|
The Orion project at 25-35 Main Street photographed this week. The project begins at the newly built beige duplex structure (Building A-front portion) in the location of the motorcycle traveling on Main St. and ends at the Grange. Courtesy Todd Selig
AN EVALUATION OF CONCERNS RELATING TO THE ORION PROJECT AT 25-35 MAIN STREET -- by Todd Selig, Administrator
A number of questions have been raised by citizens and municipal board members regarding the Orion project at 25-35 Main Street within Durham’s Historic District. Concerns center around the height of the rear portion of Building A that exceeds 35 feet, streetscape drawings of the project site compared to actual constructed building heights/perspectives relative to neighboring properties, movement of a stone wall, and alteration of the municipal sidewalk.
Suggestions for future improvement are identified in BOLD red type.
Height limit. The height limit for this section of the Central Business District is 35 feet. The Table of Dimensional Requirements states that the maximum height is 30 feet but then provides that the “Maximum permitted building height in feet with Planning Board approval under RSA 674:16” is 35 feet. RSA 674:16 simply grants power to towns to establish zoning, including height. The maximum height in the zone is 50 feet but a note to the Table of Dimensional Requirements (Footnote #7 adopted by the Town Council on 1/28/13) provides that in this particular section of the Central Business District the maximum height is 35 feet.
Orion began meeting with the Historic District Commission in 2012 concerning its interest in the redevelopment of several parcels on Main Street.
Orion’s initial design review with the Durham Planning Board was held on June 26, 2013.
Height is measured from the midpoint on a building between the eaves and the ridge, per the definitions section of the Durham Zoning Ordinance, as follows: “Building Height – The vertical distance from the mean grade elevation (average grade around the perimeter of the building) to the mean roof elevation [one-half (1/2) of the vertical distance from eave to ridge].”
Note that the term “elevation” has two different meanings – a drawing of a building façade and height. In this analysis, it is used only in the former sense.
A photo of the Orion site at 25-35 Main Street as it once was prior to construction. Note the Grange (to the far right but not visible in this photo) is still substantially set back from the roadway in this image prior to its rehabilitation and relocation forward to the sidewalk in recent years. Courtesy Todd Selig
Exceeding Height Limit in Rear Portion of Building A. Code Enforcement Officer Tom Johnson and Director of Planning and Community Development Michael Behrendt measured the final drawings approved by the Historic District Commission (HDC) and on which a building permit was issued. There is only one roof among the buildings that exceeds 35 feet – the roof on the large rear portion of Building A. The midpoint of the roof is 38’ 3” so it exceeds the height limit by 3-1/4 feet. All of the other buildings on the site, including the large block for the duplex at the front of Building A, fall under the 35 foot limit.
Original HDC approval. After months of review and numerous plan submissions including the selection of a new architect, DeStefano Architects, by Orion, the HDC approved plans for the Orion project on August 22, 2013. Two pertinent conditions included:
-
Any side or rear elevations that were not shown to the Historic District Commission shall be included in the application package submitted to the Planning Board.
-
You will need to obtain site plan review from the Planning Board separately. In the event that the Planning Board approves a different design, then you would need to come back to the Historic District Commission to reconcile the two designs. Also, we understand that you may return to the Historic District Commission later when details (such as lighting, fencing, and signage) are developed.
Submission to Planning Board. The site plan for the project was then submitted to the Planning Board. A review of the elevations dated September 3, 2013 that were included in the site plan application shows the buildings and building heights to be variously the same and slightly different from what was approved by the HDC.
Michael Behrendt indicates it is difficult to discern changes as the building elevations and method of showing measurements varies for the two sets of applications. For example: the front block of Building A is shown as 90’ 10” to just above the eave in both applications but the measurement to just above the eave on the rear of Building B is 82’ 10” in the HDC drawings and 83’ 10’’ in the Planning Board drawings. None of this was called out by the applicant. Neither staff nor the Planning Board appear to have noted the changes. Mr. Behrendt indicates he expected the final drawings to go back to the HDC for a final review after site plan approval.
SUGGESTION FOR FUTURE IMPROVEMENT: Durham should evaluate its regulations to specifically require disclosure of changes from one plan set to another by the applicant.
SUGGESTION FOR FUTURE IMPROVEMENT: Measurements from one plan set to another should be undertaken in a consistent manner for easy comparison by all concerned.
Variances. According to meeting minutes and an associated ZBA Notice of Decision, on December 10, 2013 the Zoning Board of Adjustment approved a variance to increase the height of two of the Orion buildings in excess of 35 feet.
