TOWN OF SUTTON
ZONING BOARD OF ADJUSTMENT
Meeting Minutes
May 28, 2008
The meeting was called to order at 7:00 p.m. by Bill Hallahan, Chair. Members present were Doug Sweet, Dane Headley, Derek Lick and William Turner. Ed Canane arrived at 7:11p.m.
The meeting minutes from March 19, 2008 with changes from Derek Lick and Doug Sweet as well as the April 16, 2008 meeting minutes were approved as written. Doug Sweet asked for clarification of the Fritz Pratt private burial ground. There will be 4 granite posts, 1 for each corner, not a continuous line of granite going around the 40’x40’ plot.
Update on the James P. Ward hearing. It is scheduled for July 16, 2008. Land Use Coordinator to check with Mr. Ward to see if he will reschedule to July 23, 2008 as she will be unavailable to take minutes. Derek Lick will need to recuse himself due to a conflict of interest but will attend if another hearing is scheduled for that evening and he is needed. Bill Hallahan, Chair, will be talking to the Town Administrator regarding John Drusendahl, who was previously on the Board for a short period of time, becoming an Alternate and replacing Kevin Carr, who has been difficult to get to attend meetings. Chairman Hallahan asked if anyone on the Board knew of anyone else who would be interested and Derek Lick recommended Danielle Thomas (Angelli) from East Sutton. Chairman Hallahan will look
into.
Bill Hallahan, Chair recused himself from the hearing for a Special Exception to Article IV, Section A:3, Case #2008-04, Map #7, Lot #904,365 in a Residential District for Adam Bronstein to operate an Acoustic Guitar Shop in a vacant room over his garage due to his daughter, Laura Hallahan being an abutter. Derek Lick was asked and agreed to be the Acting Chair for this hearing.
Documentation from Darrel Palmer, Fire Chief of the Sutton Fire Department and the Appurtenance Form were admitted into the applicants file. Acting Chair, Derek Lick asked whether the applicant’s request actually requires a “use variance” rather than a “special exception.” Derek Lick asked where the reference to Article IV, Section A:3 in the application originated from. It was explained that Bill Hallahan reviews all the applications and determines if it is a special exception, usage variance or area variance and what article they are referenced to.
Board members were asked to read Article IV, Section A:3 and to consider whether the applicant’s proposed use as an acoustic guitar shop would meet the definition of a customary home occupation under this Article. If so, Mr. Lick suggested that neither a special exception nor a use variance would be necessary. Rather, customary home occupations are permitted as a matter of right in the residential district provided the pertinent conditions of Article IV, Section A:3 are met.
Ed Canane took the position that it is not a customary home business due to not being explicitly described. Additionally, Ed Canane stated that none of the home occupation examples listed in the Article, such as the practice of medicine, insurance or real estate, workshops or studio of an interior decorator, etc., relates to a retail operation regarding musical instruments. Therefore, Mr. Canane would not consider the applicant’s use to be a home occupation as defined by the ordinance.
Doug Sweet expressed that he was undecided as selling guitars was not a customary use and is not included in the list according to the Town of Sutton’s ordinances.
Derek Lick was unsure whether the applicant would be building or producing guitars, which he thought to be arguably a craft or artistic endeavor, or merely selling them as built by others.
Mr. Bronstein explained that this business would not be his primary income. He works for the NH Geological Survey. He previously worked with the Society for the Protection of New Hampshire Forests where he worked with Dan Sundquist, Chairman of the Town of Sutton’s Planning Board. He would be open on alternate weekends, maybe have a friend fill in, and by appointment during the week. He would be selling high-end acoustic guitars and instruments. Most of the sales would be done on-line. He would also like to give lessons in the future. He expressed that he did not feel this would be a detriment to the town and saw it fitting into the landscape. He would be “setting up the guitars” which would be tuning, any changes that may be needed and/or possible
refinishing of antique guitars. In the future he would like to do repairs and service work on guitars. Derek Lick asked about the percentage of first year income Mr. Bronstein expected to receive from the sale of guitars versus Mr. Bronstein’s service of guitars. Mr. Bronstein felt that 90% of his income would derive from resale and 20% from hands on service with a little percentage to grow over time for lessons, etc.
