DEVELOPMENT REVIEW BOARD BENNINGTON FIRE DEPARTMENT, 3RD FLOOR 126 RIVER STREET BENNINGTON, VT 05201 MINUTES DECEMBER 2, 2003 BOARD MEMBERS PRESENT: Michael Brady-Chair, Barry Horst, Bill Barney, Janet Thompson, Ron Alderman, Charles Copp, James Jerome, Michael vonOuhl, and Al Ray. OTHERS PRESENT: Dan Monks-Planning Director, Jim Secor, Dana Prudence, and David Haarmeyer, Jr. 1. MINUTES OF NOVEMBER 18, 2003 Barry Horst moved and Bill Barney seconded approval of the Minutes of November 18, 2003 amended as follows: Line #62 The motion was not carried. The motion carried unanimously. 2. READING OF THE WITNESS OATH: Dan Monks read the Witness Oath. 3. DISCLOSURE OF EX PARTE COMMUNICATIONS AND CONFLICTS OF INTEREST: James Jerome recused himself from 7. BLS Bennington, Wal-Mart, 210 Northside Drive, site plan review of outdoor display in parking lot. 4. ALTERNATE VOTING MEMBERS: None 5. CHARLES WOOD/BETH SAUSVILLE, 512 MAIN STREET Tropical Mist, design review of sign. Barry Horst stated the HPC had no problems with the sign, it meets all the setbacks and the panel recommends approval. James Jerome moved and Charles Copp seconded approval of design review of sign. The motion carried unanimously. 6. JAMES CAREY, 223 UNION STREET Site plan and use review of third dwelling unit. Barry Horst stated this is in the OA District, there are no setback changes, photo sensitive outside lights will be used and will be sensitive to direction, existing parking meets requirements, and panel recommends approval. Ron Alderman moved and Charles Copp seconded approval of site plan and use review of third dwelling unit. The motion carried unanimously. 7. BLS BENNINGTON, WAL-MART, 210 NORTHSIDE DRIVE Site plan review of outdoor display in parking lot. Michael Brady stated in their outline this deliberation would be closed or open at the Board's discretion and this is a full site plan review and would be a closed deliberation. Michael Brady expressed the Board's concerns: * Exact square footage of the retail space outside * The actual number of spaces needed or extra spaces left * Safety concerns * Loading and traffic flow concerns * Possibility of a better location or a long-term solution of retail space. David Haarmeyer stated the exact square footage for the seasonal display is 6,642 feet. Concerns of moving the temporary retail space to a better location: 1. Moving to the back of the building would put the customers in the eighteen-wheeler/truck delivery lane and was seen as a greater issue than being in the parking lot. 2. The south end of the building would have to be redeveloped because it is not usable as it is now. We would need to have this Board's approval and Mr. Levy's intention to redevelop. 3. Current site plan and spaces not available would interfere with propane issues and delivery. David stated the original site still holds the safest and most convenience for the customers. There were concerns of having open lanes available to travel in the center that is part of the actual 6, 642 square feet and part of this was restricted as a loading lane, pulling vehicles out of the two drives into the actual area, and trucks being loaded. This would also keep the traffic and fire lane from being blocked and for the safety of the associates loading at that time. Charles Copp asked if Mr. Levy had been approached to use the south end of the building and David stated Mr. Levy did not respond to his call. David also stated this area would have to be redeveloped because the pallet merchandise and fork lifts would not be usable in that area, it would need to be graded, paved, additional lining, and possibly a fence if needed to improve the property. Barry Horst asked if there were any plans to move this temporary sales area to a conventional addition to Wal-Mart and David stated the company has been looking to expand but has not been agreed upon at this time. Barry also asked if this location is being considered as a semi-permanent location or are these plans for this year only and the applicant stated it would be for this year only. Barry Horst asked Dan Monks if the applicant was aware of the document from Wendy's and Dan stated he did give a copy to the applicant. This is a copy of the Act 250 decision regarding the parking area and Wendy's permit was issued contingent upon not being displayed in the area. The property owner will have to deal with Act 250 if this Board grants a permit. Michael Brady asked David if he is aware of any incidents that have occurred in the last year concerning any safety to its employees, customers, or any public that is using the parking lot and David stated there was an issue with the initial plan last year that needed an amendment for the drive not being available to the customers and a trip and fall on the sidewalk not due to the seasonal space area, it was in a space used year round on the front sidewalk. Micheal also asked if the applicant was comfortable with the operation of the seasonal space last year and David stated yes. Michael vonOuhl moved and Ron Alderman seconded to close the hearing. The motion carried unanimously. 8. ROBERT BEAROR, BENNINGTON MOTOR CAR GROUP, INC., ROUTE 7 SOUTH Dan Monks stated this is the first of two required hearings. Michael Brady stated there are two things before the Board and one is the site plan and the other is nonconforming use. Michael suggested the Board deal with the nonconforming use issue first. This is an expansion of a nonconforming use by the creation of nonconforming use on an adjacent property. If the Board feels in the positive that an expansion for this nonconforming use is permitted under our bylaws then we will continue with the site plan. If the Board feels this is not permitted then preliminary approval would be denied. Jim Secor stated their proposal is to expand into this lot that was originally one continuous lot. The main reason for the expansion would be to increase their product lines. Jim feels this lot could not be supported on its own without municipal water and sewer. The existing lot has very poor soil for an onsite septic, the lands are wet, there is ledge, and the only place they could find for an acceptable location for a septic is on this adjacent lot. There was discussion regarding developing behind the building, it is feasible but expensive due to the same concerns with the soil and water conditions and would be more visible off site because of the grade change. Ron Alderman asked the applicant why the Board should consider this as nonconforming use and Jim stated this one piece was a nonconforming use permitted by the town and cannot stand alone. Michael Brady stated under general requirements, no nonconforming use shall be created under the variance portions or any other provision of this bylaw. Michael feels the applicant's issue is with the Planning Commission in changing the zoning. Bill Barney asked if we vote no on this what is their alternative and Dan Monks stated they could expand on the lot itself or seek the Planning's Commission approval of a change in that zone. Dan also stated this would be a significant change because you are talking about allowing commercial uses in an area that was residential. The only location car sales are allowed under zoning is currently in the commercial-industrial district. Dana Prudence commented this is an expansion of an existing nonconforming use and Michael stated this is a creation of a new nonconforming use. Dana asked the Board if they should go before the Planning Board and Michael stated yes if you want to change the zoning. Michael vonOuhl moved and James Jerome seconded to uphold a decision of the Zoning Administrator that the nonconforming use is not appropriate on this lot. The motion carried eight in favor and one opposed. Michael Brady stated the preliminary approval was denied, there is a second hearing possible next week and the applicant is welcome to come back and go through that hearing process. If you have any other evidence or anything you would like to present to the Board to be reconsidered another vote can be taken. The options are to withdraw the application at this point and go before the other town bodies to try changing the zoning area or make a ruling on the final next week, which would be a denial. 9. OTHER BUSINESS No other business. At 8:05 P.M. Michael vonOuhl moved and James Jerome seconded to adjourn the meeting and go into Deliberative Session to discuss BLS Bennington, Wal-Mart, 210 Northside Drive, site plan review of outdoor display in parking lot. . The motion carried unanimously. Respectfully submitted Christa LeBlanc, Record Secretary