Two different sets of drawings were submitted with the application - one set of the same site plans as submitted to the Planning Board dated September 3, 2013, and a set of color drawings dated September 11, 2013 which included elevations of portions of Buildings A and B, a streetscape, and other drawings.
The Zoning Board agenda item read, “…to permit two of the five proposed buildings to exceed 35 feet…”. The Notice of Decision approval letter signed December 16, 2013 by Sean Starkey, ZBA Chair, reads the variance was granted “…to permit two of the six proposed buildings to exceed 35 feet in height…” without any conditions. However, the question arises whether this approval was keyed to the specific drawings that were submitted. Neither the posted agenda item nor the motion read by the Zoning Board to open the public hearing on December 10, 2013 included language that referenced submitted drawings.
The written minutes state:
Sean Starkey MOVED to grant a petition submitted by Orion, UNH LLC, Durham, New Hampshire for an APPLICATION FOR VARIANCES from Article XII, Section 175-41(F)(1, 5, 7 & 8), Article XII, Section 175-53 and Section 175-54 of the Zoning Ordinance to permit residential units on all floors of Building #25, Building #35, Building B and the rear section of Building A; to permit two of the six proposed buildings to exceed 35 feet; and to allow parking spaces and a dumpster behind the 5 buildings fronting on Main Street, as shown on the plans issued for Planning Board review dated September 4, 2013, Exhibit 4, from Allen and Major Associates, and dated September 11, 2013 Exhibit 5 from deStefano Architects, for the properties shown on Tax Map 5, Lot 1-6, 1-7 and 1-8, and located at 25-27 Main Street, 29 Main Street and 35 Main Street, in the Central Business Zoning District. Kathy Bubar SECONDED the motion, and it PASSED unanimously 5-0.
The Notice of Decision signed by the ZBA Chair on December 16, 2013 reads:
that the Zoning Board of Adjustment approve a petition submitted by Orion UNH LLC, Durham, NH for an APPLICATION FOR VARIANCES from Aritcle XII, Section 175-41(F)(1, 5, 7, & 8) and Article XII, Section 175-53 and Section 175-54 of the Zoning Ordinance to permit residential units on all floors of four out of the six proposed buildings, to permit two of the six proposed buildings to exceed 35 feet in height, and to allow parking spaces and dumpsters behind the 5 buildings fronting on Main Street and in front of Building B at the rear of the lot.
The motion PASSED on a vote of 5-0-0 and the application for variances was granted.
Notices of Decision for Zoning Board decisions are prepared by the Administrative Assistant for the Planning, Zoning, and Assessing Office utilizing language forwarded to her by the ZBA’s minute taker. Notices of Decision in draft form are reviewed by the Zoning Administrator and then carefully reviewed once again and signed by the ZBA Chair. Often the Notice of Decision is produced and signed prior to the ZBA formally approving minutes for the meeting in question because both the applicant and the abutters/interested parties want to know the outcome of board action quickly. This requires the Administrative Assistant to contact the minute taker for the meeting shortly after the meeting takes place to obtain the actual wording for the Notice of Decision.
Note that the section of the motion in the approved minutes pertaining to height which reads “to permit two of the six proposed buildings to exceed 35 feet;” is separated from the reference to the included plans” by both a semicolon and the words “; and to allow parking spaces and a dumpster behind the 5 buildings fronting on Main Street,”. A question therefore arises whether the plans referenced at the end of the motion refer only to the parking spaces and the dumpster, rather than to the issue of height.
Minute exerpts follow from December 10, 2013 with conflicting information:
The ZBA meeting minutes from December 10, 2013, Page 4, read: “He [Attorney Tim Phoenix representing Orion] said a second variance was requested concerning building height, and said he had applied for this out of an abundance of caution. He said the variance request applied to Building B and the back of Building A, which were 35 ft or less in height, depending on how this was measured. He noted that the Ordinance allowed the Planning Board to permit a height up to 50 ft, and said if Mr. Johnson confirmed that this was the case and the Board agreed, this application could be withdrawn.”
The minutes of the ZBA meeting on December 10, 2013, Page 14, read as follows: “Ms. Bubar asked if this [height] variance was needed. Mr. Johnson said the Planning Board had some flexibility concerning the building height, but said there was no harm in the ZBA granting a variance for a building height between 35 – 50 ft. Chair Starkey agreed, and said the Planning Board could decide on the height. Ms. Bubar said she didn’t have a problem with exceeding 35 ft, in looking at how the height had come down so visually one wouldn’t really see the buildings in the back.”
