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Zoning Board of Adjustment Warner, NH Meeting Minutes of July 11, 2007 Members Present: Martha Thoits, Chairperson, Dennis Barnard, Martha
Mical, vice chair, alternate Rick Davies, alternate Mike Holt, Joanne
Hinnendael, alternate Janice Loz and Deborah Freeman, recording. Not present: Eric Rodgers and alternate Ted Young. Case 09-07: Variance – Irving Oil Corp. regarding commercial
property located at 32 Route 103 West, Warner, NH, map-lot: 14-8, C-1
commercial zoning district. Requesting
a variance to the terms of Article XII, Section A. 2 of the Warner
Zoning Ordinance. Propose
to install new LED price changers into the existing internally
illuminated Pylon sign. Carolyn Parker representing Irving Oil, stated they are looking to
remove and replace the existing price panels on the existing internally
lit pylon signs and replace them with LED price changer. This will allow Irving to change the prices from within the
building, eliminating the safety issue of people going out in the
weather to change the prices manually.
This is not a flashing sign. With respect to the concern of the brightness of the LEDs, included
are photos of the sign at night. They
do dim in the evening hours. There
is an existing LED on the property, around the overhead canopy that is
larger than the ones proposed for the signs. Ms. Parker read for the record the variance questions submitted in
writing with the application: A. No diminution (decrease) in the surrounding properties would be
suffered: There
would be no decrease in the value of the surrounding properties since
the existing pylon sign is already internally illuminated by a previous
variance granted by the board (reference case #07-06).
The LED price changes do not increase the existing illumination
level emitted by the pylon sign. The
change over to LED price changers will not have any adverse impact on
the surrounding properties. B. Granting the variance
will not be contrary to the public interest: LED price changes are easier to read both during the day as well as at
night. The LED prices
changes are designed to be brighter during the day but become less
intense at night. Since LED
lighting is not designed to light up the surrounding area (unlike a
typical fluorescent bulb) there would be no increase to the illumination
levels currently emitted by the pylon.
The existing overhead canopy currently has an LED tube installed
in the center of the blue fascia. The
canopy LED is significantly larger than the proposed LED price changer,
and if you view the canopy LED at night, you will notice that the light
emitted by the LED is not transferred to the surrounding fascia. C. Denial of the
variance would result in unnecessary hardship to the owner seeking it: Irving
continually works hard to improve the overall appearance of their
facilities and improve work place safety.
The LED price changer is being installed at many of their
locations throughout New Hampshire, Maine and Massachusetts and
consistency from one location to the next is very important to Irving.
In addition, the LED price changers can be updated remotely from
inside the convenience store eliminating the need for their employees to
manual change the prices using a ladder/pole.
Attempting to manually change the prices is often as is required
due to the ever changing fuel prices increases the risk of injury to
their employees. This is
especially true during periods of inclement weather. D. By granting the
variance substantial justice would be done:
The use of LED illumination
has been previously approved by the town for the overhead canopy on the
site. The LED price
changers (a fairly new technology) would have minimal impact to the site
and surrounding properties based on their size and intensity.
The LED price changers will help to improve both day and night
visibility and will eliminate several safety concerns associated with
manually changing the prices. E. The use must not be
contrary to the spirit of the ordinance:
The requested variance will
not contradict the intent of the Zoning bylaws since the site is in a
business district and the bylaws do not contain any restrictions for the
use of LED. Additionally,
internal illumination of the pylon sign has been granted by a previous
variance, along with the overhead canopy LED light tube. Ms. Mical asked if there were any LED price signs in NH; Ms. Parker
responded she did not know. Ms.
Mical commented there is an LED at a commercial site in Franklin (Citgo
station) and it is not pretty, rather distracting. Ms. Parker responded that she did provide photographs.
