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Case #6/11/02–2 — Decision
- Philip Tatro, as managing member of Tatro Investments, and Talisman Properties, LLC have applied for a variance to the terms of Section 8.2.8 of the Wilton Zoning Ordinance, to permit an ingress-only entrance from NH Route 101 to a proposed service station and car wash on Lot F–12–6, NH Route 101, where the ordinance would require that all access to the lot be taken from Industrial Drive. For the reasons set forth below, the Town of Wilton Zoning Board of Adjustment confirms on reconsideration its previous decision to deny the requested variance.
- The Wilton Zoning Board also confirms on reconsideration, for the reasons set forth below, its previous decision not to consider the request that it find that Section 8.2.8 of the Wilton Zoning Board is not applicable to Lot F–12–6.
- This decision may be appealed to the Superior Court no later than Thursday, October 10, 2002. (N.H. RSA 677:4)
Background
In November 1997, the Planning Board of the Town of Wilton approved the subdivision of Lot F–12–1, a 74.8 acre lot located on the north side of NH Route 101 and owned by John Barnes, into five lots, F–12–2, F–12–3, F–12–4, F–12–5, and F–12–6. The approved subdivision plan also called for the construction of a town road, to be known as Industrial Drive, to serve the subdivision. (See Tax Map F, Lot 12, Subdivision Plan of Land of John G. Barnes, dated July 29, 1997.) All lots in question were and are located in the Industrial District, as defined and regulated by Section 8 of the Wilton Zoning Ordinance. (Portions of the property are also located in the Aquifer Protection overlay district, which is not relevant to this variance application.)
Tatro Investments proposes to construct a service station and car wash on Lot F–12–6 (“the Lot”), which is located at the northeast corner of the intersection of NH Route 101 and Industrial Drive, and which is now owned by Talisman Properties, LLC. The proposal includes an “entrance-only” driveway designed to allow westbound vehicles to enter the Lot directly from Route 101; eastbound vehicles would enter the Lot via Industrial Drive, and all vehicles would exit the Lot via Industrial Drive.
Section 8.1(d) of the Wilton Zoning Ordinance (“the Ordinance”) provides that “Non-residential commercial uses are permitted in the Industrial District under the same terms and conditions as the other permitted industrial uses.” Section 8.2.8 of the Ordinance requires that:
8.2.8 Access. Any lot with frontage on NH Route 101 shall be accessed by any other street or side road available and not by NH Route 101 unless no other alternative exists. If no other access is available, entrance and exit for such lot(s) shall be limited to one (1) curb cut on NH Route 101 for each lot-of-record existing as of March 8, 1988. If access to a lot is available by a street or side road other than NH Route 101, access to the lot shall be taken from the street or side road. As each lot is developed within this district, provision shall be made during the Site Plan Review process for the lay-out and construction of streets or side roads as the Planning Board shall determine necessary to permit travel between adjacent lots without accessing NH Route 101. To encourage shared lot access, where at all possible and practical, the location of all accessory street or roadway curb cuts shall be situated to allow adjacent lots to also take advantage of or share the same point of access along the street or roadway. Access to any Town road or State highway shall require Town or State permit approval.
On May 28, 2002, Philip Tatro, as managing member of Tatro Investments, and Talisman Properties, LLC (“the Applicants”) applied to the Town of Wilton Zoning Board of Adjustment (“the Board”) for a variance to Section 8.2.8 of the Wilton Ordinance to permit the proposed driveway.
The Board held a hearing on this application on June 11, 2002, at which time the Applicants reserved their rights to contest the applicability of Section 8.2.8 to the Lot on the grounds that it is preempted by the authority of the State to regulate access to state highways, and also requested that the Board find that Section 8.2.8 was not applicable to the Lot. The Board declined to issue an opinion on the validity of Section 8.2.8 as applied to the Lot, on the grounds that it had no authority to make such a determination. The hearing was continued until July 16, at which time the Board denied the requested variance, finding that there was no hardship and that the variance would be inconsistent with the spirit of the ordinance.