The minutes of the ZBA meeting on December 10, 2013, Page 16, read: “Chair Starkey asked if there were any concerns about any of the variance criteria being met. No concerns were expressed by the Board.”
Page 16 of the ZBA minutes from December 10, 2013 addresses height in part once again and read: “It was noted that the wording on the agenda concerning the variance request “to permit residential units on all floors of two of the five proposed buildings” was incorrect. It was also noted that the wording on the agenda concerning building height was worded incorrectly. It was agreed that these details in the plans submitted with the application were correct and should be referenced in the motion.”
The Planning Board’s own Notice of Decision for the Orion Student Housing project (Strafford County Registry of Deeds, Book 4220, Page 0432) specifically references variances issued in the Subsequent and General Terms and Conditions section in Bullet #39 on Page 20: “. . . and for two buildings to exceed 35 feet in height.” No restrictions are noted regarding height.
Michael Behrendt indicates he referenced the Zoning Board’s Notice of Decision relative to the height issue as opposed to the actual ZBA minutes during the Planning Board and Historic District Commission proceedings. The formal Notices of Decision stated only: “ . . . to permit two of the six proposed buildings to exceed 35 feet in height . . .”. Mr. Behrendt therefore believed that there was no need for Orion to return to the Zoning Board of Adjustment to seek additional variance relief. When queried on this point during the approval process, Mr. Behrendt referred to the Notice of Decision indicating no further action was needed by the ZBA.
Upon being interviewed by Administrator Selig in June 2015, Mr. Johnson indicated that at the time of the Orion application before the Zoning Board of Adjustment in December 2013, he was unknowingly using an older version of the Zoning Ordinance that did not possess the newly inserted Footnote #7 adopted by the Town Council on January 28, 2013 limiting the height in this portion of the Central Business District zone to 35 feet rather than 50 feet. Mr. Johnson was therefore of the understanding that the Planning Board could approve a project up to 50 feet in height.
SUGGESTION FOR FUTURE IMPROVEMENT: Additional measures should be developed to ensure Notices of Decision are precisely accurate and are consistent with meeting minutes.
SUGGESTION FOR FUTURE IMPROVEMENT: The Zoning Board and staff should endeavor to ensure that motions are very clear in their intent and specifically include all items referenced.
SUGGESTION FOR FUTURE IMPROVEMENT: When new zoning changes are enacted, every copy of the Zoning Ordinance for the Town of Durham should be promptly updated within the Town Hall and on line.
Planning Board approval. The applicant then submitted an updated set of plans for the project to the Planning Board that included the building elevations. The elevation revisions are dated December 20, 2013 and simply state “Revs [revisions] per Town comments.” There is no explanation of any specific changes from the prior set of plans.
The December 20, 2013 drawings incorporate an increase in the height of some of the buildings. Again, Michael Behrendt indicates it is a challenge to discern the precise changes from the prior set of drawings because the specific elevations submitted and the manner in which the heights are measured/ depicted are not consistent in the two sets of drawings.
SUGGESTION FOR FUTURE IMPROVEMENT: In addition to ensuring a consistent means of depicting measurements, the applicant should be required to list changes from one plan set to another for use by staff and the relevant land use board.
The Planning Board’s site plan approval of January 29, 2014 stated:
-
Historic District Commission review. Pursuant to the purview of the HDC specified in the Zoning Ordinance, obtain approval from the HDC for all: a) architectural changes developed after the initial HDC approval on August 22, 2013; b) lighting fixtures; c) paver designs and patterns; d) fences; and e) signage. Incorporate the final HDC approval into the plan set.
-
Architectural plans. Submit two final sets of 11x17 paper copies in color of the approved architectural elevations in color (one for the Building Official). All of the building designs approved by the Historic District Commission, including colors and materials are part of this approval.
Final HDC Approval. The applicant returned to the HDC one last time on April 3, 2014 for review of changes made since the HDC’s August 22, 2013 approval.
The applicant submitted an updated set of drawings for all of the buildings, including a memo that generally itemized changes including various issues related to the site and the following (in part):
-
“The presentation is of all building elevations (only half were previously presented)”
-
“Minor revisions to the roof line and windows, including transoms in Building A, for coordination with site grading and interior layout.”
-
“Coordination of bike racks, dumpster enclosure, site retaining walls, etc. is shown”
The Planner also provided a list of recommendations to the HDC that suggested the board review each sheet in the plan set provided.
In these drawings submitted to the HDC on April 3, 2014 some of the rooflines were increased above those in the last set of plans approved by the Planning Board.
