BARRETOWN
ZONING BOARD OF ADJUSTMENT
MEETING OF FEBRUARY 15, 2006
The Chairperson, Paul Malone, called the BarreTown Board of Adjustment public hearing held at the MunicipalOfficeBuilding on Wednesday, February 15, 2006 to order at 7:03 p.m. The Zoning Administrator and interested parties were sworn in.
Board Members Present:
Paul Malone, Chair
Richard Jensen
Paul Badger – via teleconference
Board Members Absent:
Mark Reaves
Mike Gallo
Staff Members Present:
Chris Violette, Zoning Administrator
Others Present:
Gordon Bullard Steven Bullard
Douglas Bullard Phyllis Bullard
Bill Provencher Philip Provencher
Herbert Hunt Janet MacAuley
Michael Perreault Scott Perreault
Joseph Rivard
Board Secretary:
Heidi Bennett, Board Clerk
A. WARNED HEARINGS:
STAFF REPORT
REVIEW COMMENTS FROM CHRIS VIOLETTE, ZONING ADMINISTRATOR
Request by Philip Provencher for a conditional use permit to add 2 units to an already existing 3 unit multi-family dwelling on property located at 120 Richardson Road; Tax Map 008, lot 009.00; Zoned: RES C. (CUP-06000001)
Applicant: Philip Provencher
Date: February 9, 2006
Mr. Provencher is before the Zoning Board this month to essentially correct the record with regard to the fact he has a multi-family dwelling and may or may not have the proper permits. In any case, he clearly has one more unit than what zoning allows. The subject parcel is located in a residential C zone.
Article V, Section 4.2 states that multi-family dwellings in residential C zones are only allowed after issuance of a conditional use permit. Mr. Provencher apparently has an existing home that has five apartments (living units) in it. The house has existed in some form as a multi for quite some time but there seems to be some confusion over whether it has been a three unit or a four-unit apartment house. While the town is only assessing sewer charges for three units, tax records seem to indicate the existence of four units going back into the 70’s.
I think there is enough evidence to say this structure has existed as a four-unit multi-family dwelling long enough to not need review as a conditional use for units one through four. However, only three sewer units are being assessed and that should be adjusted. Mr. Provencher needs to take out another sewer permit to obtain allocation for the fourth living unit. Permit fee is $1,500.
Turning to the fifth living unit, that is a different story. There is no record of a fifth unit in that structure even as recent as the 2004 re-appraisal. The fifth unit only surfaced recently in conversations with the assessor. So, if Mr. Provencher wants a fifth unit, conditional use review is necessary. However, I need to point out that article V, section 4.2 h. under conditional use permits allows multi-family dwellings in the Res C. zones but only allows up to four living units. Mr. Provencher is one unit over the maximum allowed.
The parcel is 117 acres in size so minimum square footage of the lot is certainly not an issue. Access to the home is by way of Richardson Road and appears to be satisfactory. Water is municipal as well so that should not be an issue. The only issue, and it is significant is the fifth living unit.
The following are the criteria used when considering a conditional use permit.
The general standards include assurance that the proposed use will not adversely affect:
Specific standards include the following:
My recommendation based on zoning requirements is to not allow the fifth living unit. If it is there already, it needs to be removed. If however, the fifth unit is allowed to remain, then at a minimum Mr. Provencher needs to obtain a sewer unit for that apartment. This would mean two additional sewer units at $1,500 each would have to be obtained.
DISCUSSION:
Paul Malone – I just have a couple of questions for you (CV), do we have the authority to review this and is this an appealable event because it doesn’t comply with the ordinance of the Town?
Chris Violette – You have the authority to review this because Mr. Provencher has requested it. The question is whether or not because of what zoning restricts us too whether you should move forward.
Paul Malone – But if we know that it isn’t in the ordinance, should we be reviewing this? Will Judge Wright turn this over if someone appealed our decision?
Chris Violette – I think if it was appealed based on a denial, your denial would be that the conditional use isn’t allowed because zoning restricts you to four units. I think the Town has a better chance of being upheld if you follow the zoning ordinance which allows four units. I would find it hard to believe it is appealable the other way.
Paul Malone – Has Fire/Labor & Industry been involved with these apartments as far as meeting codes?
