2018 Raymond Zoning Board of Adjustments Meetings
Freetown Road Property Wins One Variance, Loses Another
By Penny Williams 1-3-19
At its Dec. 19 meeting, the Zoning Board of Adjustment (ZBA) approved three of the five variances sought by attorney Charles Cleary of Wadleigh, Starr & Peters on behalf of Timothy Peloquin regarding Peloquin’s property on Freetown Road. The decision came amidst opposition from neighbors.
Initially the plan was to build 10 two-bedroom condominium units and a 2,715-square-foot office building on the 1.62-acre parcel in a C1 (Commercial) zone. The property is a narrow strip of C1 sandwiched between C2 mixed and residential zones and in 2005 had been approved for a site plan calling for the development of a 22,000-square-foot office building with 78 parking spaces. Peloquin tried to market the property unsuccessfully for 13 years and has decided to change to a mixed use plan.
The biggest drawback to the commercial use of the property is the lack of direct access off Route 107 (Fremont Road), which is not allowed by the State. Cleary claimed the mixed use proposal was the most efficient use of the property.
Cleary sought five variances, the first of them seeking relief from the Raymond Zoning Ordinance requiring minimum lot size of 5 acres for multi-family housing, and the second a variance from the ordinance requiring calculating the number of allowed bedrooms per acre of developable land with the use of data from the New Hampshire Code of Administrative Rules. The ordinance states that in no case can density exceed eight bedrooms per acre of non-G land. Where multi-family is a permitted use within C3 East and C3 West Zoning Districts, in no case can density exceed three bedrooms per acre of developable land.
The third variance sought relief from the ordinance requiring building setbacks of not less than that of the underlying zone, except that any structure must be set back 75 feet from any existing Town or State road, and the additional side and rear setback requirements must be applicable as appropriate.
He sought a fourth variance from the requirement that all buildings on less than two acres require setbacks of 25 feet from all property lines. Setbacks in Zone C1 are 15 feet for side, rear and front.
And he sought a fifth variance from the ordinance requirement that multi-family housing is not allowed in Zone C1.
At a hearing on Oct. 24, the ZBA approved the first variance – minimum lot size for multi-family housing - by a 3-2 vote, with Marc Vadeboncoeur and Steve Feher opposed. At that same hearing, the fifth variance, which would allow multi-family housing in C1, was unanimously approved, and the fourth variance, regarding setbacks, was withdrawn.
At that same October meeting, ZBA member Paul McCoy, who acknowledged that he had acted as a broker for the property under discussion in the past, did not recues himself from the board.
Subsequently objections were raised, and neighboring resident Janice Arsenault presented a letter of objection to the Board of Selectmen in December. At the Dec. 19 ZBA meeting, attorney Laura Hartz of Orr and Reno in Concord represented the abutters and said McCoy was potentially biased in favor of the applicant and had influenced board members in favor of the applicant's request. She said the abutters wanted him to step down.
Cleary responded to Hartz’s statement by saying the objection to McCoy’s remaining on the board had come too late.
The board discussed this and ZBA member Joyce Wood said she thought McCoy should recuse himself to avoid the appearance of a conflict of interest. McCoy argued that a full board was needed but said if the board wished him to do so, he would step down. The board then asked him to step down and he did so. The board asked Cleary if he wished to proceed with a less than full board and he said he did.
A revised plan, developed after the abutters met with the applicant and his attorney after the October hearing, was presented, which reduced the number of condominium units from 10 to eight and the number of bedrooms from 20 to 16. The revised plan also increased the size of the proposed commercial building from 2,715 square feet to 4,000 square feet, changed the configuration of the condominium units and created more green space.
Hartz said the meeting with abutters had not necessarily resulted in an agreement to the changes presented, and did not result in agreement to any enlargement of the commercial building. She asked why the applicant should be allowed to change the neighborhood, saying the plan does that by increasing overcrowding and diminution of abutter property values. She added that the only hardship is that the applicant has not been able to sell the property as a commercial venture and now wants to put residential multifamily housing in the C1 zone, where bedrooms/residential use are not allowed.
She requested the board deny the variances because they are in the best interests of the applicant only and not in the best interests of the abutters, and zoned areas exist where the applicant could do what he proposes.
Abutter Patricia Bridgeo of 7 Old Fremont Road spoke at length about how the proposal would impact the neighborhood, calling it a "Frankenstein" plan. She raised concerns about density, wells, property devaluation, and lack of safety for any children who might live in the proposed condominiums, due to the lack of land away from busy highways.
Resident Bob McDonald complained about bedroom density and pointed out that curbing of density is one of the reasons zoning exists. He asked the board to do "the right thing - follow the rules." He also questioned why only the applicant's hardship was being considered.
Resident Kevin Pratt said the request for bedrooms that are not allowed in C1 made approving the other variance requests difficult, as the bedrooms are not supposed to be in C1.
