May 8, 2014 Minutes

ZONING BOARD OF ADJUSTMENT
TOWN HALL, 85 MAIN STREET
PITTSFIELD, NH 03263
MINUTES OF PUBLIC HEARING

DATE: THURSDAY, MAY 8, 2014

ITEM 1. Call to Order at 7:06 P.M. by Carole Dodge, Chairman

ITEM 2. Roll Call

Members Present:

Carole Dodge (CD), Chairman, John (Pat) Heffernan (PH), Vice-Chairman, Paul Metcalf, Sr. (PM), Denis Beaudoin (DB), Scott Aubertin (SA), Albert Douglas (AD), Alternate and Delores Fritz, Recording Secretary.

Members Absent:

None.

ITEM 3. Approval of Minutes of April 24, 2014

(PM) Motion to approve Minutes of April 24, 2014.
(DB) Second. Carried 5-0.

ITEM 4. Public Hearing with respect to an application for a Special
Exception filed by Joseph and Polly Cortese, 51 Dowboro
Road, Pittsfield, NH 03263 (Tax Map R41, Lot 10) for a Home
Occupation for Internet Sales. The property is owned by
Joseph and Polly Cortese, 51 Dowboro Road, Pittsfield, NH
03263 and is located in the RURAL Zone.

(PH) Motion to accept application for Special Exception filed by Joseph and Polly Cortese. (PM) Second. Carried 5-0.

Mark P. Hodgdon PLLC represents the Corteses’ and was present tonight.

Atty. Mark Hodgdon: We are coming before you tonight with an application for a Special Exception. Mr. Cortese has been operating his business here in Town for the past twenty (20) years without complaints. His business is quiet, with no fumes, equipment or other industrial activities and no real impact on the abutters.

(CD) Our practice is to review the Criteria, then we will hear from the general public and the Board will discuss.

CRITERIA:

A. The specific site is an appropriate location for the proposed use or
structure.

Atty. Hodgdon noted the responses in the application and added that the subject property has a large two-story attached barn which is being used for the business. They are making no proposed changes, there is no noise involved.

B. The proposal will not be detrimental, injurious, obnoxious,
or offensive to the neighborhood and will not diminish the value of
surrounding properties

Atty. Hodgdon: He has operated there without any concerns expressed. The driveway is essentially a “horseshoe” type driveway.

C. There will be no undue nuisance or serious hazard to pedestrian
or vehicular traffic, including the location and design of access
ways and off-street parking.

Atty. Hodgdon: There are two access points; as I mentioned the driveway is a horseshoe shape which is really quite a lot for a building this size.

D. Adequate and appropriate facilities and utilities will be provided to insure the proper operation of the proposed use or structure.

Atty. Hodgdon: There will be no new infrastructures.

E. The proposed use or structure is consistent with the spirit of the
Town’s Zoning Ordinance and the intent of the Town’s Master Plan.

Atty. Hodgdon: There is adequate parking for four (4) employees. There would be no foot traffic due to the based business.

Discussion:

(PH) There is ample parking for four employees. Atty. Hodgdon: All the employees are parking on this site and there is ample room for four employees. (PH) In all seasons? Atty. Hodgdon: Yes. Joseph Cortese: The driveway is 350 ft. in length. Atty. Hodgdon: There is a paved area near the residence and barn. Mr. Cortese: Presently, there are eight cars which park along the stretch of the driveway. Atty. Hodgdon: They were parking down below by the pond but are not parking there now because it is Town property. Mr. Cortese: There are some alternates – the driveway, other areas of the property or Town leasing the pond property. He noted that in the past they have maintained the property by the pond.

Public Input

Pam Taylor: I have a question. If you have been operating your business for twenty years, why have you not applied for a Variance in the past? As a responsible business owner, you should have known that you need to do this. You have been negligent and I do not understand why you would do that.

Atty. Hodgdon: The business has just started becoming prosperous and it did not occur to them that they should have and I suppose since the Town never raised the issue either, it did not occur. They made a mistake and are here to rectify it.

Louis Houle: I have read the Zoning Ordinance and I assumed it was allowed. I did not understand them and one can easily be confused.
Mr. Cortese: One of the reasons we bought the property because of the size, seclusion, security and the size of the barn before we transitioned to Internet sales. It was in 2006 that we brought in employees; then in 2008 there was a turn in the economy. It has only been in the last nine months that we have experienced favorable growth. Businesses need predictability. We run a reasonable, responsible, legal business from our home.

