Paul Zimmerman Implies He May File Suit Against Tuftonboro Over Decision by Zoning Board

In a letter to Mark Howard, chairman of the Zoning Board of Adjustment, local developer Paul Zimmerman today* implied if the town does not reimburse him for $22,586.00 in expenses he may sue the town. Zimmerman incurred the expenses developing site plans to build a self-storage facility on the property next to the fire station at 181 Middle Road (Route 109A). Continue reading “Paul Zimmerman Implies He May File Suit Against Tuftonboro Over Decision by Zoning Board”

ZBA Denies Zimmerman Hearing for Second Self-Storage Application

The Zoning Board of Adjustment voted 4-1 this evening to deny a hearing to Paul Zimmerman and his associates. Last month the ZBA voted to deny Zimmerman a special exception to the medium-density residential zoning so that he could build a self-storage unit on Middle Road (Route 109A) next to the fire station. The board found last month a self-storage facility would alter the essential rural character of the neighborhood irreparably.

Zimmerman could have appealed the decision, but instead submitted a new application for a special exception. However, the ZBA determined in tonight’s meeting that, based on the New Hampshire Supreme Court’s decision in Fisher v. Dover, 120 N.H. 187 (1980), the new application was not “materially different in nature and degree” from the first application.

Paul Zimmerman Files New Application with Zoning Board of Adjustment

zimmerman-new-application-notice
Notice received by Susan Rogers. Click to see larger image

The Zoning Board of Adjustment, confirms that the ZBA has received a new application from Paul Zimmerman for a special exception to medium density residential zoning to construct a storage facility at 181 Middle Road.

Zimmerman’s application for a special exception two months ago and was denied by the board based on their belief that the storage facility would alter the essential rural character of the neighborhood.

Mark Howard, the chairman of the Zoning Board of Adjustment, explained in an email to me that the board will have a meeting on November 22nd and 7PM at the Town House. The first 20-30 minutes of the meeting will be for the board to determine if the new application is “materially different in nature and degree” from the first application that was denied.

At issue is a state law known as “Fisher v. Dover, 120 N.H. 187 (1980)” which prevents an applicant from subsequent applications to a ZBA unless the new application is materially different. This legal rule is more commonly referred to as “One bite at the apple”. When we run into something like this, the advice we have been given by NH Municipal Association attorneys is to hold a public meeting, determine if the new application meets the threshold, then proceed (or not).

If the board determines the new application is not materially different, then they will deny Zimmerman a public hearing. If the application is materially different, then they will immediately open up a public hearing.

A storage facility in the middle of town would seem to be in stark contrast to the wishes of the vast majority of residents who responded earlier this year to the Planning Board’s Master Plan survey, which had a high return rate with 764 households participating.

The Planning Board has not finalized their report from the Master Plan Survey, but here are some of the raw numbers.

Survey takers were asked, “What do you like most about Tuftonboro?” And instructed to select their top three. “Scenic beauty” received the most nods with 22%, followed by “quiet lifestyle” with 21%, and “favorable taxes” with 16% of respondents agreeing.

Tuftonboro residents’ priorities are even more clear when asked, “What are the three most important issues facing Tuftonboro in the next 10 years?” 23% say “property taxes,” 18% say “development pressure,” and 15% cite “loss of rural character” as their top concern.

Zoning Board Denies Special Exception for Self-Storage Facility

In a 4-1 vote, the Zoning Board of Adjustment denied Paul Zimmerman’s application for a special exception to the zoning ordinance. The board determined that Zimmerman, through his agent Jeff Lewis, failed to prove that the project would not change the essential nature of the neighborhood.

The board was unswayed by a new plan presented by Lewis to build half as many units as Zimmerman had originally proposed. Several residents pointed out that there would be nothing stopping Zimmerman or any future owner from adding more units at a later date.

Several residents spoke against the proposed project, while Steve Hunter spoke in favor of the project. Hunter is the current owner of the property and was hoping to sell it to Zimmerman.

Mark Howard, the chairman, was the lone dissenting vote. Alicia Gettman, Tom Swift, Tom Wood, and Bob Theve all voted against the special exception. Wood stated he thought the self-storage facility would change the “rural, residential nature of the neighborhood.” Theve said the project would be “incompatible with the town’s master plan,” citing the “overall future” negative changes to the neighborhood that would occur. Swift said the facility would be “out of character with the nature of the road.”

Zimmerman has until November 4, 2016 to file an appeal if he wishes to do so.

(The Zoning Board members are pictured left to right: Tom Wood, Alicia Gettman, Mark Howard, Bob Theve, Tom Swift. Jackie Rollins, the board’s secretary, is seated with her back to the camera.)

Zoning Board to Vote on Self-Storage Facility

The Zoning Board of Adjustment will hold another public hearing tonight at the Town House at 7PM to decide whether to grant a special exception to Paul Zimmerman to build a self-storage facility with at least 100 units next to the fire station on 109A.

181-middle-road-self-storage

Zoning Board member Bob Theve is also a member of the budget committee, which has a meeting tonight at 6:30 (at the Town Office). Reached on the phone yesterday, Theve said he would attend the budget committee for about 25 minutes and then go to the public hearing.

Whatever the decision of the board tonight, state law allows for an appeal within 30 days (starting the day following the vote of the board) either from the applicant (if the special exception is denied) or from “any person directly affected” (if the special exception is granted). The statute does not define the narrowness of the term “directly affected.” Certainly abutting property owners would qualify.

Zoning Board Grants Continuance to Zimmerman

No decision was made at last night’s Zoning Board of Adjustment public hearing about the proposed self-storage unit project at 181 Middle Road next to the fire station. The board will reconvene on October 4th at 7PM at the Town House to hold a vote.

