The Zoning Board of Adjustment (ZBA) has approved a variance on a controversial lot merger, while warning abutters that several of their concerns are not in its purview.
The ZBA conducted a second hearing on Crom LLC’s petition to allow the consolidation of three lots on Windham Road, which would result in two residential buildings on one lot. The variance is to Article III, Section 165-8 of the town Zoning Ordinance, which would result in more than one residential building on the consolidated lot.
At issue is a single-family home on the third lot, 117 Windham Road, which has yet to be purchased. The original lot at 125 Windham Road contains a self-storage business, including an office with an accessory apartment above it. Crom LLC owner Edward Smith wants to keep the single-family home and rent it out. He has also purchased the property at 119 Windham Road and plans to build a 44,000-square-foot climate-controlled storage facility.
Maureen Rose, an abutter at 115 Windham Road, has criticized the project in previous meetings, noting that the new storage building would affect her privacy, quality of life and the wildlife in the area.
John Cronin, a Manchester attorney engaged by Smith, read the five criteria for a variance. The variance would not be contrary to the public interest, Cronin said, because the three parcels are zoned Industrial V and with the merger, the I-V zone in that area would be completely built out.
The variance would be in line with the “spirit of the ordinance” because the two dwellings would be 600 feet apart. “They have separate wells and separate septic systems,” Cronin said.
Cronin said “substantial justice” would be done because the area is zoned industrial. To require the single-family home to be torn down to meet the zoning requirement would be an injustice, he said, because the homes are 600 feet apart.
Cronin also said not granting the variance would produce an unnecessary hardship on the property owner because the house and apartment existed before the area was zoned I-V. He said the merging of the parcels was a reasonable use and better than three separate uses.
Engineer Eric Mitchell reviewed the project. “There is an existing self-storage unit at 125 Windham Road,” he said. “Crom LLC purchased the piece to the north, 119 Windham Road. They have a purchase and sales agreement for 117 Windham Road, which is owned by Gregory Leduc.”
Mitchell said in initial talks, Crom LLC was looking only at purchasing 119 Windham Road. In talks with the Fire Department and the Technical Review Committee, it was determined that fire access was needed, and he agreed to purchase 117 Windham Road. The regular access to the three parcels will remain the current driveway, which will be extended to go around the property. A locked emergency access for fire and police will be established at the northern end of the property, he said.
Mitchell said, “The self-storage is a less-intensive use than what could be there, given the zoning.”
The accessory apartment above the office space was built in 1984 and the single-family home in 1996, he said.
Mitchell said allowing the new building will benefit the neighbors, because it requires a cistern, and the 30,000-gallon cistern would be available to the town for firefighting.
Cronin said in 30 years of legal work in land development, he had become convinced that, “In New Hampshire, you have the right to do what you want with a piece of property, subject to the zoning ordinance.”
Is the new development “out of character” for the neighborhood? Cronin didn’t think so. “It fits what the zone wants,” he said.
Keeping the residential building “works for the applicant,” Cronin said.
Brian Healy, a broker with Berkshire-Hathaway, was also part of Smith’s team that night. When asked if there would be no detrimental impact to surrounding property values, Healy said, “I agree.”
“That’s a little vague,” ZBA chair Lynn Perkins observed.
Healy took the microphone again to say, “This development would not change the makeup of the neighborhood.” And if the structure is removed, it will remove the buffer for Rose, he said.
Rose had challenged the height of the building, but Vice-Chair Allan Virr observed, “It is a single story, and 14 feet at the highest. That’s less than a residential two-story home.” The building is spread out, he said, “but not all that high.”
Abutters were asked to comment. Ernie Brown, who rents the single-family home, said he was in favor of keeping the house. He and his wife moved in a year and a half ago, he said, because it’s near grandchildren in Litchfield and Hudson.
“We would like to continue to live there,” he said. He would like to see a buffer between his home and the industrial area, but if that is accomplished, he said, “it works for me.”
Rose was the principal speaker in opposition to the project. She read letters from her neighbors, including one from Mary Coutu of Town Drive who said, “I moved here because I wanted to live in a quiet, residential-style neighborhood.” Coutu observed that nobody knew what was going to be stored in the self-storage units and the merchandise could be detrimental to the neighborhood.
“I am concerned about the impact on property values and wildlife,” she wrote.
Rose said it wasn’t the building per se that concerned her, but the loop driveway. She worried about the noise and lights from the extra cars using the loop to get to and from storage.
Is denying the variance an “unnecessary hardship”? Rose didn’t think so. “He already has ‘reasonable use’ of the property,” she contended. “He has not purchased the third lot yet, so he’s not facing a financial loss.”
The disputed house is a grandfathered residential use in an industrial zone, Rose said. “By granting the variance and merging the lots, all three lots become industrial use,” she said.
Virr countered, “It’s already in the industrial zone. It is a legal non-conforming use.”
“He has choices, options,” Rose said of Smith. “I don’t.”
Rose said if the variance were granted, it would affect her property values. “The driveway is 50 feet from my lot line,” she said. “The existing trees and vegetation will be replaced by a massive storage building. There will be increased sound and light, and it will bring strangers into my neighborhood.”
“The developer’s financial gain,” Rose said, “is not a strong enough reason for a variance.”
Perkins said Rose should address some of her concerns with the Planning Board. He and Virr told her that buffer zones are not the “purview of this board.”
“You need to understand the repercussions of this decision,” Rose told the board, to which Virr responded, “The repercussions were set in motion years ago.”
Lee Bernard, an abutter at 1 Town Drive, asked the board, “Do you know what you’re going to do?”
“No. That’s why we’re sitting here,” Perkins responded.
Bernard said he was opposed to the development because it was about profit margins versus quality of life. He did a site walk with the Planning Board and said he told them, “You will all go home. In the end, this is our neighborhood. We’re left with everything.”
In his closing statement, Mitchell reiterated that the variance was about having two dwelling units on one lot, both homes were already there, and the area was zoned industrial.
“We are not asking to put a self-storage facility in a residential zone,” he pointed out.
Code Enforcement Officer Bob Mackey reminded the board and abutters that many of the issues are Planning Board issues.
“We don’t want to get into back-and-forth,” Perkins said, reminding the group that it was almost 10 p.m.
Virr said the spirit and intent of the one-home, one-lot ordinance was to prevent overcrowding. With 600 feet between the rental house and accessory apartment, there wasn’t much danger of that, he said.
Virr advised the abutters to attend the Planning Board meetings regarding the project in order to work out their issues with buffer zones. “That is not our purview,” he said.
The board added one condition to the motion, that the residential structure on the north lot remain residential. “Otherwise, he’ll have the freedom to tear it down,” Perkins said.
The board voted 4-1 to grant the variance, with Donald Burgess voting in the negative and Perkins, Virr, Heather Evans and Teresa Hampton in the affirmative. Burgess said he voted no because he thought the variance was against the spirit of the ordinance and the project would diminish property values. Virr said the spirit and intent of the ordinance were honored because the density of residential units was a “moot point” with the house and apartment 600 feet apart.
“The spirit is honored,” Perkins agreed.