Mr. Hallahan, who provided comments as a member of the public, expressed that he felt that the Special Exception was valid, reasonable and fair for this application. He also felt that if this application was submitted under a variance that the hardship category would not be reasonable and fair and wondered how the Board would be able to approve that type of application.
Ed Canane felt that the Board needs to do the right thing. What is the right thing to do when the definition of the customary home business or industry is not mentioned, but then he would not expect guitars or banjos or flutes to be a customary home occupation? They are of the same generic grouping. What he sees in the description is clearly nothing that is retail. Purveying of goods not services but goods then he would feel more comfortable as a possible customary occupation. As far as the “hardship”, he feels and believes in what is fair and what is right. He looks at hardship in every variance that is received by the Zoning Board of Adjustment, and feels it is dealt with on a case by case basis because it is almost impossible to come across favorably in almost every single
case.
Bill Turner asked about the recent approval of a “pottery business” that the Land Use Coordinator referred to as being retail, but the owner makes the pottery so it falls under the “arts and crafts” definition.
Dane Headley felt that the pottery business fell under the arts and crafts definition. He also agreed with Ed Canane that there must be a reason why retail is not mentioned in Article IV, Section A:3. He felt it was a long stretch to include a retail type of business use based on the definitions listed as it does not fall under any of the already listed uses. He felt that there may be more of a need for examination of a variance for retail. He does not know of any retail type use previously passed under a special exception.
Bill Hallahan asked if the Board has ever passed a retail under a special exception.
Dane Headley clarified that it was home occupation retail and did not think there were ever any passed.
Bill Hallahan asked about the boutique by Vernondale Store. This was not a home occupation.
Derek Lick stated that if the use was determined to be a home occupation it would be permitted under the ordinance. He also stated that he felt it was a perfectly reasonable request and the shop would not be detrimental to the neighborhood. What he is having difficulty with under the rules which bind the Zoning Board of Adjustment is that the use either has to be explicitly permitted or it has to go to a variance? As he sees it the Board does not have the authority to approve the applicant’s proposed use by special exception because the use is not one of the four uses specifically allowed by special exception under Article IV, Section B:1-4 of the ordinance. If this type of project has to get a variance under the ordinance then he wonders if a retail store would ever be allowed in the Town of
Sutton with the hurdle of the hardship attachment. He feels that the Board has been fair and equitable in applying the test, but still feels that this is a dilemma.
Dane Headley stated that the Board does not have the option to amend the ordinance, and if the Board opens up the ordinance for retail type use being a special exception then the Board may set precedent for future cases where the use may have a greater impact than the present application.
Mr. Bronstein stated that being a citizen of Sutton he is certainly concerned of the aesthetics of the Town as well. The case could potentially, if not handled properly, open the door for different types of business, but he sees his case as not a true retail store in the sense that he does have a day job. It would not be open 9-5 every day. He has no big parking lot beside his house, and he is not selling high end junk. This is artisan type stuff. He feels that it would truly add a value to the town, to the landscape and he would definitely like to see an amendment to this somewhere to help protect the landscape by limiting retail. If the case can be made whether value is added to what someone can bring as a retailer he would certainly encourage it as in his case or in someone
else’s case.
Bill Turner questioned that Mr. Bronstein’s case stated “by appointment only” and wanted to know if this had any affect on the way the Board interprets the application.
Derek Lick stated that it makes it more of an artist’s studio than a retail business because there will not be set hours. So if it is by appointment only, then technically the shop would be closed off to people unless they call for an appointment.
Doug Sweet is not convinced that the words in Section 3 preclude the idea of a retail selling product. He does not think, however, it should go under a special exception either. Ed Canane and Dane Headley agreed. Doug Sweet felt that several businesses that are listed under Section 3 do sell a product out of their establishment.
Dane Headley’s impression is as follows: dentistry is under the umbrella of professional, doctor, legal or medicine with the other is predicated as being artist that makes the product. He felt this application just does not fit in there.