Arsenault objected to McCoy’s approaching and talking with the board members during a break in the meeting, even though he had recused himself. And she raised a concern about who was protecting the abutters’ rights and said if the zoning were to be changed, it should go before the people of Raymond for a decision.
The board deliberated on the second variance request regarding the number of bedrooms allowed per acre in the C1 zone and ultimately voted to deny it. The board approved the variance request regarding setbacks but put in the condition of a 25-foot setback from the right-of-way on Route 107, with no relief on the Fremont Road Extension setback.
Community Development Director Ernie Creveling said after the meeting that he would be researching what would be the next step in the matter.
The board continued a second application for variances, this one from attorney Patricia Panciocco on behalf of Healyford Realty, LLC for property at 26 Chester Road within Zone C3-East (Commercial Mixed Use). A variance was sought from the section that does not allow multi-family housing in Zone C3-East, and an additional variance was sought in calculating the number of allowed bedrooms per acre of developable land.
Raymond Zoning Board Considers Variances to Site 10 Condos, Offices on 1.6 Acres
By Penny Williams 10-28-18
The Raymond Zoning Board of Adjustment (ZBA) is considering five variances that would change the use of 1.6 acres on Freetown Road.
At its Oct. 24 meeting, the ZBA heard an application for five variances submitted by Charles Cleary of Wadleigh, Starr & Peters on behalf of Timothy Peloquin regarding property he wishes to develop for sale on Freetown Road.
ZBA member Paul McCoy told the board as soon as the meeting began that he was a real estate broker and had worked on this parcel for a number of years. He said he knew the owner and had been engaged to market the parcel for years, but was not presently involved. “I don’t feel any conflict,” he said and noted he thinks he could be independent in his consideration of the applicant's requests.
The board was polled and no one had a problem with his continuing despite his relationship with the property and the owner. McCoy thus did not recuse himself from discussion or voting.
Cleary said Peloquin’s plan is to build 10 two-bedroom condominium units and a 2,715-square-foot office building on 1.62 acres in the C1 zone. The property exists in a narrow strip of C1 sandwiched between C2 mixed and residential zones.
The responsibility of the ZBA is to determine if a requested variance meets the following criteria:
• Granting the variance would not be contrary to the public interest.
• The use would not be contrary to the spirit of the ordinance.
• By granting the variance, substantial justice would be done.
• No diminution in values of surrounding properties would result.
• Denial of the variance would result in unnecessary hardship.
The first variance sought relief from the ordinance’s minimum 5-acre lot size for multi-family housing. The second sought relief from the ordinance section that requires use of data from the New Hampshire Code of Administrative Rules ENV-WS 100: Subdivision and Individual Sewage Disposal System Design Rules in calculating the number of allowed bedrooms per acre of developable land.
The third variance sought relief from the section stating that building setbacks shall not be less than that of the underlying zone, except that any structure shall be set back 75 feet from any existing Town or State road and the additional side and rear setback requirements shall be applicable as appropriate, except that within Zone C1, Section 15.2.6 and Section 15,2.7 shall not apply.
The fourth variance sought relief the section stating all buildings on less than 2 acres shall require setbacks of 25 feet from all property lines. Setbacks in Zone C1 are 15 feet for side, rear and front.
The final variance seeks relief from the non-allowance of multi-family housing in zone C1. Zone C1 is Commercial, designed for the purpose of “centralizing the provision of basic goods and services. Single or multi-family housing is specifically not permitted.
Cleary said a site plan for the parcel was approved in 2005 and calls for the development of a 22,000-square-foot office building with 78 parking spaces. Peloquin has tried to market the property and the commercial building unsuccessfully for 13 years and has now decided to change course and market a mixed-use plan instead. The biggest drawback to the commercial use of the property was stated to be the lack of direct access off Route 107, which is not allowed by the State.
Cleary argued that mixed use was the most efficient use of the property.
He claimed the proposal was not contrary to the public interest and was consistent with the spirit of the ordinance because the lack of direct access to a main road makes it a poor place for commercial development. He added that the mixed-use plan is in keeping with the surrounding residential lots.
He said substantial justice would be done because the property cannot be marketed as commercial and its mixed use will allow it to be put it back on the Town tax base. He said buffers around the residential structures and the office building would be built to the highest standards and would not diminish but instead would increase surrounding property values more than the current empty lot and foundation.
Regarding the hardship criteria, he said its failure to sell for 13 years despite aggressive efforts means the change to a hybrid residential development and small business office that Peloquin is considering using for his own business may make it marketable. He noted that while the surrounding lots are generally residential, there are commercial lots; thus, mixed use would be a reasonable use for this property.
Cleary pointed out that the proposed use of the lot meets the legislative safety net for hardship - if the lot cannot be used in strict conformance with the ordinance, a variance is necessary to allow reasonable use. He emphasized that Peloquin had tried to make it work as a commercial property but had been unsuccessful.