Mr. Davies inquired how high are the current letters off the
ground {they are changed with a pole}. Ms. Hinnendael stated Irving has come before us 3 or 4 times for variances that were not included in their proposal to the Planning Board. The people in the town have obviously rejected fluorescent-like signs. Ms. Parker responded that it is not part of the ordinance, the ordinance does not address LED - Technology is moving forward. Irving already has a variance for internal illumination. The second time Irving came before this board it was for a taller sign, which was rejected. Hinnendael stated it is already a variance as extra signage, this board allowed a spotlighted sign on the roof – the ordinance allows one sign for business, we allowed for much more signage, four, in consideration that it is for a gas station. Ms. Parker responded that this is not an additional variance, it is a variance that we already have, we want to remove the two panels and replace it with new type of a sign. We are not increasing the square footage. Ms. Mical commented you are changing the type of sign. Parker responded LED is not neon. Hinnendael commented that the Planning Board recommended the LED around the canopy. Comments have been received regarding the brightness, it being perceived as fluorescent. Ms. Parker argued LED is already allowed on the property. Hinnendael responded that they are two different things; a canopy lit the way you wanted and a brighter lit price sign. Member asked the question how high is the sign – response was they use a pole from the ground. Ms. Loz asked if it scrolls or flashes. Parker responded these will not scroll or flash; the illumination will be reduced as the whole back of the sign is not lit just the numbers. Mr. Davies stated on item c., hardship, use variance asking “why
would the zoning restrictions apply to the property interfere with
reasonable use of the property, considering the unique setting of the
property in its environment. Is
there anything unique that would require additional lights?
Is there anything that would require the sign prices to be
changed remotely versus manually? Parker
responded they are trying to improve the site and work conditions with
the newest technology changes. Chair Thoits opened the public hearing. Phil Reeder, former member of the Planning Board, stated he was one
of the strongest advocates to allowing the LED around the canopy.
I am here tonight because the Warner Business Association
concerned about how the town looks.
LEDs are monochromatic and will appear much brighter than other
lights, affecting the eyes rather significantly.
I am here because putting in an electronic sign to change the
prices, on the pro business side it is appropriate and good to have.
On the other side of it, it is electronic and electronically
switchable, it can be made to scroll - the problem I see if we open up
the door, a number of signs can pop up.
We do have a size variance – it is an electronic sign – what
is flashing once every 3 days, once every 3 seconds?
I ask the board to turn it down – concerned with the precedent
is setting for potential of the area being overwhelmed with “junky”
electronic signs. Until
there are ordinances covering electronic signs, my personal feeling is
that the ZBA do not accept it. Carolyn Parker stated they already have an electronic sign; they just
want to upgrade it. Chair
responded that the variance to allow the existing electronic sign was
based in part on the fact that it was grandfathered. Ms. Hinnendael: In the
site plan review for the Planning Board, did Irving go to the Planning
Board with a lighting plan? The
Planning Board approves lighting as part of the design process. It is believed by Mr. Reeder and Ms. Parker that a lighting
plan was part of the plan review by the Planning Board. Mr. Reeder suggested using caution as a result of recent activity in
Concord relative to LED signs. Chair Thoits closed the public hearing and reopened the meeting. Hinnendael: One comment
about the canopy, according to the Office of State Planning, if those
signs are taken down and changed they are not grandfathered, will need
to be reapproved. We
approved it prior because it was part of the lighting plan approved by
the Planning Board. Mr. Davies stated going back to the statement on the ordinance; the
sign is quite readable currently so it would be difficult to justify a
hardship. I agree with Mr.
Reeder if allowed in this case, it would set a precedent which may not
be advisable before an ordinance is defined. Chair Thoits stated we need to decide if we agree or disagree with
the statements, if we disagree with any one of the statements we are
forced to deny. As far as
statement A goes, that is fine; statement B is questionable. Regarding statement C and E, Chair Thoits and Mr. Davies
voiced these statements were not met. Ms. Mical made a MOTION to deny the variance for LED lit prices on
the sign that is currently internally lit.
A. Probably does not
have any diminution in value of surrounding properties.
B. Since the only
LED sign found is a Citgo in Franklin it is harder to read and has the
effect on the eyes like neon lights.
We asked for a site to review an Irving LED sign, unfortunately
there is none at this point in time.
C. Since they use a stick to change the numbers, not a ladder,
there is no safety issue. D.
We have two gas stations, the current Irving sign is very visible
and does not have to stand out anymore because after 11 p.m. they are
the only choice in town. While
it is true the zoning ordinance does not restrict LED specifically, the
spirit of the ordinance is as little lighting as possible and LED does
not meet that. Motion seconded by Ms. Hinnendael. Mr. Davies suggested any “I’s” be removed from the motion.
Ms. Mical agreed to the change in the motion.