Orion's one dimentional front on architectural image presented to the HDC by DeStefano Architects on April 3, 2013 and approved. Note the difference between this image and the panoramic photo below that attempts to reproduce this rendering and the perspective challenges that are created in doing so. Courtesy Todd Selig
Mr. Behrendt indicates it is a challenge to discern the precise increases as the drawings and types of measurements provided are not consistent. For example, the eave line in the block at the front of Building A increased 1-1/2 feet. The eave line for Building B appears to be slightly higher according to Mr. Behrendt but it is challenging to discern comparing the two sets of drawings.
After a great deal of discussion on several matters and a number of motions, the HDC ultimately approved the complete set of updated drawings at its meeting on April 3, 2014.
During the meeting, the HDC had discussed whether an additional public hearing should be scheduled on the new submittal but the prevailing sentiment on the board was that the elevations/project had been sufficiently discussed publicly at the Planning Board level for some time and an additional public hearing was not necessary.
The plan set possessed by the HDC on April 3, 2014 contained heights and a scale drawing for the rear portion of Building A. Relying upon the Zoning Board of Adjustment’s notice of decision from December 16, 2013, Mr. Behrendt did not identify an issue with the heights shown.
Actual Construction Height of Buildings at Orion Project. Code Enforcement Officer Tom Johnson has evaluated the drawings for which the building permit was issued and they match those approved by the HDC on April 3, 2014 in terms of the heights shown for the actual buildings. No streetscape was submitted with the building permit. Neither 21 Main Street nor the former Grange are part of the Orion project. Lisa DeStefano indicated that the building heights, mass, and grades of buildings under construction at the Orion project are per the approved plans and are consistent with what the HDC approved in April 2014.
A panoramic image of the Orion site standing on opposite sidewalk along Main St. The frame of one of two additional smaller commercial buildings is now taking form (center right). These additional two buildings will complete the streetscape approved by the HDC on April 3, 2014 and screen the larger residential building (shown here with pink insulation still exposed) now seen behind. Note that it is not possible to reproduce the DeStefano one dimensional front on image (shown above) in the field. This was an attempt to do so by Mr. Selig. Courtesy Todd Selig
Given the series of events described in this report, the applicant had every reason to believe that approval had been duly granted by the Town for the project to exceed the 35 foot height limitation for the rear portion of Building A. Concern was not raised by the Zoning Board, the Planning Board, the Historic District Condition, the Planner, or the Code/Zoning Officer that an issue existed with respect to the height of Building A until the structure was in effect substantially constructed. The applicant relied upon formal Notices of Decision issued by the Zoning Board and the Planning Board as described herein, as well as conversations with various appropriate Durham officials, before proceeding with construction. While the Administrator maintains an open mind, at this time it is the Administrator’s opinion that the Town would be estopped from taking further action in this matter.
SUGGESTION FOR FUTURE IMPROVEMENT: For a significant project within the Historic District involving demolition, a subsequent public hearing should be held to give every opportunity for concerns to be identified and addressed.
Streetscape Drawing Reviewed. A new streetscape drawing had been included in the elevations submitted to the HDC for its April 3, 2014 meeting. This streetscape drawing ultimately created a significant challenge for the HDC and the community in general.
The streetscape includes an outline of the building on the adjacent lot to the left of the site, the white clapboard building, at 21 Main Street. It is shown with a white outline and horizontal dashed lines, ostensibly depicting the foundation, eave, and ridgeline. In the streetscape the eave and ridgelines of the front block of Building A are shown as being slightly higher than those of 21 Main Street. As the building is actually today constructed, the eave and ridgelines appear to be at least several feet higher than those of 21 Main Street. If 21 Main Street was depicted larger than it actually was, then it would have made the front block of Building A look relatively smaller than its actual size.
The "ghost buildg" (left) with an address of 21 Main St. is shown only slightly lower than the front portion of the beige Building A above. This image was included in HDC plan set on April 3, 2014 and approved. Courtesy Todd Selig
In reality, the height of the front portion of Building A is higher than illustrated as shown in the view above. Courtesy Todd Selig
In a conversation between Administrator Todd Selig and Lisa DeStefano, the architect for the project, Ms. DeStefano indicated after questioning by Mr. Selig that the white shadow sketches of the buildings immediately to the left and right of the actual Orion project area shown on the plan set the HDC approved on April 3, 2014 are an approximation of the mass of those adjacent structures. She indicates DeStefano Architects never in fact went onto those adjacent properties to take actual measurements of those structures. The HDC did not possess this critical information at the time the project was being reviewed.
The plan set approved by the HDC on April 3, 2014 does contain numerous sheets and the actual heights of Building A are noted. However, the HDC focused its attention predominantly on the streetscape drawing.