McCoy suggested that the first and last variances could be considered as one but the board was not in favor of doing so and decided to start with the fifth request, a variance from the ordinance requiring that there be no multi-family housing in Zone C1.
Before going over the actual variance requests, the board asked if the septic system can be properly placed on the property and if it would meet the requirements of the 10 units and office building. The answer was stated as yes to both.
The board asked the size of the condo units and were told they would be between 1,400-and 1,600-square-foot units designed primarily as workforce housing, and thus did not anticipate families with children or excess traffic. A traffic study had been done and approved for the 2005 plan with 79 parking spaces; the current plan proposes half that number of spaces.
Abutters Patricia Bridgeo and John Taylor spoke to the board and submitted a formal letter of complaint Oct. 25 against the ZBA (see Complaint Against the Raymond Zoning Board of Adjustment).
Bridgeo said there are several commercial lots in the area that have not sold even after they were offered as mixed use, and expressed concern about putting 10 units on a 1.6-acre parcel, suggesting that this has the potential to be a cost to the Town, should single parents with children use these dwellings.
She pointed out the neighbors did not object to the original proposed commercial development because it would be small, with professionals coming and going from work. She said, however, that now she and others think this proposal will bring traffic issues to their community and expressed concern over the type of owner who would be attracted to workforce housing. She said the proposal is not an equitable solution for the neighborhood.
The abutters questioned why the Town would allow multi-family housing in the C1 zone and noted the requirement is for 5 acres. They pointed out that the hardship of the owner should not become the neighbors' hardship. The abutters also said the proposed plan would reduce their property values.
Abutter Tim Louis said he is concerned about the impact on those who live in the neighborhood. He indicated 20-plus cars going in and out daily on the already busy side roads would be an added traffic issue, especially for those trying to get onto Route 107 when it is already difficult to do so.
A letter was read into the record from Raymond Arsenault expressing concerns about the proposed development as well. The letter referenced the extreme difference between the Town-required 5 acres for multi-family dwellings and the proposed 10 multi-family dwellings proposed for 1.6 acres. He expressed a concern that the family well would be impacted by the development’s septic system, and noted traffic issues. Lastly the letter said that if the proposal were appropriate, it would fit in without any impact on setbacks, and the Town prohibits multi-family dwellings in the C1 zone.
Cleary responded to the comments by noting that when there are parcels such as this along a highway such as Route 107, the multi-family approach is often better than single-family residential dwellings. He said the units would be attractive and those who would own them would be “reasonable families.” The point was also made that this type of housing does not attract single parents with children because of the lack of children in the neighborhood.
Peloquin said he was not threatening the board but added that if this proposal is turned down, he will put a commercial development on the parcel that could well be less acceptable to the surrounding residential families and the Town.
McCoy argued for approving the variance regarding prohibition of multi-family dwellings in the C1 zone by saying there would be more difficulties with a commercial development and this use is better. The board discussed this and then went through the five criteria for each member.
None saw this as being contrary to the public interest or to the spirit of the ordinance but member Joyce Wood noted a density concern. All the members saw substantial justice being done by approving it, and as for diminishing other property values, said this would improve values over the current vacant lot with an unfinished foundation. On the hardship criteria they all alluded to the fact that the parcel had not sold in 13 years as a commercial development to show this proposal was a reasonable use.
They voted 5-0 to grant the variance to allow multi-family dwellings in a C1 zone.
McCoy then suggested approving the first variance request regarding the requirement for a minimum lot size of 5 acres for multi-family dwellings, as they had already approved allowing the multi-family development in a C1 zone, but member Stephen Feher said he wanted to discuss it so they proceeded through the criteria.
Feher said in his opinion this was contrary to the public interest and would alter the character of the neighborhood. McCoy argued that as they had already approved multi-family in C1, that did not hold.
Wood saw it as possibly being contrary, given the density issue, and alternate member Marc Vadeboncoeur agreed, but McCoy said there are times when more concentration is a good thing. Feher again noted he thought the request was in conflict with the spirit of the ordinance and Wood agreed again, referring to the density issue.
McCoy again said that as the board had already approved a multi-family dwelling in the C1 zone, that took care of this concern.
There was a brief discussion about re-voting on the previous article but it was decided that they had made a decision and should move on.
No issues were raised concerning substantial justice, but Feher said he thought approving this would significantly change the character of the neighborhood, and Wood and Feher saw possible diminished property values for surrounding properties. When it came to the hardship criteria, Feher said he didn't see this as a reasonable use but the others did not agree. The final vote was 3-2, with Feher and Vadeboncoeur voting no.
By this time it was almost 10 p.m. and the board had to be out of the building per School District requirements by 10 p.m. Although McCoy wanted the board to approve the three remaining variance requests that night, the board agreed to continue the hearing to Nov. 14 at 7:30 p.m.