up to 20,000 lb. GVW, which is used in the business, may be parked on the premises. More than one truck or larger trucks and other equipment may be permitted only if the ZBA finds that they shall not violate any of the conditions for the proposed use. Gibson Pewter does not own a truck at this time. Testimony has been given that there will not be a truck used in the business. Testimony showed there will be a FedEx or UPS truck from time to time, but this criteria is speaking about the owner's truck which they do not have.
15.6.9.9) Outdoor storage of good, materials, or equipment shall be screened from roads and surrounding properties by natural or structural means or a combination of both to such an extent and in such manner as may be required and approved by the ZBA. Testimony has shown here will be no outside storage of equipment or goods. If this is not complied with, they have 15.6.9.12 for redress which the Select Board would have to deal with.
15.6.9.10) There shall be no window displays or other additions or changes made to the property which are normally associated with business or commercial use. Testimony has shown there will be no window displays or changes made to the property which are normally associated with business or commercial use. Again, the Board referred to 15.6.9.12 for redress.
15.6.911) Signs shall be permitted for a Home-Based Business provided they comply with other applicable sign requirements, except that they may not be illuminated and may not exceed an area of 3 square feet per side. Testimony has shown there would be a professionally made sign not exceeding three square feet and it will not be illuminated.
15.6.9.12) The Special Exception shall become void if any significant changes in the business occur, if any conditions of approval of the use are violated, or when the business ceases operation. If the business is proposed to continue following sale or transfer of the property where the business is located, a new application for Special Exception must be approved before continuation of the business use. The Board determined this condition is used if something develops that varies from the testimony provided regarding any of the criteria.
The Board moved on to discuss the general conditions under 15.5.
1) The proposed use is similar to one or more of the uses already authorized in the District. Alison said the town has had other types of business prior to this in the past. Ken said the town hasn't had the opportunity for this type of business. Linda said testimony shows the use wouldn't change the character of the house or have outside displays or have trucks to draw attention to it. Hunt referred back to 3.13 that shows that the town encourages people to have this type of business. He added that except for the sign, you wouldn't know it was a business.
Hunt said it's similar to other uses in the area and the fact is that the zoning regulations allow for a home based business in the residential district if you can satisfy 15.6.9. He mentioned other uses that are authorized in the residential district such as accessory dwelling, day care, and bed and breakfasts. Hunt added that he feels like the intent of the ordinance is to allow home based businesses in the residential district if all of the criteria are met. 2) The specific site is an approved location for the proposed use. Linda said there has been a lot of testimony on the proposed location. She said if the use meets the criteria, she doesn't see how they could say it's not a reasonable location. Hunt said they could think about limiting parking which has been discussed a great length. Alison said it's a residential lot and there has been testimony regarding it being a non-conforming lot, but there is nothing in the criteria about a non-conforming lot.
3) The proposed use would not adversely affect property values of neighboring properties: Jeff said they need to think about what Attorney Hanna had said how the use would adversely affect his clients. Hunt said testimony showed it's a quiet business. Linda said people's opinions vary. The opinions of the abutters vary and the opinions expressed in the two appraisals vary. She said this seemed to be subjective. Linda added in looking at the reverse, on what basis would the Board deny the application. She said that professional opinions differ and the impact will be less than what the ordinance allows for. For example, they are allowed a large truck but have only one car which is less of an impact.
Alison said they have the two appraisals and other testimony regarding the effect on property values, but she would think property values have been more impacted by the economy in the past years. Linking the threat of lower property values to one event is unreasonable and she feels it's difficult to lay everything regarding property values to one element.
Linda said it's hard to prove a negative and there are expert opinions for both sides. Hunt said they have to come up with a reasonable analysis and use common sense for the effect on property values.
Linda said the Board has received two opinions regarding property values. They have one statement that states property values would be affected negatively and one that counters that opinion. She said in her opinion there is more likelihood of increased values rather than a decrease.
Jeff said with the professional opinions on both sides and with the different opinions of abutters, he thinks they should use common sense to make a judgment. Hunt said he agrees.