Ed Vien: In this day and age, people are doing Craig’s List from home. It is a new age and people everywhere are doing it. We are seeing more and more people doing it. I, for one, do not see a problem with this.

Louis Houle: I am an abutter all around his property. I have helped him out from time-to-time. The nature of his business is E-Bay sales and is an amazing opportunity for him. I hope you support it. He is not trying to hide anything.

Close Public Input

(PM) Motion to approve the Special Exception for Joseph and Polly Cortese, 51 Dowboro Road, Pittsfield, NH 03263 (Tax Map R41, Lot 10) for a Home Occupation in the Rural Zone. (PH) Second. Carried 5-0.

(CD) advised them of the thirty (30) day appeal process.

ITEM 5. Public Hearing with respect to an application for a Variance
filed by Joseph and Polly Cortese, 51 Dowboro Road,
Pittsfield, NH 03263 (Tax Map R41, Lot 10) to allow Home
Occupation to increase the employment limit up to thirteen (13)
employees at 51 Dowboro Road, Pittsfield, NH 03263.
Property is owned by Joseph and Polly Cortese at said address
and is located in the RURAL Zone.

(PH) Motion to accept application for Variance filed by Joseph and Polly Cortese. (PM) Second. Carried 5-0.

Atty. Hodgdon: In October, Joseph and Polly Cortese were approved by their supplier for certain Internet sales. Since this is still in the trial stage, it is hoped that they can continue to use the site for up to thirteen employees. Parking is on-site. There would be no substantial increase in traffic; Dowboro Road is already a busy road with Town trucks and other companies utilizing it. They would not be altering the structure. All activities are in the barn area; it is quiet, no fumes and no noise. It is a unique setting. Because of the unique nature of the business, the barn area is used to handle the business.

CRITERIA:

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

Atty. Hodgdon noted there are no abutting residences, no impact on public services and would allow applicants to fully utilize their property.

2. If the Variance were granted, the spirit of the ordinance would be observed.

Atty. Hodgdon reiterated the items as listed on the application.

3. Granting the Variance would do substantial justice.

Atty. Hodgdon explained the various reasons and noted that the Corteses’ have remedied parking on Town property.

Board Discussion:

(PM) I am happy to have a business there. Do you employ local people? Mr. Cortese explained that most of his employees were single mothers with children and were mostly from the Concord area. (PM) My one suggestion would be to expand the driveway entrance. Atty. Hodgdon: I have already discussed that with the Corteses.

(SA) Thirteen is extremely above the allowed number of employees for a Home Occupation. (CD) A Home Occupation is supposed to be a subsidiary to the home. Other towns in the state allow only two employees and sometimes only the home owner. The letter from the Planning Board notes some concerns with the driveway entrance being such a sharp turn and with cars parked in one section of the driveway that there is limited emergency access/egress. If anything happens, emergency vehicles would have a difficult time to get in there which is a big concern. Mr. Cortese: The main entrance remains clear. To respond to your question about the number of employees, this is good for Pittsfield. Our supplier suggests good business practices which are healthy for Pittsfield. We are projecting for growth on the basis of proposed future business. I cannot grow and acquire other locations without making the business solid on the property first.

Atty. Hodgdon: I understand the Board’s concern about precedent. You have the power to give the Variance – it is within your power. The law has changed and encourages reasonable use of the land. If you believe they are violating the Ordinance, then do not grant. Is their significant impact on the abutters? No, it is the type of business that is quiet and has no impact on the neighbors.

(CD) This Board addressed something similar not too long ago and gave an example of the situation. (DB) I understand the business risk you are facing with your new endeavor, but I doubt whether we can approve this. I do not know where to go with this. I do not want to set precedent here. (CD) To my knowledge, there has never been a request to increase number of employees for Home Occupation. (PH) The example that Carole gave you was about someone who started out like you guys. This is part of being in business. Has the barn been inspected by the Fire Department for life safety issues? What about the heat? What about the facilities. Mr. Cortese explained these areas to Board. (PH) Did you have an electrical permit to have the generator installed? How about the septic system – the house has one or two bedrooms? Where does the sewage go? Mr. Cortese: We all use the existing septic system. Atty. Hodgdon: It is not a vast increase in the septage because the people do not live there.