Chris Violette – The Town doesn’t require that, Mr. Provencher should be able to answer that. Obviously, I would strongly recommend that if they haven’t been involved, that they be involved.
Janet MacAuley – The Labor Industry has gone through the building, putting up fire doors and extinguishers.
Philip Provencher – She can speak regarding the property (Janet MacAuley).
Paul Malone – This 5 th unit that has been put in, it was put in pretty recently wasn’t it?
Janet MacAuley – It has been there for awhile, since before 2004.
Bill Provencher – it has been 5 units since we purchased the home.
Janet MacAuley – We’ve owned the home since 1965/66.
Paul Malone – Is it a possibility that the Assessor missed this in the count?
Chris Violette – This is the concern I have. If it was missed, it was missed in the 70’s, 80’s, and 90’s and again in 2004. I am skeptical to believe that they have missed it that many times. I think they did miss the 4 th one at some point in time. Our current Assessor is the Assessor that performed the reappraisal and he is confident that he did not miss the 5 th unit in 2004.
Bill Provencher – When the young woman came around with the Assessor, I showed her all the apartments.
Paul Malone – There have been no changes since 2004 (No)? When did the Fire Marshall came about when (5 years ago)? So if you had a copy of the Fire Marshall report that should clearly indicate the 5 th unit.
Janet MacAuley – We have receipts from tenants to show that we’ve had the units.
Chris Violette – I think two things would help, if they can produce the Fire Marshall report showing 5 units and show some sort of receipts showing 5, that would help. Even if it goes back 5 years then I think it makes sense that the Assessor missed one.
Paul Malone – I think we should continue this hearing until the meeting scheduled on February 22, 2006.
Paul Badger – How did the Assessor not pick this up?
Paul Malone – That is what we are trying to sort out.
MOTION & RECOMMENDATION:
On a motion Mr. Jensen, seconded by Mr. Badger, the Board voted to continue the request by Philip Provencher until February 22, 2006 for a conditional use permit to add 2 units to an already existing 3 unit multi-family dwelling on property located at 120 Richardson Road; Tax Map 008, lot 009.00; Zoned: RES C. (CUP-06000001)
CONDITIONS Yes___ No___
MOTION BY: JENSEN
SECOND BY: BADGER
ROLL CALL:
Paul Malone YES Mark Reaves ABSENT
Dick Jensen YES Mike Gallo ABSENT
Paul Badger YES
STAFF REPORT
REVIEW COMMENTS FROM CHRIS VIOLETTE, ZONING ADMINISTRATOR
Request by Scott Perreault (Hunt’s Tree Farm) for an amendment to expand business hours on a previously approved conditional use permit (June 19, 2002 as #B-02-05-11) on property located at 946 South Barre Road; Tax Map 021, lot 054.00; Zoned: RES A. (CUP-06000002)
Applicant: Scott Perreault
Date: February 10, 2006
This is a request for an amendment to a previously approved conditional use permit (CUP) obtained by Mr. Perreault in 2002 to operate a landscaping business. There has been a dispute among Mr. Perreault and neighbors as to whether restrictions placed on the original CUP have been followed and/or whether the restriction applied to certain aspects of the business. Regardless of what has been disputed, Mr. Perreault is before the Zoning Board this month to officially amend and expand aspects of this business.
In an undated letter (faxed received February 9, 2006) received from Mr. Perreault, he is requesting several things. It appears the first item he would like revise is that there be no restriction on when the Christmas season begins.
The hours permitted in the original CUP allows the landscaping business to operate Monday thru Friday, 8:00 AM to 5:00 PM. It allows expansion of those hours during the “Christmas Season” but does not provide guidance as to what those expanded hours should be. It does say that the Christmas Season is the day after Thanksgiving to Christmas Day. It appears the wording (in my opinion) has caused some ambiguity. The landscaping business hours and the tree farm business hours were tied together. Mr. Perreault maintains that the Christmas tree hours were not restricted, the day of the week and hours of operations restrictions only applied to the landscaping business. However, he would like to make it official and be allowed to run the Christmas tree part of the business pretty much anytime he wants to.
With regard to the landscaping part of this business, he suggests allowing him to operate seven days a weeks from 8 AM until 7 PM. He cites the need to stay ahead or at least on par with his competition as the need for these new hours.
