July 8, 2010 Minutes

Pittsfield Zoning Board of Adjustment
Town Hall, 85 Main Street
Pittsfield, NH 03263
Minutes of Public Meeting

DATE: THURSDAY, JULY 8, 2010

ITEM 1. Call to Order at 7:00 P.M. by Ed Vien, Chairman

ITEM 2. Roll Call

Members Present:

Ed Vien (EV), Chairman, Carole Dodge (CD), Vice-Chairman, Paul Metcalf, Sr. (PM), Jesse Pacheco (JP), Larry Federhen (LF), Ted Mitchell (TM), Alternate and Delores Fritz, Recording Secretary.

Members Absent:

None.

ITEM 4. Continued Public Hearing with respect to an application for a Variance filed by Frank Volpe Revocable Trust, 34 Main Street, Pittsfield, NH 03263 to convert storefront (18 Elm Street corner lot) into an apartment (Tax Map U03, Lot 82). The property is owned by Frank Volpe Revocable Trust,
34 Main Street, Pittsfield, NH 03263. This property is
located in the COMMERCIAL Zone.

(EV) Before this hearing is opened, there are a couple of things that I
would like to address. Mr. Volpe has requested that the same Board
members sit as were present at the first hearing. (CD) I would let the Board
decide, though I have been following this matter. I will leave it up to the
Board. (JP) and (LF) agreed that it does not matter. (PM) The same
members should sit on this continued hearing.

Ted Mitchell, Alternate seated on the Board. (CD) seated in the audience.

(EV) Before we continue with this hearing, I inadvertently skipped Item 3
Approval of the Minutes.

ITEM 3. Approval of Minutes of June 10, 2010

(PM) Motion to approve Minutes of June 10, 2010. (TM) Second.
After Discussion: Carried 5-0.

Discussion: Correction noted that Ted Mitchell, Alternate is not noted as present and seated on the Board. Also Page 2: Should be Gary Volpe as present and representing the Frank Volpe Revocable Trust.

ITEM 4. Continued

(EV) There were some questions from the Board but ultimately Mr. Volpe was not requested to bring any information to this meeting. I did request that any Board members with questions contact me so that I could refer them to counsel.

One of the questions asked of counsel was if applicant can request to bring in another property with this application. The response was that we could not require it, but applicant can if so desired. Secondly, was a question regarding the Deed. The Deed would have to be amended to note that there would only be two apartments in the newly constructed building.

I also questioned Town Counsel, Laura Spector, concerning the Zoning requirement which requires two parking spots per apartment, either rented/leased. She noted that the parking spots do not have to be owned by applicant but it would have to be recorded on Deed. The Variance runs with the building forever. That being said, the Board cannot control parking.

Mr. Volpe: The Elm Grove Parking Lot has twelve available parking spaces and arrangements can be made for two of these spots to go with the apartment forever.

(JP) You would take the parking for 34 Main Street and have two parking spaces for 18 Elm Street instead? Mr. Volpe: I am not required to have any parking spaces for 34 Main Street; this is grandfathered.

(EV) noted that he had done some research and could find no records indicating that the Town took parking lot from Mr. Volpe by eminent domain. He explained how, when, and to whom property was sold by Frank Volpe. Mr. Volpe: So I would have to lease four spaces as long as it stays a parking lot? (EV) Correct.

Board and Mr. Volpe discussed the feasibility of the area of the parking area behind 34 Main Street and that four cars could be parked there. (LF) We would need some assurance that the parking area will remain there. (EV) noted that if Elm Street Parking changes hands and is no longer a parking lot that Mr. Volpe would have to return to this Board for approval. (TM) One person cannot prevent use of another person’s land. (JP) So you are turning a commercial place into an apartment by giving the parking area from 34 Main Street to 18 Elm Street.

Mr. Volpe noted that currently his plans call for a two unit building at
34 Main Street and will never go back to a four unit building. (EV) By putting it in the Deed, it restricts anyone from doing it differently.
(JP) Should you sell it in the future, it will be noted in the Deed. Board and Mr. Volpe discussed the right of way noting that one-half of the right-of-way is for 34 Main Street and one-half of the right-of-way is for 36 Main Street. (LF) The right-of-way stays alive for both buildings. Mr. Volpe: Buildings are owned by the trust. (TM) Both Deeds, old and new, have to show right- of-way. (EV) We are trying to work this out to indicate what is best for everyone in the future. Mr. Volpe: Before, you did not consider it as together. (JP) This Board cannot specifically request it, but you can. (EV) We can put conditions on this and no permit will be issued until the conditions are met.

CRITERIA:

A. No diminuation in value of surrounding properties will be suffered.

All Agree 5-0 (Pass).

B. Granting the Variance would not be contrary to the public interest.

All Agree 5-0 (Pass).

At this point, audience members requested public input. Board agreed.

PUBLIC INPUT (7:45 P.M.):

Christopher Smith: I guess I agree with the substance of this request, and we
want less apartments in Town but we are dealing with theory and
assumptions of if. I feel I would rather not see a building going up on
Main Street. I do not see the net effect benefiting Pittsfield. It is really out
of the control of this group as you cannot control what happens at 34 Main
Street. I do feel better about it being in the Deed but I do not think it
triggers any economical need.

