Planning Board Says No to Zoning Ordinance Change

Tensions ran high during the Planning Board meeting on Wednesday, July 11, when the board spent over an hour and a half on one agenda item: a public hearing for applicant CC Properties, LLC, requesting a zoning amendment to amend the Londonderry Zoning Ordinance, Section 2.2 to allow a financial institution, not exceed 5,000 square feet, with a single drive-through window, to be allowed in the C-III district.

The applicant was represented by Kenneth Gould, owner of Gould and Gould Law Offices, attorney Cynthia O’Neill, and Richard Flier, the new owner of the property on 2 Litchfield Road.

Town Planner, Colleen Mailloux, began by explaining that while it was a specific request, it relates “To all properties within the C-III district and adding this use within all those properties.” The board may not delegate zoning to any one plot or area, and an amendment applies across all C-III districts.

Flier, and therefore CC Properties, LLC, expressed intent to build a new building next to the historic building to accommodate potential renter Merrimack Federal Credit Union, who also possesses the mortgage on the property. By adding this new building for the Merrimack Credit Union, including a drive through, Flier hopes that the rent generated may provide him with the finances needed to make repairs on the property.

However, the plan includes a number of hurdles. According to the Londonderry Zoning Ordinance Section 2.2, neither a financial institution nor drive-thru window as an accessory are currently permitted in a C-III district.

Mailloux explained that, “The C-III district was primarily intended for light business, professional and office uses only, and drafting the zone was intended to provide a transitional or buffer zone between the larger, more intense commercial uses, and the residential zone.”

“Based on the currently permitted uses in the C-III zone, [including] professional office, religious facilities, funeral homes, group child care centers, and private schools, I think it would be reasonable to say that a financial institution is similar and no different in nature than a professional business office,” she said. “[However], there is the potential for a drive-through to change the character of that C-III neighborhood or zoning district. It’s not necessarily consistent with what the intent was of the zone.”

Flier explained that the addition of a drive-through was a must.

“If we were to put Merrimack Credit union inside of the building,” he said, “We would have to gut a good part of it, to make the building functional.”

Gould believes that even with a drive-through, the credit union would still be a good candidate for the C-III district and that it, “Would not be a burden on the town.”

“Nothing with the restrictions we’re putting on this financial institution would create greater commercial activity than what currently exists in these C-IIIs.” Gould said. “It would not change the character of those areas at all, it would not increase the traffic to those areas, it wouldn’t make those areas look more retail than business like.”

The board had a number of concerns, yet the members’ discussion heavily focused on the aspect of the drive-through.

“I see a particular use driving this decision, and what happens when that use is no longer a viable institution?” Asked board member Leitha Reilly. “Then we’re stuck with a drive-through. I don’t think a drive-through is appropriate in a residential area.”

Gould countered by stating, “There would never be a person trying to get a zoning change without looking for a particular use.”

Chairman Arthur Rugg brought the discussion back to the core of the request: C-III districts. “I think we all want to preserve historic structures in town, and I think this presents us a problem on our zoning.” he said. “I really want to see how it relates to C-III. I want to see what the effect of changing the zoning would do to those other properties throughout the town.”

The Chairman then opened the discussion to the public, requesting that, “Those who want to have input, be brief, be to the point, no long soliloquies, and stick to the C-III zoning.” Despite his request, the discussion would be anything but brief.

Marge Badois began by voicing her concerns about the district. “Allowing a financial institute in all of the C-III zone is probably a mistake,” she said. “By doing an ATM, whether it’s a drive up or an internal, you’re basically creating a business that’s open 24-7, and I don’t think it’s appropriate that close to residential (areas) in those zones.”

Debra Paul, former tenant of the 2 Litchfield Road property, echoed Badois’s concerns. “That area right now is more residential now than when I purchased it 10 plus years ago,” she said. “It is a very slippery slope by opening it up to all of the C-III.”

As the new owner of the property at 2 Litchfield Road, Flier claimed that the building itself and the barn belonging to it were, “Trashed, vandalized considerably,” and that wires had been cut.

Chris Paul, former owner of the property responded to Flier’s claims after the meeting, “Mr. Flier has a real problem with accuracy. He has been before a number of boards in town, and each time he makes claims the former owner, me, has neglected the building. The only time the building has been neglected is after he purchased it.”

In her statement during the meeting, Debra Paul addressed the condition of the facilities, stating, “The building, by no means was vandalized nor were wires cut. The building is very solid, and so is the barn.” Paul further mentioned that the family had done the best that they could with “Three days notice, in hundred degree weather, during a holiday weekend when very few people were around (to help).”

She also addressed Council member Jim Butler and several members of the audience who had been to the property while transitioning from her ownership over to Flier who could attest to its condition.

Planning board member, Ann Chiampa addressed the board as a member of the public, having stepped down from the board, and brought to their attention the importance of Ordinance 2006-3, an amendment to the zoning ordinance relating to the property.

The ordinance includes the following conditions: 1. The Town shall receive a historic preservation easement and historic preservation facade easement from the property owner requiring that the exterior of the historic structures be maintained in their current state, not to be altered, demolished or added to. 2. That the specific use of the property be restricted to residential and office space. 3. That no additional structures be placed upon the property unless required by the site plan regulations (i.e. drainage structures, etc…) or to accommodate utilities, all not in detriment to the historic character of the building. And 4. That no retail operations are allowed at that location.

The document was signed by Brian Farmer, the chairman of the Town Council and the Town Clerk on May 1, 2006.

Ergo, moving forward with the credit union would directly violate the conditions of the property, to add to the exterior of the historic structures or the property itself, by adding a 3,000 square foot structure, as well as the fact that it is a financial institution.

Given the violations, Cherylann Pierce proceeded to explain her disapproval of the subject matter.

“I don’t think that it’s appropriate to allow that purchaser to come up with this idea of, I need a way to make money to fix the property, because I didn’t realize the shape the property was in. It was what it is when he bought it,” she said. “I think that it’s an improper use of this board’s time, of the Town Council’s time, the zoning board has already denied it on two occasions.”

Martha Smith agreed with Pierce’s sentiments and stated that she expects more from the town departments. “Other boards have heard the whole thing and they’ve thought about it,” she said. “When they asked for the variance at the Zoning board of adjustments ZBA, it was denied, both in their first hearing and in their rehearing. I think there should be a little bit of respect among these boards.”

Following the public’s input, the board conducted another discussion to finalize their thoughts. Rugg referred to the recommendation as a “Tough decision,” due to the number of variables involved.

“We all like to preserve old houses, but I look at the issue as strictly zoning.” he said. “What has been requested affects a lot of other parts of town. I think sometimes we’re victims of consequential circumstances, so we don’t know what will happen.”

The Board’s original motion to make a recommendation to allow a financial institution smaller than 3,000 feet with a singular drive-through window in the C-III district did not pass. Therefore, another motion was made, though this time it was to make a recommendation to not allow a financial institution smaller than 3,000 feet with a singular drive-through window in the C-III district. This motion carried with a majority voting to not make a positive recommendation to the Town Council. Only Town Council liaison Jim Butler voted contrary.

The request will now be going to the Town Council, with the first public hearing anticipated to be held on Monday, Aug. 13, and a second public hearing anticipated on Monday, Sept. 10.

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