Mr. Perreault is also seeking to alter the original CUP by allowing storage of his products were they can be seen from the road. The original CUP conditioned this from occurring.
This board did not take the original CUP lightly and in fact, the use in general was not taken likely by the town in general. There was considerable concern with regard to how this proposal would affect neighboring residential uses. At least two neighbors participated in the process and offered many concerns. In fact, the ability for Mr. Perreault to come in for a CUP to begin with took some time.
To begin with, what Mr. Perreault was proposing (the landscaping business) beyond the operation of a tree farm was not allowed in the zone this property is located (RES A & RES C). Mr. Perreault and Mr. Hunt (the owner of the tree farm at the time) came to the Planning Commission to seek a change in zoning that would allow commercial landscaping and nurseries in RES A & RES C zones. The Planning Commission approved as did the Selectboard but not without concern for how this type of use would affect surrounding residential uses. In the end, a lot of faith was put in to the conditional use process to ensure both the interest of the businessperson and the residence would be maintained.
So, what it comes down to is how the expansion of the hours and the alteration to the conditions as requested can be mitigated to ensure both sides are reasonably comfortable. Given some the history with this specific operation I am not sure that will be possible. It is up to us to weed through the rhetoric from both sides to see to it that a town business can operate profitably but at the same time give reasonableassuranceto the neighbors that they will not have substantial negative impacts.
I am not overly concerned about the Christmas tree part of the operation. Christmas tree sales are going to be controlled by the season. Mr. Perreault made and sold Christmas wreaths. He began to sell these before his expanded “Christmas Season” hours went into effect this past year. I do not see a problem with allowing the sale of the wreaths whenever they want. People will only want to buy that type of thing within a certain time period anyway. So, my suggestion is to not put any restrictions of the sale of Christmas related products.
The landscaping business is different though. Given the fact we do have residential concerns here and given the fact a zone change was requested and done as a result of certain understandings to help protect the rights of the neighboring uses, I think the board needs to look at this part of the request closely.
I understand Mr. Perreaults desire to be open until 7:00 PM. During the week, most people work until 4 or 5:00 PM, which makes it hard to get to this business before they close. However, I think the rights of the residential uses and their right to have a peaceful evening should not be overlooked.
Second, again understanding the need to be open when people are not working it is reasonable for a business like this to want weekend hours. However, again due to neighboring uses being residential I am not sure that allowing both Saturday and Sunday hours are reasonable. I would suggest allowing Saturday hours but not Sunday.
With regard to the storage of the product, I do not really have a problem with it being visible. Measure can and have been taken to mitigate that issue.
I am sure all parties here will not be happy with my recommendations, in Mr. Perreault’s case let us not forget he originally portrayed the use of his property for retail sales as a minor part of the business and while he is there, he might as well take advantage and try to sell some product. In the neighbor’s case, let us not forget this is a very mixed-use area and if not this use the property in question will be used for something and that too would likely meet with objection.
The board needs to be careful to keep conditions not altered here that were part of the original approval in with whatever is done here.
DISCUSSION:
Scott Perreault – As far as my letter goes, Chris summed it up. I would like to try and get something for the weekends. As far as selling plants to any customers around a majority of it comes on the weekends when everyone is out doing their work around their yard. Mr. Malone – What about the evening hours? Mr. Perreault – I would just like to catch some people driving home especially on a Thursday or Friday night, they can pick up their stuff to do their projects on the weekends. A lot of my customers that I do work off-site for like to stop by, but there isn’t anything for them to see without them having to walk up the hill; I’d like to have my product a little more visible for my customers. Mr. Malone – How visible? Mr. Perreault – A couple hundred feet off the road, near my buildings. People who drive by can’t see any products that they might be interested in.
Paul Badger – Is our original conditional use permit being reasonably adhered too?
Chris Violette – You will probably get different answers from everyone. I think reasonably Scott and I have talked over the years about different concerns; there was an issue of screening (a fence) that was damaged, Mr. Perreault paid for the material but not the labor; there was this issue of Christmas reefs back in November. I know the Bullards have numerous concerns, some are justified, some are not. Everything other then the couch is stuff a landowner would be entitled to do; no trespassing signs, parking of a vehicle and the car on the front yard, those are things I can’t do anything about. The complaints I have received about him working or walking on his property at one in the morning, there isn’t anything I can do about that, he has the right, he is the owner of that property.