The Applicants filed a timely request for reconsideration (“the Motion”) on July 29. On August 13, the Board voted to hold a rehearing on September 10, at which “the applicants [might] present arguments relating to the points raised in their request for reconsideration, and/or the Zoning Board [might] elaborate on its reasons for denial of the application.”
The present decision arises from the September 10 rehearing.
Reasons for the Decision
The Motion sets forth, in essence, two reasons why the Applicants maintain that the Board’s original decision was incorrect. Firstly, Applicants maintain that Section 8.2.8 of the Ordinance, as applied to the Lot, is incompatible with RSA 236:13 and its associated case law, and that the Board therefore should find Section 8.2.8 to be inapplicable (points 2–7 and 10 of the Motion). Secondly, Applicants argue that even if Section 8.2.8 were applicable, the Board ought to have granted the requested variance (points 8, 9, and 11–15 of the Motion).
Applicability of Section 8.2.8
We decline to issue an opinion on whether Section 8.2.8, as applied to the Lot, is inconsistent with RSA 236:13 and its associated case law for two reasons:
- Neither the original application to the Board nor the Public and Abutter Notice for the hearing mentioned the issue of state preemption of local regulation or the validity of Section 8.2.8 as applied to the Lot. Complete and accurate public notice (which obviously requires a complete and accurate application) is a jurisdictional requirement for a Zoning Board to consider an issue. Therefore, the Board has no power to consider this issue in connection with this application. “The information [in the notice] should be sufficient to alert everyone to the exact nature of the appeal. … The notice should state the action the petitioner wishes to take and the type of appeal being made.” (The Board of Adjustment in New Hampshire, a Handbook for Local Officials, August 2001, by the New Hampshire Office of State Planning, page 30) The issue being raised here is not simply a theory for granting the variance, but an attack on the validity of the Ordinance and an argument that no variance is needed. It is a fundamentally different “type of appeal” from an application for a variance.
- In any case, the issue falls outside the authority and jurisdiction of the Board. The powers of a Zoning Board are narrowly determined by state law, especially RSA 674:33 and 674:33–a. In all cases, they are concerned with the interpretation and application of the Zoning Ordinance itself, not with the interpretation of State laws. The statutes make no provision for a Zoning Board to interpret State laws to find a Zoning Ordinance to be invalid or inapplicable. “Boards of adjustment should also remember that, although they have quasi-judicial powers, they are not a duly constituted court of law and cannot rule on points of law. That is, the board cannot declare an ordinance invalid because it appears to be improperly drawn or enacted or violates state or federal law. It must assume that the ordinance is legal unless declared otherwise by a court.” (The Board of Adjustment in New Hampshire, page 40)
We comment in passing on two points in the Motion.
In point 4, the Applicants claim that “the Board voted to assert jurisdiction and deny the variance.” In fact, the Board declined to claim jurisdiction with regard to this issue, and proceeded to consider the variance application under the same presumption of the validity of the Ordinance that it would apply in any other variance case.
In point 10, the Applicants claim that the last sentence of Section 8.2.8 (“Access to any Town road or State highway shall require Town or State permit approval.”) should be interpreted to waive the remainder of Section 8.2.8 in cases where a State permit has been granted. Such an interpretation is at odds with the plain language of Section 8.2.8 — the last sentence clearly imposes an additional requirement, and it makes no sense to interpret it as canceling the requirements imposed by the previous sentences of that paragraph.
Denial of the Variance
We find that denial of the variance will not result in unnecessary hardship to the Applicants; that substantial justice would not be done by granting the variance; and that permitting the proposed driveway would be contrary to the spirit and intent of the ordinance.
Unnecessary Hardship
We find that the requested variance fails to satisfy the first prong of the Simplex test for unnecessary hardship in two respects, and that it also fails to satisfy the second prong of the Simplex test.
-
“The zoning restriction as applied to the applicant’s property interferes with the applicant’s reasonable use of the property, …” The proposed use of the property in this case is for a service station and car wash. While the Applicants have argued at length that the proposed additional driveway will improve traffic flow and public safety on Route 101, they have offered no evidence that its denial will interfere with the proposed service station and car wash. They have offered only conclusory statements, with no explanation of how denial of the driveway will affect the proposed business.