This image depicts the heights shown for the front portion of Building A included and approved as part of the HDC packet/plan set on April 3, 2014.
Section 175-95 A 3 of the Historic Overlay District, Procedures for Review of a Certificate of Approval, requires the applicant to submit, “Elevation drawings to scale of each affected façade of the building, structure or sign, clearly depicting existing conditions and proposed work.” The offsite structures (the "ghost buildings") were not part of the actual Orion project.
SUGGESTION FOR FUTURE IMPROVEMENT: In the future, the Town should require actual heights be obtained and included by the applicant to scale for the project site and immediately adjacent structures.
Should Alteration of the Stone Wall between 21 Main Street and Building A Have Been Approved by the HDC? The Planning Board did receive an existing conditions drawing and in a number of locations within the Planning Board and early HDC files it is possible to identify symbols for the stone wall that once existed along the rear portion of the boundary between 21 Main Street and Building A on various plan views. A note on one of the Planning Board approved plan sets in fact states that the stone wall in this location may be removed as necessary.
The existing stone wall today as seen from Main St. between 21 Main St. (the "ghost building") and Building A. Courtesy Todd Selig
Tom Johnson indicates that a good portion of the stone wall was located behind the adjacent offsite historic structure that is 21 Main Street, was in poor repair, and was actually laying largely along the property of 21 Main Street.
Administrator Selig has walked the site and observed the situation today. A portion of the historic stone wall between Building A and 21 Main Street remains intact today for approximately 5-6 feet at the intersection of the sidewalk, transitions into the stone foundation of 21 Main Street for the length of the building, continues for another 6-10 feet, and then disappears in the distance as the structures are very close together.
A newly constructed long retaining wall in this location was depicted on the plan set approved by the HDC on April 3, 2014.
Administrator Selig has looked at Google Earth photographic printouts in the file of the pre-construction conditions and the rear stone wall area beyond 21 Main Street’s stone foundation is obscured. Judging from the Google Earth imagery, from the street one would likely have gazed out toward the stone wall upon an area grown over with plants, trees, and shrubs. It would have likely been challenging to see the rear portion of the stone wall from the street prior to construction.
The retaining wall separating rear portion of Building A (on left in yellow) from abutting property. A stone wall in poor condition used to be located in this area primarily on the property of 21 Main St. (while buildings on right) Photo taken standing on property pin. Courtesy Todd Selig
Visibility of the wall from the street would have been a factor the HDC would have weighed in determining whether it had jurisdiction but as we now know, the stone wall was never discussed in that venue.
SUGGESTION FOR FUTURE IMPROVEMENT: In retrospect, staff should have brought the matter of the stone wall to the attention of the HDC, the applicant should have flagged the issue for staff and the board, and the HDC should have been attentive to whether stone walls or other important historic features were going to be altered on the site during the project site walk and subsequent discussions.
Expanded Sidewalk in front of Orion Project. The expanded sidewalk in front of the Orion project site was shown in the plan sets that HDC had in its possession and approved on April 3, 2014. There is a question of whether a Town sidewalk is within the jurisdiction of the HDC. Public Works Director Mike Lynch does not remember requesting the HDC to approve sidewalk modifications in the past although in fairness the Town has made few such modifications over the years. Although it is unfortunate the matter was not specifically raised and discussed with the HDC, the board did possess a plan set that showed the sidewalk work to be performed during its deliberations on April 3, 2014.
A portion of the Layout and Materials plan sheet approved by the HDC on April 3, 2014 noting sidewalk changes in front of Orion project. Courtesy Todd Selig
Additional Suggestions for Future Projects in the Historic District.
• Clarify and be specific about the types of drawings required by the Town so that the HDC can be most effective in evaluating proposals submitted to it for approval.
• Ask for dimensions of everything on the outside of the building. Dimensional data should already be available in the CAD files used by architectural firms. This requirement could be waived in the discretion of the HDC for a less complex project.
• Require the perspectives of the project from all views from public ways. In the example of Orion, we might evaluate whether it would have been helpful to have required a view from the Mill Plaza as well.
• Require that the applicant provide accurate, to scale dimensions/heights of each building within the project area and also of the immediately adjacent structures, or of other structures the board deems appropriate for its review.
• Ensure the HDC receives an existing conditions plan at the outset of the application process.
• Once the Orion project is complete, schedule a site walk with members of the Planning Board, ZBA, HDC, and staff and hold a Kaizen workshop to discuss additional areas for future process improvement for future projects of this size and scope.
|
NEWS AND HAPPENINGS ... 