The protocol is setting a precedent here as the notice went out for 34 Main
Street and you have spent time talking about 36 Main Street, which are tied
together. This was never mentioned in the notice. The decision made is
setting a poor precedent and should be set on its own merits.

(EV) I disagree with you as it was noticed properly as it concerns 34 Main
Street/18 Elm Street. We cannot bring other lots in but applicant can offer it
as part of the meeting. Mr. Smith: But it was never noticed.

(CD) We have had to continue this for many unknown little principals. We
could put an ad in the paper to indicate what the continuance was for.
Everyone could work together and come back with a neater package. (EV)
The abutters were notified. I have noticed that people complain more after
the fact than during the fact. (CD) Maybe we could take a five minutes
recess and mull it over. (EV) This is the second time that he has come
here. All the unknowns have been covered. (JP) I understand where you
are coming from but we are not bringing in anything. We give him an
apartment and he gives us the deeded spaces. For the public, this is a better
situation. He is not getting four apartments but the right to build two. I am a
builder and two apartments are better looking than four apartments.

(TM) Nothing gets started or constructed until guarantees are met. As long
as the guarantees are there, it is okay.

Mr. Smith: On the surface, it seems you are setting a precedent. (TM) One
misconception exists in that taking the Town to Court never overturns an
issue as long as legal procedures are followed. Mr. Smith: I am not second
guessing the Board.

Close Public Input (8:10 P.M.)

CRITERIA Continued:

C. The Zoning Restriction as applied to the property interferes with the reasonable use of the Property, considering the unique setting of the property in its environment.

(TM) The unique design for the entrance makes it undesirable for businesses.

Agree 4-1 (EV).

D. No fair and substantial relationship exists between the general purposes of the Zoning Ordinances and the specific restriction on the property.

All Agree 5-0.

E. The Variance would not injure the public or private rights of others.

All Agree 5-0.

F. Granting the Variance would permit substantial justice to be done.

All Agree 5-0.

G. The proposed use is not contrary to the spirit of the Ordinance.

All Agree 5-0.

(TM) Motion to approve Variance for Frank Volpe Revocable Trust, 34 Main Street/18 Elm Street, Pittsfield, NH 03263 to convert storefront (18 Elm Street corner lot) into an apartment (Tax Map U03, Lot 82) with the following conditions:

1. The right-of-way between 34 and 36 Main Street shall be noted on both Deeds upon verification that the right-of-way exists.
2. Two parking spaces behind 36 Main Street shall be deeded to 18 Elm Street apartment and those spaces be noted in rental/lease agreement for said apartment.
3. Confirmation that future building at 36 Main Street Deed reflects that only two apartments will exist.
4. All conditions will be met and documentation forwarded to Zoning Board of Adjustment when verified.
5. This Variance is void if all conditions are not met.
(LF) Second. Carried 5-0.

(EV) explained the thirty (30) day appeal process to Mr. Volpe. “Please let me also discuss with George Bachelder prior to your doing anything with the Deeds.”

(CD) returned and was seated on the Board. (TM) seated in the audience. (8:30 P.M.)

ITEM 5. Public Hearing with respect to an application for a Variance filed by John (Pat) Heffernan, P.O. Box 53, Concord, NH 03301 to house a gun shop business in existing garage located at 30 Watson Street, Pittsfield, NH 03263 (Tax Map U05,
Lot 63.) This property is owned by John (Pat) Heffernan and is located in the SUBURBAN Zone.

(JP) I would like you to know that I know Pat and have done work with him in the past. It is up to the Board if you prefer I not sit on this. (EV) Everyone knows Pat. Board agreed that all members would sit on hearing.

Pat Heffernan: In order to be licensed by ATF it is necessary that I call this a gun shop. It is for paperwork and is a referral business. This might be a good retirement job for me. I have a friend who has been doing this for years. It is for a transfer station for shipping and receiving firearms from out of State and will be a place to receive it. There will probably be no guns or powder housed there.

There is a fifty foot range in the basement. Most customers know what a gun is and what they can do. The range is for personal use not public use. I do not like to shoot at the Watson Street address.

Kyle Parker, Building Inspector, left meeting at 8:40 P.M.

(EV) Are you planning on having open hours? Mr. Heffernan: According to AFT, I would have to have business hours, probably Monday-Wednesday-Friday between 7:00 A.M. and 9:00 P.M. These will be posted hours. (EV) Will it be inspected by ATF? Mr. Heffernan: “Yes.” (EV) They have requirements. Will everything be kept under lock and key?
Mr. Heffernan: There will be no display firearms in building. (EV) I am familiar with what you are doing as I have done it through Riley’s Gun Shop. Mr. Heffernan: He charges a fee for the transfer. This will be licensed by ATF, though no State license, only a background check. State does not care unless you sell to felons. (LF) Is there anything in the building now? Mr. Heffernan: It is for storage now. (EV) This is similar to wholesale car dealership; you need a location to sell. Mr. Heffernan: You have to have a store. (LF) Have you gone through the Federal process yet? Mr. Heffernan: No, first the Zoning Board. (EV) I have discussed this with Police Chief and there are no problems with this set-up.