Paul Badger – How many weekends would he like to be open later in the evening? Chris Violette – During the Christmas season, he is not restricted from hours. Mr. Perreault would like to have no restrictions on hours.
Gordon Bullard – (Mr. Bullard submitted in written form his testimony). Mr. Malone – Where is the mulch located now? Mr. Bullard – It was moved behind the building. Mr. Malone – is that an issue at this time? Mr. Bullard – It will be if he is allowed to move his product. Mr. Malone – I asked Mr. Perrault where the product will be sold, he stated about 200’ from the road, is that an accurate assessment on his part? Mr. Bullard – yes it is. Mr. Malone – so if the mulch stays near the building, that’s not a health issue for your parents? Phyllis Bullard – it has to be behind the building because when the wind blows the smell comes in my window. Mr. Malone – the wind is going to blow no matter where you put the mulch. Mr. Bullard – is suggesting a list of what Mr. Perreault should be allowed to sell. Douglas Bullard – he has lights that are always shining in my house, they are bright and come right into my room. They have been that way for a long time and I have never complained. They do bother us, sometimes the lights are on at 11 o’clock at night. I don’t know if it is a reason that they shine over my way, maybe it is a little bit of harassment. Mr. Jensen – Are they security lights? Mr. Perreault – They are just normal motion lights. Mr. Bullard – The parking lot was expanded 3 weeks after the original CUP was issued. Mr. Perrault parks his car just along the property line. Mr. Malone – you understand he can park his vehicle anywhere on his property that he chooses, except for in the town right-of-way. I’m sure we can reach a compromise on his parking. Mr. Bullard – I would like Mr. Perreault to stop harassing my parents. Parking there is just harassing my parents. I have talked to Mr. Perreault three times, to be neighborly; there is no other reason for this except for harassment. One day we woke up and found the no trespassing signs, Mr. Perreault’s reasoning is because the dog went on his property. Mrs. Bullard – We have lived there for about 45 years, Mr. Hunt had his tree farm there and never did we have a problem with Mr. Hunt. We’ve had nothing but trouble since Mr. Perreault bought this property. Mr. Bullard – I have a fear that if Mr. Perreault gets his wish and move his product up front, we are going to be staring at a pile of mulch.
Scott Perreault – The parking of the vehicle is necessary, it is getting my truck out of the way for my customers. Mr. Malone – Is it possible to move the truck up 4 – 5’? Mr. Perreault – That truck was there to make room for my customers.
Paul Malone – the lights can be easily addressed, changing the angle will solve the problem.
Phyllis Bullard – May I ask a question? Why is he over there after 12 o’clock at night with the lights on? Why are there cars there at night? Mr. Malone – if this was a residence it wouldn’t be an issue. Mrs. Bullard – I thought that this was sold as a tree farm, as far as I knew, but it isn’t a tree farm anymore. Mr. Malone – businesses evolve, we don’t want to stay in a stagnate society. Mr. Bullard – I don’t think we need to be here, the reason we are here is because of Mr. Perrault and his actions. He just continues to harass my parents. I just want Mr. Perrault to run his business and leave my parents alone.
Scott Perreault – I have never been addressed these concerns. Mr. Bullard – I have gone over and spoke to Mr. Perreault about the truck, I have given up on him. Mr. Malone – Here is the bottom line on the truck, he can park the truck there if wants but he is willing to compromise. Mr. Perreault is willing to work on the lights so they aren’t bothersome and he is willing to take care of the mulch.
Paul Malone – I don’t believe this Board is going to even look at Sunday. I believe the weekends in a residential area will need to be limited. I think people are entitled to their peace and quiet.
Richard Jensen – I think that in the landscaping business Saturday is relatively important, especially during the spring and fall time.
Paul Malone – would you be opposed to having a few flowers on the driveway? Mrs. Bullard – if he puts them on the other side.
Paul Badger – I don’t think there should be hours after 5 pm on the weekend. Mr. Jensen – I don’t agree.
Paul Malone – I think we need to revisit the original permit that was issued to make we are bringing this particular application in line with what was permitted and make sure there are no violations.
Michael Perreault – Can we go over the violations, obviously we don’t know what they are.