Derek Lick reread the criteria in Article IV, Section 3 and stated that he felt that Mr. Bronstein’s shop was precisely the type of establishment they are talking about. His rational is that retail is not excluded; some of the listed examples could include the selling of items out of the home. To meet the definition of customary home occupation the use has to be clearly incidental and secondary to the residential purposes it must not involve modification of such dwelling such so as to alter its outward appearance; the number of persons employed in any such location shall be no more than two permanent onsite employees in addition to the owner; off street parking for employees, customers, clients shall be provided; and no offensive odor, noise vibration, dust or unsightliness, no exterior accumulation
display or storage of material or equipment except for a sign shall exist. It seemed to him that given these extensive conditions, home occupations could involve retail but they had to be on a very small scale and have very little impact on the neighborhood.
Dane Headley did not agree. He could not see that in the definition. To him the product they are talking about is specific and is more specific than general. If it is going to be a product that is being sold then it is going to have to be one that is made by an artist on site or it has to be a professional, i.e. lawyer, doctor or it has to be insurance or real estate. He also felt that scrutiny under the variance is going to prohibit the Board from treating the application fairly.
Derek Lick stated that whatever decision was ultimately reached by the Board, the decision would have to be based on the ordinance regardless of what impact that decision may have. He suggested a two-step vote:
Question 1: Does the Board believe from what they see in the application and what they have heard from Mr. Bronstein that his planned use for the property qualifies as a customary home occupation?
If the answer to that is yes the Board goes no further, as it is a permitted use. If the answer is no, the Board goes to a second question.
Question 2: Can the applicant’s proposed use be approved as permitted by special exception under Article IV, Section B?
If the answer is yes then the Board votes, and if the answer is no the applicant would have to come back and seek a variance for the use.
He
Derek Lick made a motion that the Board deem Mr. Bronstein’s business based on his application and what he presented in person as a customary home occupation and therefore, not requiring a special exception or a variance under the ordinance. So if you believe that it is a customary home occupation you would vote YES, and if you believe it is not a customary home occupation you would vote NO.
Roll Call taken by Land Use Coordinator. By a vote of 4 to 1 the Board voted that Mr. Bronstein’s proposed use was not a home occupation as defined by Article IV, Section A:3 of the ordinance with Derek Lick being the sole dissenting vote.
The next question the Board would have to ask is since it is not a customary home occupation under Article IV, A:3 under the ordinance is it possible to approve this with a special exception under Article IV, Section B.
Doug Sweet made a motion that the proposed use does not fall under Article IV, Section B:1-4, making the use ineligible for a special exception. Ed Canane seconded. Roll Call taken by Land Use Coordinator. The Board voted unanimously in favor of this motion.
Derek Lick explained to Mr. Bronstein that his application had been denied for a Special Exception under Article IV, Section A:3 and Article IV, Section B:1-4. What Mr. Bronstein needs to do from here is resubmit his application as a “Use Variance” to Article VI, Section A:1. Motion made and unanimous vote 5 to 0 that Mr. Bronstein would not be charged for the resubmission of his application. He was also given the Use Variance Worksheet to fill out. Hearing Closed at 8:15 p.m.
Bill Hallahan rejoined as Chair after the departure of Mr. Bronstein. He felt that the Board voted in error on this application and will seek Town Counsel input.
Board Members Questioned:
Who decides what category an application fits under?
When do the applications go out to the members?
Can Board members contact the Chair to discuss their concerns regarding an application
before the hearing?
When do members actually review the packets mailed to them.
Answers:
The Chairman reviews each application and decides what category it should be submitted
under.
Applications are mailed to the members as soon as the Chairman has reviewed and
approved them.
It was felt that “YES” a Board member may contact the Chairman if he is uncomfortable
with the category submission of an application.
Board members where asked to review and give feed-back to the Chairman
before a hearing so this type of hold up will not happen again. Board
members should come prepared with all paperwork, Zoning Ordinance
Book, etc. Land Use Coordinator will make sure that all worksheets from the
applicants will be forwarded to each member before their hearing for
review.
The Board felt that trying to update the Zoning Ordinances would be time consuming and difficult to get the Planning Board to approve any changes made. But it does need to be looked into.
Meeting adjourned at 9:00 p.m.
Respectfully submitted,
Linda D. Ford
Land Use Coordinator
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