(PH) The Planning Board is trying to sort out where businesses should be going. Businesses belong in the Commercial Zone and fourteen employees in one area is setting a precedent. The area is rural by nature. I am in favor of businesses growing but if we want to keep Town rural, the place for businesses is in the Commercial Zone. I disagree with your idea.
Mr. Cortese: We do plan on growing but our business depends on one or two suppliers. (PH) You are not giving the Town a great deal. The employees do not live here; they do not pay taxes here; they do not shop here. How does that help the Town? Polly Cortese: They do use the local businesses. We were looking at commercial properties, but we cannot do that right now. Atty. Hodgdon: They use the local post office and recently had a huge postage bill. (PH) All the money that the post office generates goes to Washington not Pittsfield.

Mr. Cortese: Give us the opportunity to do this.

Public Input:

Pam Taylor: Again, you are a business owner and yet you were unaware that you needed to go for a Variance to have more than four people for a Home Occupation. Years ago, you were shown your property line. You know where your property line is. All I am hearing is “whining.” Mr. Heffernan is right – what about all those things he mentioned. Have you told the State of New Hampshire that you are doing business in Pittsfield? What about Workers Compensation? You are not finding things you need to find out in order to have a business. How can we trust you? You are not open with the Town but are doing your own thing.

Ed Vien: I think the Zoning Board has the authority to approve this. The reason that the Board is in place is so that they can apply it to each case individually. Each case is unique in itself and allows the Board to make the judgment. Zoning Ordinances cannot cover everything. You have the ability to grant what is fair and just. You do have the authority to do this. Zoning Ordinances differ from town to town. It is a different type of business. I had the opportunity to tour the facility. It is clean and quiet. I have more problems with neighbor’s pets than this issue.

Louis Houle: This is next to my property and I am a little concerned. It has been there a long time. They do things the right way. There is insurance on the property. They deal with E-Bay and have the opportunity to grow. They are not trying to hide anything. They are trying out their supplier. They took a chance.

Why not consider giving them a Variance temporarily. You have the ability to say NO. Give them time to establish the business. Pittsfield needs the business. Barry Podmore started the same way with the same growth pattern. The impact is so minor that there is no issue there. To move to another location entails a lot of cost. (CD) The Variance follows the property not the owner.

Atty. Hodgdon: You can put conditions on the Variance; talk to your legal counsel.

Pam Taylor: I am okay with the number of cars there. My objection is how they established the business. They did not bother to look into the Town ordinances and started without warning.
(CD) We are here to hear as much as we can and make a fair and just decision for the entire Town. We have a Master Plan to be followed and the Zoning Ordinances in effect. We need to figure out the best plan for the Town.

Atty. Hodgdon: The purpose of the Zoning Board is handling these unique instances and applying it to the property. There are no negative impacts on the abutters. We apologize that we did not come here sooner. Fire Codes and the other issues mentioned are irrelevant to your determination. One factor as to why they want to stay in close proximity is because of serious security issues. A mere alarm is not sufficient but this is something they do not choose to elaborate on or advertise.

Close Public Input

Board Discussion:

(SA) What kind of timeframe would be needed? Mr. Cortese: About one to two years. Our supplier is happy with us and we are looking to grow. (SA) It is so outside of the Home Occupation number. Do they have to go through Planning? (CD) No, it is a Home Occupation. It is all our decision. (SA) A while ago there was a petition to abolish zoning which did not pass. Why do we have the Zoning Ordinances if we do not follow them?

(PH) If we give the Variance Carte Blanc then they can do what they want. (CD) Cars/parking is not the issue. The issue is the number of people in the Home Occupation.

Polly Cortese: Give us a chance. We are at the crossroads. This could be the start of something big or maybe nothing. (CD) We do not take this lightly. Joseph Cortese: I am asking the Board to take a leap of faith and go on what you see before you. It all comes down to whether you want to do it. Polly Cortese: When we do progress, it will be in Pittsfield. (CD) I understand the predicament you are in and understand it wholeheartedly. (PM) We want you to stay with us and be a business.

(PH) I am a businessman too and your business is none of our business. The Rural Zone should say rural and the Commercial Zone should say commercial. You are just in the wrong place. It is not right for us to vary from our Ordinances – it denotes four people. I would like to see you stay in Town but not where you are now. (PM) We can make exceptions.

Mr. Cortese: Are you asking me to downsize and get rid of nine people? (DB) I do not want to be responsible for your business decisions but want to follow the Zoning Ordinance. What you do with your business is your business. We have to be compassionate but we have to separate from that decision. Mr. Cortese: The decision is being made for us. Is Board saying you are uncertain you can make the decision? We are talking about single mothers. We are talking about jobs in Town.