4) The proposed use and the associated plans for parking, access and egress would not create a nuisance or serious hazard to pedestrian or vehicular traffic or excessive traffic congestion nor create excessive wear and tear on public streets. Alison said testimony showed from the application that there won't be many coming and going. Attorney Hanna said it would increase traffic. Hunt said what if the Gibson's had 4 teenaged boys coming and going. Linda said they still have 15.6.9.12 as back up if they aren't in compliance. Hunt said testimony has shown there to be 8 parking spaces. He said they could limit the number of cars with a condition. He suggested they could say there will be no more than 4 customer cars and there shall be no employee or apprentice parking on site.
5) The proposed use, following installation of visual and noise screening measure by natural or structural means to the extent and in the manner as may be specifically determined by the Board, would not create a nuisance to neighboring properties by reason of noise, odors, fumes, smoke, dust, vibrations, light, sound, or electromagnetic or communications interference or the storage or dissemination of hazardous materials or otherwise be injurious, obnoxious or offensive: Alison said previous testimony showed it's a quiet business and people who have been to the shop were in agreement. There is also 15.6.9.12 as recourse for non-compliance of this criteria.
6) Adequate and appropriate facilities will be provided for the proper operation of the use, including (where applicable) facilities for potable water and disposal of waste: Alison said there is town water for the residence, not a well. Regarding the septic system, Linda Coughlan, who is also the Health Officer, said what they would be looking at would be if the applicant were to add another bedroom. It's currently an operating system and seemed adequate. But if they were to add a bedroom, they would need to get a new septic plan design. Alison said testimony shows the residence appears to meet residential requirements.
7) The proposed use is consistent with the purposes and intent of the Zoning Ordinance and the Hancock Master Plan, after having given due consideration to recommendations if any, received from the Planning Board; and Hunt said they need to bear in mind the accessory use to residential property. He referred to 3:13 and working at home. He said testimony has shown that working at home was part of the Master Plan's intent. If it is defined as a home based business in this district, it's allowable if the criteria are met. The intent of the Master Plan is to allow home occupations and home based businesses.
8) The proposed use falls within and meets all of the conditions of a Special Exception hereinafter listed. This was already discussed under the Article 15.6.9.
Linda said in going back she feels more comfortable that the specific site won't adversely affect property values. She said she is cognizant of the concerns of people who are worried this will be going down a slippery slope. She added that if the townÔs people don't want this to allow this use they need to go through the proper channels and change the zoning ordinance. She said in good conscience she could not say it's not an allowable use and doesn't know on what basis it would be denied.
Alison asked if the Board wished to deliberate on any other items. The consensus was that they didn't. Alison asked if the Board had a sense of the need to vote on each of the criteria for 15.6.9 and for 15.5 General Conditions. They decided to vote on each of the criteria. Criteria under 15.6.9– 1) OK 2) OK 3) OK 4) OK 5) OK 6) OK 7) OK 8) OK 9) OK 10) OK 11) OK 12) OK Criteria under 15.5 General Conditions– 1)OK 2)OK 3)OK 4)OK with conditions set 5)OK – much testimony given 6)OK – much testimony given 7)OK – much testimony given 8)OK- much testimony given 9) statement Alison moved that the application for a Special Exception under Article 15.6.9 for a Home Based Business be granted given that the applicant has met all of the criteria under Article 15.6.9 and all of the conditions under Article 15.5 Special Exceptions – General Conditions as shown by the plan and testimony provided.
Hunt seconded the motion and added two conditions 1) that parking will be limited to 4 customer vehicles and 2) there will be no employee or apprentice parking on site.
The Board voted on the motion and the vote was unanimous to grant the Special Exception with the two conditions.
Alison said the deliberative session was now ended and the Board would remain to approve the minutes of August 24th and October 12th. The minutes of August 24th were approved with corrections and the minutes of October 12th were approved as written.
There being no further business, the meeting adjourned at 7:30 P.M. Respectfully submitted,
Linda Coughlan
Recording Secretary
November 1st, 2011
August 24th minutes corrections made: Page 7, paragraph 7 starts out as Gibson, should be Hanna Page 10, paragraph 4 should read, "shop here will be approximately 600 square feet" Page 14, criteria 15.6.9.7, should read as per application, "shop hours normally 9 am – 5 pm (did not state which days)
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