(JP) There will be no storage of guns there? Mr. Heffernan: Guns are stored all together. (JP) Are you required to put up a sign? Mr. Heffernan: No, I do not want a sign. I might put one up on the panes of glass. This is on a referral basis. (LF) In your letter of May 23rd you indicate electronic video and alarm system. Mr. Heffernan: This is not required. (PM) This is the Suburban area and there are businesses there now. Mr. Heffernan: The State is now making politically not easy to get these guns.

PUBLIC INPUT:

(EV) Anyone like to speak FOR this? No response.

AGAINST – Adrian Getz: I came out tonight to find out what the story is. I saw gun shop and the lights went on. Mr. Heffernan: It is hard to give a description of the type of business it is. Mr. Getz: I am confused. It sounds more like an office. Why here? Mr. Heffernan: ATF requires I have a place of business, so I am going to clean it up and there will basically be no change. Mr. Getz: I guess all my concerns have been addressed. Mr. Heffernan: If two or three years down the road, I still want to do this, I will do it safely. If it takes off, I will spend money for surveillance. It is also required that there is a gun safe. Mr. Getz: If it takes off, will you be allowing people to shoot there? Mr. Heffernan explained that though there is a shooting range in the basement, it will not be used by customers. He noted he is very particular who uses this range. Mr. Getz: Why would one go to you instead of Riley’s? Mr. Heffernan: It will be cheaper. Mr. Getz: If you intend to expand at some point, will you have to come back before this Board? (EV) He would not have to. The ATF would be involved. Mr. Getz: Will you be doing any kind of advertising? Mr. Heffernan: No. It will be by word of mouth.

Close Public Input

(PM) This has not really been done before. (JP) Will you be doing it the opposite way also? Mr. Heffernan: No, I do not think I can. It has to be transferred in the State in which it arrives. Most of the stuff will be coming this way. Mr. Heffernan explained that it has to be a Variance for a shop in order to get the ATF license. He questioned since the Variance goes with the property, is it possible that someone could buy it. (EV) Transfer of ownership would not require a new hearing. (CD) Variance goes with Deed. This would be controlled by ATF. We would need to grant as is or not at all with no conditions. Mr. Heffernan noted that he has no intention of selling the property.

CRITERIA

A. No diminuation in value of surrounding properties will be suffered.

All Agree 5-0. (Pass)

B. Granting the Variance would not be contrary to the public interest.

All Agree 5-0. (Pass)

C. The Zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property in its environment.

All Agree 5-0. (Pass)

D. No fair and substantial relationship exists between the general purposes of the Zoning Ordinance and the specific restriction on the property.

All Agree 5-0. (Pass)

E. The Variance would not injure the public or private rights of others.

All Agree 5-0. (Pass)

F. Granting the Variance would permit substantial justice to be done.

All Agree 5-0. (Pass)

G. The proposed use is not contrary to the spirit of the Ordinance.

(EV) We need to work with the people. It would not be bad for the community.

All Agree 5-0. (Pass)

Discussion:

(EV) Customers will not be allowed to shoot in that area. (CD) This is not a condition but rather a verification that this area is not for shooting. Mr. Getz: Is it illegal to shoot both inside and outside? Mr. Heffernan: I am not sure. (EV) It is not a legal area for outside shooting. (CD) State Law notes it is not for the outside and the surrounding building and is a gray area concerning shooting inside the building. (TM) As a member of the Planning Board, we are redoing the Zoning Ordinances looking at how to make it more applicable to home occupations.
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(EV) On another note, does the Planning Board intend to ever invite us to a Working Session? (TM) Probably in September there will be a joint meeting and then public hearings.

Also, Christopher Smith has been approved as Zoning Board Alternate by Board of Selectmen.
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(CD) Motion to grant a Variance for a gun shop at 30 Watson Street, Pittsfield, NH 03263, (Tax Map U05, Lot 63) owned and filed by John (Pat) Heffernan. The business will be located in an existing garage in an area not zoned for the discharge of firearms. (LF) Second. Carried 5-0.
(EV) Explained the thirty (30) day appeal process to Mr. Heffernan.

ITEM 6. Members Concerns

(CD) We should not have conditions in our findings. We need to be sure that we have all the information we need prior to the hearing. It is not good practice to make conditions either yes or no. I am not willing to go along with an “if.” Looking towards the future, I would be more comfortable had conditions not been asked for.

ITEM 7. Public Input

None.

ITEM 8. Adjournment

(LF) Motion to adjourn. (EV) Second. Carried 5-0.

Meeting adjourned at 9:32 P.M.

Approved: January 13, 2011

____________________________ _________________________
Edward Vien, Chairman Date

I do hereby certify that these Minutes were recorded by me on July 8, 2010, transcribed and publicly posted on July 21, 2010.

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Delores A. Fritz, Recording Secretary
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