Polly Cortese: We are surrounded by commercial enterprises. Dowboro Road is a very, very busy type road. Mr. Cortese: Provide us with some latitude say for six to twelve months. If we have to move tomorrow, we cannot afford the security and might lose our supplier. Work with us, don’t let us down.

(PH) I still do not see it. I feel bad about this but your business has no bearing on this or on our decision. (SA) We have to go with the zoning on this.

Louis Houle: We are talking about six months. It would be a good thing for Pittsfield. The EDC should be jumping all over this. Six months is not a long time; give them a chance to get established. To just shut them down seems silly. (CD) That is a creative thought and a valid thought. Louis Houle: Towns need to learn to change and gain businesses. He noted businesses such as Kentek, Barry Podmore and Rustic Crust.
Atty. Hodgdon: What if we tabled the application for now. (CD) That did occur to me.

Mr. Cortese: Pittsfield needs to send a message out into the world about these kinds of businesses. Atty. Hodgdon: The Board can table this which would be an option and watch what happens in four to six months. (CD) I would be willing to table this for a month or for whatever time Board would need to revisit it. I would not want to table it for a long period of time.

(PH) How about you come back in thirty days with a plan in place where you want to be. We are being asked to give you Carte Blanc. Mr.Cortese: Can you make it sixty days? Board did not feel comfortable with tabling this matter for more than thirty days. (CD) We would want to research some case laws. Jesse Pacheco: Table it for one month to allow for some research. It is up to the Board and you have the right to table this. I do not see it being a problem for thirty days – longer may be a problem.

(CD) I would like to research it. If we do not have the information we want within thirty days, we can table it for an additional period of time. As a Board, we need to stay on top of this.

Joseph Cortese: I look would forward to showing you the facility. (CD) The question here is going beyond our Zoning Ordinances. We will try to work with you the best we can. Joseph Cortese: I am grateful I do not have to let nine people go tomorrow.

(DB) Motion to table Variance for Joseph and Polly Cortese, 51 Dowboro Road, Pittsfield, NH 03263 to allow for further research and review on June 12, 2013 at 7:00 P.M. (PH) Second. Carried 5-0.

(CD) We would like to stay within the Ordinance as well.

Break: 9:10 P.M. Resume: 9:15 P.M.

ITEM 6. Members Concerns

None.

ITEM 7. Public Input

Jesse Pacheco: I am concerned because there are two new Zoning members on Board. We used to go to seminars and maybe we need to find out about that.

(CD) We will call LGC to find out what we can/cannot do.

Jesse Pacheco: It would behoove Board to do research as to what they need to do. The way Zoning Ordinances are written, it allows Home Occupation to have up to four (4) people. (CD) Home Occupation is not a business. We also need to coordinate with the Board of Selectmen and Planning Board as to how this impacts the Town. (CD) Variance goes with the property. Jesse Pacheco: Giving them a Variance for home internet service constitutes a change of use.
Jim Pritchard: It really is not a Planning Board issue. There may be some confusion because they are asking for a Variance with definition. If the Home Occupation factor was not a part of the Variance, it would be different because Zoning Ordinance defines Home Occupation. For 2-13 employees, an individual could come in and do something else. I agree with Jesse that you should table this. (CD) I am comfortable with tabling it for thirty days.

Jesse Pacheco: It is a tough decision; we are talking about their livelihood. In thirty days the Board can have an answer and maybe in thirty days, he will have another place. (CD) We will discuss with Board of Selectmen, Planning Board and LGC. Jesse Pacheco: We can call LGC and discuss with Matt Monahan also and build on what you have.

Jim Pritchard: It is important that you have the time to make a right decision. Snap judgments end up being wrong. Jesse Pacheco: Your decision is a hard one to make. Pat Heffernan: He is not doing his employees any favors by sequestering his people on the hill. He is dragging his feet on this.

ITEM 8. Adjournment

(SA) Motion to adjourn. (PH Second. Carried 5-0.

Meeting adjourned at 9:40 P.M.

Approved: May 22, 2014

________________________ ____________________
Carole Dodge, Chairman Date

I hereby certify that these Minutes were recorded by me on May 8, 2014, transcribed and publicly posted on May 15, 2014.

__________________________________
Delores A. Fritz, Recording Secretary

No Attachments
Olympus: 2.20.01