The board chairman, Mark Howard, began the public hearing by explaining that the petitioner — Paul Zimmerman, through his representative — was coming before the board asking for a special exception, not a variance. A variance is required when the current zoning specifically prohibits a proposed use for the property. However, Article 3.6.F13 of the Tuftonboro Zoning Ordinance allows the construction of “Storage Buildings” in medium density residential areas by special exception.

Therefore, the use is permitted if the property owner can demonstrate that the use will meet five specific criteria. Howard confirmed to me that if the use does meet the criteria, then the the law requires that the board must grant a special exception.

The criteria are:

Special Exceptions shall meet the following standards:
1. Standards provided by this Ordinance for the particular use permitted by special exception.

2. No hazard to the public or adjacent property on account of potential fire, explosion or release of toxic materials.

3. No detriment to property values in the vicinity or change in the essential characteristics of a residential neighborhood on account of the location or scale of Buildings and other structures, parking area, Access ways, odor, smoke, gas, dust, or other pollutant, noise, glare, heat, vibration, or unsightly outdoor storage of equipment, vehicles or other materials.

4. No creation of a traffic safety hazard or a substantial increase in the level of traffic congestion in the vicinity.

5. No excessive demand on municipal services, including, but not limited to, water, sewer, waste disposal, police and fire protection, and schools.

6. No significant increase of storm water runoff onto adjacent property or streets.

The board was short a member last night, and without an alternate, there were only four members present. Zimmerman therefore had the right to ask for a continuance, since he would require three yes votes to obtain a special exception. His representative opted to go forward with the presentation of the construction plans. However, the board voted at the end of the hearing to issue a continuance and reconvene on October 4th at 7PM in the Town House, in order to give Zimmerman’s team time to respond to several questions and concerns that were raised both by the board and members of the public.

Zimmerman constructed the self-storage units at Clark Plaza in Wolfeboro last year, and the proposed building at 181 Middle Road would closely resemble the Wolfeboro design.

storage-1
Clark Plaza Self-Storage in Wolfeboro

Bob Theve, a member of the board, asked what would happen if someone renting a storage unit put hazardous material in their unit. He was specifically concerned that the town be indemnified in the event.

Zimmerman’s representative, an engineer with Allen & Major Associates, Inc, stated that there would be no office on site and no security gate. The rental agreement would prohibit storage of hazardous material. Several residents were concerned that there would be no enforcement of that clause, however. They pointed out that if there’s no one on site to manage the facility, and if renters can come at any time, including the middle of the night, then there would be no way to prevent someone from storing liquid propane canisters, as one resident suggested as an example. LP canisters are very common and are used for gas grills, for instance.

Faye Friedrich, of Middle Road, stated that she is a supporter of private property rights, which is why she supports the new gravel pit across from her own property. However, she read from the town’s Master Plan, put out by the Planned Board, which calls for maintaining the character of the town. It was Friedrich’s opinion that self-storage units, especially corrugated steel structures as proposed, would change the nature of the neighborhood significantly. “Do we want to be Route 16 in Ossipee?” She asked. Adding, “No offense to Ossipee.”

Keith Rogers, whose property is directly across Middle Road from the proposed project, stated his concerns in reference to criteria #2 in the above list that there would be “no control of what goes in and what comes out.” He also contended that Zimmerman would have to salt the driveway and surrounding areas in the winter to maintain a safe environment for the people coming and going, and that the salt would run off the property, which has a steep incline, across the road, and onto his property and into his and his neighbor’s well (see criteria #6 above). Zimmerman is proposing to use porous asphalt on the driveway, and Rogers stated he is experienced with that pacing material and that if you use sand on it then it will clog very quickly and no longer be porous, thus you must use salt. Rogers was also concerned about lighting, saying that the light from the fire station was already a nuisance.

Resident Sarah Matlock requested an artist’s rendition of the proposed buildings from the point of view of the street. Rogers was also concerned that the building, sitting on a hill, would be in plain view.

Zimmerman’s representative stated the belief of the development team that the project would not negatively affect property values (criteria #3 above) because the area is already a mixed use, with the fire station next door. The abutting property owners in attendance strongly disagreed. I gave my opinion that a self-storage facility would severely negatively affect property values, and shared with the board that my opinion was based on my experience as a residential real estate agent in New York City for nearly eight years.

A storage facility of the proposed size (more than 100 individual units) would be expected to receive on average 27 visits per week day by unit renters, or 54 “trips” to and from the site. Zimmerman’s representative stated this was low-traffic (see criteria #4, above).

Public Hearing: Self-Storage Units Next to Fire Station on 109A

The Zoning Board of Adjustment will hold a public hearing on September 20, 2016, at 7PM at the old Town House on 109A.

Paul Zimmerman is seeking a zoning variance special exception to the zoning ordinance to construct four self-storage buildings on three acres of land next to the fire station on 109A, according to a letter sent to nearby property owners alerting them to the public hearing, and notices were displayed at the Melvin Village and Center Tuftonboro post offices, and published in the Granite State News. The property is currently zoned residential and requires a special exception for use for storage buildings.

This is the plan for the proposed storage buildings next to the Fire station:
proposed-self-storage-109a-tuftonboro
The building outlined in red sits closest to the road and is proposed 160 feet long, with up to 20 storage doors. There would be another building directly behind it, and then two buildings up behind on the hill.

Chris Sawyer, the chairman of the planning board, stated in a post on Facebook that if the ZBA grants the variance to the zoning, the Planning Board will still have to sign off on the project.

Correction: this post originally stated Zimmerman needed a variance instead of a special exception. See this post for the difference between the two: Zoning Board Grants Continuance to Zimmerman