The Applicants have exhibited a proposed site plan, and believe that the proposed driveway will facilitate traffic circulation on the site. We observe, though, that the site’s traffic flow must support vehicles entering via Industrial Drive in any case, and no evidence was offered that the on-site traffic flow would be impractical or unmanageable if all of the traffic, rather than only part of it, were to enter via Industrial Drive. -
“… considering the unique setting of the property in its environment.” This is “in some ways a restatement of the statutory requirement that there be something unique about this property and that it not share the same characteristics of every property in the zoning district.” (The Board of Adjustment in New Hampshire, page 15)
The Applicants have proposed that the site is unique because of the proximity of the intersection of Route 101 and Industrial Drive to the intersection of Route 101 with NH Route 31 South (approximately 650 feet). The Applicants argue that, given the amount of traffic that can be expected on Route 101 in the foreseeable future, a single center turning lane of that length would be only marginally capable of handling both the westbound traffic on Route 101 waiting to turn south onto Route 31 and the eastbound traffic on Route 101 waiting to turn north into Industrial Drive. By allowing westbound traffic to enter the Lot by the proposed additional driveway, rather than forcing it to share the Industrial Drive intersection with eastbound traffic, they propose to reduce the total congestion at the Industrial Drive intersection, and thus the amount of “stacking” of eastbound traffic at the intersection, thereby reducing the total demand on the shared turning lane.
Even if we were to accept this rather speculative chain of reasoning, the benefit in question is solely a public benefit. The concern for traffic flow and safety on Route 101 is admirable, but it has nothing to do with “the applicant’s reasonable use of the property.” We do not find that the restrictions of the Ordinance on the use of the Lot are made any more onerous by the proximity of the intersection with NH Route 31.
In point 13(a) of the Motion, the Applicants suggest that the site is unique for its 563-foot frontage on Route 101. However, the following other lots in the Industrial District have similar or longer frontages on Route 101: D–94 (2242 feet), E–17 (650 feet), F–12–2 (866 feet), F–18 (580 feet), F–19 (455 feet), F–21 (780 feet), F–24 (700 feet), F–25 (1078 feet), F–141 (582 feet), F–143 (1065 feet), F–167 (489 feet), and L–64 (550 feet). There are also Lots C–102 (666 feet), C–105 (700 feet), and F–28 (663 feet) in the Commercial District, which has the same access restriction as the Industrial District. There is, in short, no uniqueness to an Industrial or Commercial lot with long road frontage on Route 101. -
“No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property.” We refer to the Wilton Master Plan for guidance into the general purposes of the zoning ordinance. Section 8.2.8 appears to reflect the following principles from pages V–16 and V–17 of the Master Plan:
Access Management
Access Management is the process of managing the placement of driveways on roadways, especially on those roadways classified as arterials. Arterial highways are similar to limited access freeways in that their primary function is to move people and goods over long distances quickly and efficiently. However, arterials do not have the benefit of strict access controls to adjacent parcels as do limited access highways. The speed and volume of traffic on an arterial is greatly reduced due to vehicles entering and exiting side streets and driveways. In general, access management policies involve the regulation of the number of driveways, the design and placement of driveways, and the design of any roadway improvements needed to accommodate driveway traffic. The primary goal of implementing access management policies is to prevent the loss of roadway capacity due to development along arterials by reducing turning movements that conflict with through traffic.
Of primary concern to Wilton, NH 101 is an important arterial and traffic congestion is characterized as level of service "D". In order to preserve the existing roadway capacity, access management policies should be applied to future developments along NH 101. …
The following general policies can be implemented throughout Wilton through zoning ordinances and/or site plan regulation review process, and driveway permitting processes in order to achieve access management goals:
- …
- Reduce the number of curb cuts along arterials and encourage the use of common driveways for commercial developments.
- Encourage the development of service roads parallel to arterials that allow for access to adjacent commercial developments.