Chris Violette – (Read off list of conditions from previous CUP)
Michael Perreault – So other then selling the reefs early, that would be our only violation. We were selling early because of the early frost. Mr. Violette – This is why we need to get clarification.
Gordon Bullard – The violation is the parking lot, ask Mr. Hunt.
Herbert Hunt – As the Bullards have mentioned, I had mowed my parking lot. Mr. Malone – is the parking area that is currently being use drastically different or similar to what you had. Mr. Hunt – the area is the same, however they put some hard sand down there where the grass was. Mr. Perreault – we laid some crushed slate so people wouldn’t get stuck.
Chris Violette – In the documents we received, the question I have, which really isn’t a zoning issue but in here Mr. Bullard points out that Hunt’s Tree Farm hasn’t been registered, I’m not so sure this is a point for zoning; the other question I have which I’d like to direct at Mr. Bullard, if he has ever registered a name for anything. Mr. Bullard – Yes, I have. Mr. Violette – So you’ve been through the process because you pointed this out. Can I ask what names you registered? Mr. Bullard – I have registered Hunt’s Tree Farm and Hunt’s Christmas Trees in my own name. Mr. Violette – Do you have affiliation? Mr. Bullard – No I don’t. Mr. M. Perreault – Why would you do that? Mr. Bullard – just to see if the name was registered. Mr. Violette – According to the State, they have to register. Mr. Hunt – we never registered and we decided during the sale to let Scott use Hunt’s Tree Farm and I think he amended it to be Hunt’s Tree Farm & Nursery. Mr. Perreault – what does this have to do with changing my hours? Mr. Violette – I wanted to make you aware that you need to register and make you aware that you cannot use Hunt’s Christmas Trees. Mr. Malone – No. Mr. Violette – Yes. Mr. Bullard has registered Hunt’s Christmas Trees. Mr. Malone – Why did you do that? Mr. Bullard – Because I want Mr. Perreault to stop harassing my parents. I will give that name up. Mr. Violette – Hunt’s Tree Farm & Nursery was reserved on May 6, 2004 and expired 120 days later by Mr. Bullard. Hunt’s Tree Farm was reserved on May 4, 2004 and registered on May 10, 2004 and he ceased it himself on August 5, 2004. Hunt’s Tree Farm is now available.
Mr. Malone informed the applicant that the Board had 45 days in which they have to render a decision.
Motion by Mr. Badger, seconded by Mr. Jensen, the Board voted to close this hearing and move into Deliberative Session.
MOTION & RECOMMENDATION:
On a motion by Mr. Jensen, seconded by Mr. Badger, the Board voted to amended the retail hours for the Christmas Season portion of the previously approved conditional use permit B-02-05-11 issued June 19, 2002 to no limitation on days, except operating hours on Sundays will be from 8 am to 6 pm and only the selling of Christmas related products will be allowed.
Motion, second and roll call vote to
CONDITIONS Yes___ No___
MOTION BY: JENSEN
SECOND BY: BADGER
ROLL CALL:
Paul Malone YES Mark Reaves ABSENT
Dick Jensen YES Mike Gallo ABSENT
Paul Badger YES
MOTION & RECOMMENDATION:
On a motion by Mr. Badger, seconded by Mr. Jensen, the Board voted to allow the expansion of the landscaping business hours from Monday – Saturday 8 am to 7 pm. Sundays will not be allowed.
CONDITIONS Yes___ No___
MOTION BY: BADGER
SECOND BY: JENSEN
ROLL CALL:
Paul Malone YES Mark Reaves ABSENT
Dick Jensen YES Mike Gallo ABSENT
Paul Badger YES
B. APPROVAL OF MINUTES:
On a motion by Mr. Jensen, seconded by Mr. Badger, the Board voted to approve the minutes from the December 21, 2005 Board of Adjustment meeting.
C. CORESPONDENCE & MISCELLANEOUS:
None
D. DELIBERATIVE SESSION:
The Board voted to move into deliberative session at 8:27 p.m. Voted to return to public forum at 8:55 p.m.
E. ROUND TABLE:
None
F. ELECTION OF OFFICERS:
None
G. ADJOURN:
On a motion by Mr. Jensen, seconded by Mr. Badger, the Board voted to adjourn the Board of Adjustment meeting of February 15, 2006.