Ms. Hinnendael seconded the changes. Chair Thoits called for a vote of the board, a yes vote will deny the
variance to have LED lighting at the Irving station, a no vote will not
deny. Board unanimously
voted to deny the variance (5:0). Miscellaneous and Correspondence Court decision: Chair Thoits read cover letter from Gallagher, Callahan & Gartrell: Enclosed is the Court’s decision in Warner
Citizens for Smart Growth, et als v. Town of Warner.
As you will see, it is a mixed decision which accepts our
argument that the Warner Citizens group lacks standing to maintain this
appeal, although the Loz and Deschenes have individual standing to
appeal; concludes that the record is insufficient to determine whether
the ZBA had sufficient basis to grant the special exception from the
height limitation or the variance from the minimum setback limitation;
but affirms the variance fro the square footage regulation under the
Ordinance. As to the height
limitation and the setback limitation, the Court remanded the case back
to the Board for clarification. The
Court did affirm, however, that the Board correctly viewed the height
limitation as an “area” variation, and not a “use” variance. I suggest that we await the action, if any of the other parties before proceeding further with this matter. Ms. Loz as an abutter and Mr. Davies as a previous member of the
organization that appealed the ZBA decision, will need to recuse
themselves from these discussions with the attorney. Chair Thoits stated Attorney Gartrell suggested we await action.
We need to talk with Don Gartrell. Board will plan to meet on August 8th to meet with Town
Counsel Gartrell at 6:00 p.m. and regular meeting if required at 7:00
p.m. Junkyard Certificates Chair Thoits read a letter and two junkyard location certificates.
Ms. Mical stated all this is to certify the location as part of
the license renewal process - The Board of Selectmen visited both sites.
Board members asked questions about this process which Ms. Mical
clarified is an administrative function and has been signed in the past.
Ms. Mical made a MOTION that the chair sign the location
certificates for 95 Chemical and 454 Couchtown Road.
Mr. Barnard seconded the MOTION.
Ms. Hinnendael abstained. Ms.
Hinnendael read RSA 236:125 into the record [a portion follows]…the
owner shall furnish the local governing body the information as to
location which is required in an application, together with the license
fee, and the local governing body shall apply for a renewal…
MOTION passed unanimously to ask the Chair to sign the two
location certificates. Minutes: June 13, 2007 meeting Ms. Mical stated her dislike for using the last name without a
salutation. Page 5, Acting Chair Mical may have incorrectly asked all members to
vote relative to Sheehan case. Ms.
Loz suggested Ms. Freeman re-listen to the tape and provide more detail
in the minutes of the rationale behind why Mrs. Rolfe was approved and
Mr. Sheehan denied a rehearing, both relative to a two family.
Ms. Loz asked that the minutes indicate the rationale was related
to the amount of floor space - the Chair stated it can only be in the
minutes if it is on the tape. The
minutes will be on the next agenda. Variance Forms Mr. Davies’ variance application changes were distributed.
Ms. Mical suggested it would be better to separate use variance
questions from area variance questions on separate sheets and possibly
at the top of the page explain what the variance is for or read the RSA.
It was also suggested that
the cover sheet provide a space for the applicant to indicate which
variance is being requested. Mr.
Davies agreed to make the suggested changes and forward the forms to the
ZBA office electronically where Ms. Freeman will add the town seal.
It will come back to the board for approval before being
forwarded to the webmaster. Signs: Chair read a letter to the Board from Dear Board Members, Clarification is needed regarding the
following sign regulation which states “In the business district signs
shall be permitted totaling not more than thirty-two (32) square feet in
surface and/or image area, per business.”
Question, in the case of a double sided sign, does the total of
the surface and or image area refer to adding both sides together each
should be sixteen (16) square feet.
Please advise. Ms. Hinnendael stated I believe we have counted both sides together to equal the square footage. Board briefly discussed examples that exceed this requirement; this requirement is per business. Board reviewed the ordinance sign regulations. Board concurred that the total square foot area of the sign includes both sides. A freestanding sign equal to combined twenty-four (24) square feet or less both sides, per business. Ms. Mical observed that the date of the August meeting was changed on
the website, but the date of submission was not. Ms. Hinnendael made a MOTION to adjourn, seconded by Ms. Mical –
meeting adjourned at 8:18 p.m. Respectfully submitted, Deborah McGlew-Freeman Minutes approved August 8, 2007
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