This, in turn, corresponds to advice found in the recent booklet Access Management Guidelines, by the Nashua Regional Planning Commission, April 2002: “Controlling the number of access points (driveways) from a site to a roadway reduces potential conflicts between cars, pedestrians and bicycles. Each parcel should only be allowed one access point as per NH RSA 236:13, III(b), and shared access should be encouraged. [page 4]” and “Joint driveways providing access to adjacent developments, and interconnections between sites, should be required for all development proposals on arterial and collector roadways. Interconnections between sites can eliminate the need for additional curb cuts, thereby preserving the capacity of the roadway. This is particularly important for commercial/industrial sites and should be used to encourage the development of internal or collector roadway systems servicing more than one parcel or establishment. Future roadway rights-of-way should also be provided to promote access to vacant parcels or to facilitate the consolidation of access points for existing developments. [page 11]”
We conclude that Section 8.2.8 of the Ordinance was enacted with the intention of optimizing traffic flow on Route 101 by minimizing the number of driveways accessing the highway, and that this intention and implementation are supported by respectable independent traffic management guidance. The proposed development of the Lot would appear to be precisely the sort of situation that Section 8.2.8 was intended to address. Therefore, we find that there is a direct, fair, and substantial relationship between the general purposes of the zoning ordinance and the specific restrictions imposed on Lot F–12–6 by section 8.2.8 of the Ordinance.
The Applicants argue that intentions of the Ordinance might be better achieved by alternative regulations which would be more compatible with their plans for the development of the Lot, such as restricting the number of egress points only, while permitting additional ingress points. This argument amounts to an invitation to the Board to redraft the Ordinance. Having found that the restriction imposed by the Ordinance implements a legitimate intention expressed in the Town’s Master Plan, it is not the place of the Board to speculate whether some alternative implementation might achieve that intention better. That is a legislative function, which must be accomplished through the Planning Board and the Town Meeting, not through the Zoning Board.
Spirit and Intent of the Ordinance
Our finding on this point mirrors our finding above that there is a direct, fair, and substantial relationship between the general purposes of the zoning ordinance and the specific restrictions imposed on Lot F–12–6 by section 8.2.8 of the Ordinance. Having concluded that Section 8.2.8 is the implementation of an intention to preserve the capacity of the roadway by minimizing the number of distinct access points, we must conclude that granting the requested variance would be inconsistent with that intention.
Substantial Justice
Lot F–12–6 was created as part of the subdivision of Lot F–12–1 in 1997. Section 8.2.8 of the Ordinance not only controls the development of individual lots, but also applies during the subdivision process. The 1997 subdivision plan (Tax Map F, Lot 12, Subdivision Plan of Land of John G. Barnes, dated July 29, 1997) clearly conforms to requirements of Section 8.2.8. The minutes of the Planning Board hearings on that subdivision (August 20, September 17, October 15, and November 19, 1997) show that the road details were a subject of discussion at those hearings. Neither the minutes nor the notes on the plan indicate that the applicant expressed any reservations with regard to Section 8.2.8 at that time.
We therefore find that any hardship that Lot F–12–6 might suffer as a result of the restrictions of Section 8.2.8 is a direct consequence of the subdivision that created Lot F–12–6 in 1997; that is, that it is a self-created hardship; and that substantial justice therefore would not be done by granting a variance now to relieve Lot F–12–6 from the restrictions of Section 8.2.8.
Conclusion
For the reasons stated above, the Board finds that the zoning restriction as applied to the applicants’ property does not interfere with the applicants’ reasonable use of the property, either inherently, or on account of the unique setting of the property in its environment; that a fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property; that granting the requested variance would be inconsistent with the spirit and intent of the zoning ordinance; and that substantial justice would not be done by granting the requested variance. Each of these findings mandates denial of the variance.
The Board has no statutory authority to render an opinion on the Applicants’ contention that Section 8.2.8 of the Wilton Zoning Ordinance is preempted by State law, and in any case the Board was procedurally precluded from considering this argument because the argument was not raised in the original variance application or in the public notice for the hearing on that application.